Freedom of Information Act: Processing Trends Show Importance of Improvement Plans
Released: 2007-03-30T00:00:00

Letter

Background

FOIA establishes a legal right of access to government records and information, on the basis of the principles of openness and accountability in government. Before the act (originally enacted in 1966), an individual seeking access to federal records had faced the burden of establishing a right to examine them. FOIA established a “right to know” standard for access, instead of a “need to know,” and shifted the burden of proof from the individual to the government agency seeking to deny access.

FOIA provides the public with access to government information either through “affirmative agency disclosure”—publishing information in the Federal Register or on the Internet, or making it available in reading rooms—or in response to public requests for disclosure. Public requests for disclosure of records are the best known type of FOIA disclosure. Any member of the public may request access to information held by federal agencies, without showing a need or reason for seeking the information.

Not all information held by the government is subject to FOIA. The act prescribes nine specific categories of information that are exempt from disclosure: for example, trade secrets and certain privileged commercial or financial information, certain personnel and medical files, and certain law enforcement records or information (app. IX provides the complete list). In denying access to material, agencies may cite these exemptions. The act requires agencies to notify requesters of the reasons for any adverse determination (that is, a determination not to provide records) and grants requesters the right to appeal agency decisions to deny access.

In addition, agencies are required to meet certain time frames for making key determinations: whether to comply with requests (20 business days from receipt of the request), responses to appeals of adverse determinations (20 business days from filing of the appeal), and whether to provide expedited processing of requests (10 calendar days from receipt of the request). The Congress did not establish a statutory deadline for making releasable records available, but instead required agencies to make them available promptly.

The FOIA Process at Federal Agencies

Although the specific details of processes for handling FOIA requests vary among agencies, the major steps in handling a request are similar across the government. Agencies receive requests, usually in writing (although they may accept requests by telephone or electronically), which can come from any organization or member of the public. Once received, the request goes through several phases, which include initial processing, searching for and retrieving responsive records, preparing responsive records for release, approving the release of the records, and releasing the records to the requester. Figure 1 is an overview of the process, from the receipt of a request to the release of records.

During the initial processing phase, a request is logged into the agency’s FOIA system, and a case file is started. The request is then reviewed to determine its scope, estimate fees, and provide an initial response to the requester (in general, this simply acknowledges receipt of the request). After this point, the FOIA staff begins its search to retrieve responsive records. This step may include searching for records from multiple locations and program offices. After potentially responsive records are located, the documents are reviewed to ensure that they are within the scope of the request.

During the next two phases, the agency ensures that appropriate information is to be released under the provisions of the act. First, the agency reviews the responsive records to make any redactions based on the statutory exemptions. Once the exemption review is complete, the final set of responsive records is turned over to the FOIA office, which calculates appropriate fees, if applicable. Before release, the redacted responsive records are then given a final review, possibly by the agency’s general counsel, and then a response letter is generated, summarizing the agency’s actions regarding the request. Finally, the responsive records are released to the requester.

Some requests are relatively simple to process, such as requests for specific pieces of information that the requester sends directly to the appropriate office. Other requests may require more extensive processing, depending on their complexity, the volume of information involved, the need for the agency FOIA office to work with offices that have relevant subject-matter expertise to find and obtain information, the need for a FOIA officer to review and redact information in the responsive material, the need to communicate with the requester about the scope of the request, and the need to communicate with the requester about the fees that will be charged for fulfilling the request (or whether fees will be waived).

Specific details of agency processes for handling requests vary, depending on the agency’s organizational structure and the complexity of the requests received. While some agencies centralize processing in one main office, other agencies have separate FOIA offices for each agency component and field office. Agencies also vary in how they allow requests to be made. Depending on the agency, requesters can submit requests by telephone, fax, letter, or e-mail or through the Web. In addition, agencies may process requests in two ways, known as “multitrack” and “single track.” Multitrack processing involves dividing requests into two groups: (1) simple requests requiring relatively minimal review, which are placed in one processing track, and (2) more voluminous and complex requests, which are placed in another track. In contrast, single-track processing does not distinguish between simple and complex requests. With single-track processing, agencies process all requests on a first-in/first-out basis. Agencies can also process FOIA requests on an expedited basis when a requester has shown a compelling need or urgency for the information.

As agencies process FOIA requests, they generally place them in one of four possible disposition categories: grants, partial grants, denials, and “not disclosed for other reasons.” These categories are defined as follows: Grants: Agency decisions to disclose all requested records in full.

Partial grants: Agency decisions to withhold some records in whole or in part, because such information was determined to fall within one or more exemptions.

Denials: Agency decisions not to release any part of the requested records because all information in the records is determined to be exempt under one or more statutory exemptions.

Not disclosed for other reasons: Agency decisions not to release requested information for any of a variety of reasons other than statutory exemptions from disclosing records. The categories and definitions of these “other” reasons for nondisclosure are shown in table 1.

When a FOIA request is denied in full or in part, or the requested records are not disclosed for other reasons, the requester is entitled to be told the reason for the denial, to appeal the denial, and to challenge it in court.

The Privacy Act Also Provides Individuals with Access Rights

In addition to FOIA, the Privacy Act of 1974 includes provisions granting individuals the right to gain access to and correct information about themselves held by federal agencies. Thus the Privacy Act serves as a second major legal basis, in addition to FOIA, for the public to use in obtaining government information. The Privacy Act also places limitations on agencies’ collection, disclosure, and use of personal information.

Although the two laws differ in scope, procedures in both FOIA and the Privacy Act permit individuals to seek access to records about themselves—known as “first-party” access. Depending on the individual circumstances, one law may allow broader access or more extensive procedural rights than the other, or access may be denied under one act and allowed under the other. Consequently, the Department of Justice’s Office of Information and Privacy issued guidance that it is “good policy for agencies to treat all first-party access requests as FOIA requests (as well as possibly Privacy Act requests), regardless of whether the FOIA is cited in a requester’s letter.” This guidance was intended to help ensure that requesters receive the fullest possible response to their inquiries, regardless of which law they cite.

In addition, Justice guidance for the annual FOIA report directs agencies to include Privacy Act requests (that is, first-party requests) in the statistics reported. According to the guidance, “A Privacy Act request is a request for records concerning oneself; such requests are also treated as FOIA requests. (All requests for access to records, regardless of which law is cited by the requester, are included in this report.)”

Although FOIA and the Privacy Act can both apply to first-party requests, these may not always be processed in the same way as described earlier for FOIA requests. In some cases, little review and redaction (see fig. 1) is required, such as, for example, a request for one’s own Social Security benefits records. In contrast, various degrees of review and redaction could be required for other types of first-party requests: for example, files on security background checks would need review and redaction before being provided to the person who was the subject of the investigation.

Roles of OMB and Justice in FOIA Implementation

OMB and the Department of Justice both have roles in the implementation of FOIA. Under various statutes, including the Paperwork Reduction Act, OMB exercises broad authority for coordinating and administering various aspects of governmentwide information policy. FOIA specifically requires OMB to issue guidelines to “provide for a uniform schedule of fees for all agencies.” OMB issued this guidance in April 1987.

The Department of Justice oversees agencies’ compliance with FOIA and is the primary source of policy guidance for agencies. Specifically, Justice’s requirements under the act are to make agencies’ annual FOIA reports available through a single electronic access point and notify the Congress as to their availability; in consultation with OMB, develop guidelines for the required annual agency reports, so that all reports use common terminology and follow a similar format; and submit an annual report on FOIA litigation and the efforts undertaken by Justice to encourage agency compliance.

Within the Department of Justice, the Office of Information and Privacy has lead responsibility for providing guidance and support to federal agencies on FOIA issues. This office first issued guidelines for agency preparation and submission of annual reports in the spring of 1997. It also periodically issues additional guidance on annual reports as well as on compliance, provides training, and maintains a counselors service to provide expert, one-on-one assistance to agency FOIA staff. Further, the Office of Information and Privacy also makes a variety of FOIA and Privacy Act resources available to agencies and the public via the Justice Web site and on-line bulletins (available at www.usdoj.gov/oip/index.html).

Annual FOIA Reports Were Established by 1996 Amendments

In 1996, the Congress amended FOIA to provide for public access to information in an electronic format (among other purposes). These amendments, referred to as e-FOIA, also required that agencies submit a report to the Attorney General on or before February 1 of each year that covers the preceding fiscal year and includes information about agencies’ FOIA operations. The following are examples of information that is to be included in these reports: number of requests received, processed, and pending; median number of days taken by the agency to process different types of determinations made by the agency not to disclose information and the reasons for not disclosing the information; disposition of administrative appeals by requesters; information on the costs associated with handling of FOIA requests; and full-time-equivalent staffing information.

In addition to providing their annual reports to the Attorney General, agencies are to make them available to the public in electronic form. The Attorney General is required to make all agency reports available online at a single electronic access point and report to the Congress no later than April 1 of each year that these reports are available in electronic form. (This electronic access point is www.usdoj.gov/oip/04_6.html.)

In 2001, in response to a congressional request, we prepared the first in a series of reports on the implementation of the 1996 amendments to FOIA, starting from fiscal year 1999. In these reviews, we examined the contents of the annual reports for 25 major agencies (shown in table 2). They include the 24 major agencies covered by the Chief Financial Officers Act, as well as the Central Intelligence Agency and, until 2003, the Federal Emergency Management Agency (FEMA). In 2003, the creation of the Department of Homeland Security (DHS), which incorporated FEMA, led to a shift in some FOIA requests from agencies affected by the creation of the new department, but the same major component entities are reflected in all the years reviewed.

Our previous reports included descriptions of the status of reported FOIA implementation, including any trends revealed by comparison with earlier years. We noted general increases in requests received and processed, as well as growing numbers of pending requests carried over from year to year.

In addition, our 2001 report disclosed that data quality issues limited the usefulness of agencies’ annual FOIA reports and that agencies had not provided online access to all the information required by the act as amended in 1996. We therefore recommended that the Attorney General direct the Department of Justice to improve the reliability of data in the agencies’ annual reports by providing guidance addressing the data quality issues we identified and by reviewing agencies’ report data for completeness and consistency. We further recommended that the Attorney General direct the department to enhance the public’s access to government records and information by encouraging agencies to make all required materials available electronically. In response, the Department of Justice issued supplemental guidance, addressed reporting requirements in its training programs, and continued reviewing agencies’ annual reports for data quality. Justice also worked with agencies to improve the quality of data in FOIA annual reports.

Executive Order Required Agencies to Take Several Actions to Improve FOIA Operations

On December 14, 2005, the President issued an Executive Order setting forth a policy of citizen-centered and results-oriented FOIA administration. Briefly, FOIA requesters are to receive courteous and appropriate services, including ways to learn about the status of their requests and the agency’s response, and agencies are to provide ways for requesters and the public to learn about the FOIA process and publicly available agency records (such as those on Web sites). In addition, agency FOIA operations are to be results oriented: agencies are to process requests efficiently, achieve measurable improvements in FOIA processing, and reform programs that do not produce appropriate results.

To carry out this policy, the order required, among other things, that agency heads designate Chief FOIA Officers to oversee their FOIA programs, and that agencies establish Requester Service Centers and Public Liaisons to ensure appropriate communication with requesters. The Chief FOIA Officers were directed to conduct reviews of the agencies’ FOIA operations and develop improvement plans to ensure that FOIA administration was in accordance with applicable law as well as with the policy set forth in the order. By June 2006, agencies were to submit reports that included the results of their reviews and copies of their improvement plans. The order also instructed the Attorney General to issue guidance on implementation of the order’s requirements for agencies to conduct reviews and develop plans. Finally, the order instructed agencies to report on their progress in implementing their plans and meeting milestones as part of their annual reports for fiscal years 2006 and 2007, and required agencies to account for any milestones missed.

In April 2006, the Department of Justice posted guidance on implementation of the order’s requirements for FOIA reviews and improvement plans. This guidance suggested a number of areas of FOIA administration that agencies might consider in conducting their reviews and developing improvement plans. (Examples of some of these areas are automated tracking capabilities, automated processing, receiving/responding to requests electronically, forms of communication with requesters, and systems for handling referrals to other agencies.) To encourage consistency, the guidance also included a template for agencies to use to structure the plans and to report on their reviews and plans. The improvement plans are posted on the Justice Web site at www.usdoj.gov/oip/agency_improvement.html.

In a July 2006 testimony, we provided preliminary results of our analyses of the improvement plans for the 25 agencies in our review that were submitted as of the end of June; in our testimony we focused on how the plans addressed reducing or eliminating backlog. We testified that a substantial number of plans did not include measurable goals and timetables that would allow agencies to measure and evaluate the success of their plans. Several of the plans were revised in light of our testimony, as well as in response to feedback to agencies from the Department of Justice in its FOIA oversight role.

Status of FOIA Processing Appears Similar to Previous Years, but Limitations in Annual Report Data Present Challenges

The data reported by 24 major agencies in annual FOIA reports from 2002 to 2005 reveal a number of general trends. (Data from USDA, which were reported in our July 2006 testimony, are omitted in what follows, because we determined that data from a major USDA component were not reliable.) For example, the public continued to submit more requests for information from the federal government through FOIA, but many agencies, despite increasing the numbers of requests processed, did not keep pace with this increased volume. As a result, the number of pending requests carried over from year to year has been steadily increasing. However, our ability to make generalizations about processing time is limited by the type of statistic reported (that is, the median). Taking steps to improve the accuracy and form of annual report data could provide more insight into FOIA processing.

Not All Data from USDA’s Farm Service Agency Are Reliable, but Its Improvement Plan Provides Opportunity to Address This Weakness

We omitted data from USDA’s annual FOIA report because we determined that not all these data were reliable. Although some USDA components expressed confidence in their data, one component, the Farm Service Agency, did not. According to this agency’s FOIA Officer, portions of the agency’s data in annual reports were not accurate or complete. This is a significant deficiency, because the Farm Service Agency reportedly processes over 80 percent of the department’s total FOIA requests. Currently, FOIA processing for the Farm Service Agency is highly decentralized, taking place in staff offices in Washington, D.C., and Kansas City, 50 state offices, and about 2,350 county offices. The agency FOIA officer told us that she questioned the completeness and accuracy of data supplied by the county offices. This official stated that some of the field office data supplied for the annual report were clearly wrong, leading her to question the systems used to record workload data at field offices and the field office staff’s understanding of FOIA requirements. She attributed this condition to the agency’s decentralized organization and to lack of management attention, resources, and training. Lacking accurate data hinders the Farm Service Agency from effectively monitoring and managing its FOIA program.

The Executive Order’s requirement to develop an improvement plan provides an opportunity for the Farm Service Agency to address its data reliability problems. More specifically, Justice’s guidance on implementing the Executive Order refers to the need for agencies to explore improvements in their monitoring and tracking systems and staff training. USDA has developed an improvement plan that includes activities to improve FOIA processing at the Farm Service Agency that are relevant to the issues raised by the Farm Service Agency’s FOIA Officer, including both automation and training. The plan sets goals for ensuring that all agency employees who process or retrieve responsive records are trained in the necessary FOIA duties, as well as for determining the type of automated tracking to be implemented. According to the plan, an electronic tracking system is needed to track requests, handle public inquiries regarding request status, and prepare a more accurate annual FOIA report. In addition, the Farm Service Agency plans to determine the benefit of increased centralization of FOIA request processing.

However, the plan does not directly address improvements to data reliability. If USDA does not also plan for activities, measures, and milestones to improve data reliability, it increases the risk that the Farm Service Agency will not produce reliable FOIA statistics, which are important for program oversight and meeting the act’s goal of providing visibility into government FOIA operations.

Except for SSA, Increases in Requests Received and Processed Are Generally Slowing

The numbers of FOIA requests received and processed continue to rise, but except for one case—SSA—the rate of increase has flattened in recent years. For SSA, we present statistics separately because the agency reported an additional 16 million requests in 2005, dwarfing those for all other agencies combined, which together total about 2.6 million. SSA attributed this rise to an improvement in its method of counting requests and stated that in previous years, these requests were undercounted. Further, all but about 38,000 of SSA’s over 17 million requests are simple requests for personal information by or on behalf of individuals.

Figure 2 shows total requests reported governmentwide for fiscal years 2002 through 2005, with SSA’s share shown separately. This figure shows the magnitude of SSA’s contribution to the whole FOIA picture, as well as the scale of the jump from 2004 to 2005.

Figure 3 presents statistics omitting SSA on a scale that allows a clearer view of the rate of increase in FOIA requests received and processed in the rest of the government. As this figure shows, when SSA’s numbers are excluded, the rate of increase is modest and has been flattening: For the whole period (fiscal years 2002 to 2005), requests received increased by about 29 percent, and requests processed increased by about 27 percent. Most of this rise occurred from fiscal years 2002 to 2003: about 28 percent for requests received, and about 27 percent for requests processed. In contrast, from fiscal year 2004 to 2005, the rise was much less: about 3 percent for requests received, and about 2 percent for requests processed.

According to SSA, the increases that the agency reported in fiscal year 2005 can be attributed to an improvement in its method of counting a category of requests it calls “simple requests handled by non-FOIA staff.” From fiscal year 2002 to 2005, SSA’s FOIA reports have consistently shown significant growth in this category, which has accounted for the major portion of all SSA requests reported (see table 3). In each of these years, SSA has attributed the increases in this category largely to better reporting, as well as actual increases in requests.

SSA describes requests in this category as typically being requests by individuals for access to their own records, as well as requests in which individuals consent for SSA to supply information about themselves to third parties (such as insurance and mortgage companies) so that they can receive housing assistance, mortgages, disability insurance, and so on. According to SSA’s FOIA report, these requests are handled by personnel in about 1,500 locations in SSA, including field and district offices and teleservice centers. Such requests are almost always granted, according to SSA, and most receive immediate responses. SSA has stated that it does not keep processing statistics (such as median days to process) on these requests, which it reports separately from other FOIA requests (for which processing statistics are kept). However, officials say that these are typically processed in a day or less.

According to SSA officials, they included information on these requests in their annual reports because Justice guidance instructs agencies to treat Privacy Act requests (requests for records concerning oneself) as FOIA requests and report them in their annual reports. In addition, SSA officials said that their automated systems make it straightforward to capture and report on these simple requests. According to SSA, in fiscal year 2005, the agency began to use automated systems to capture the numbers of requests processed by non-FOIA staff, generating statistics automatically as requests were processed; the result, according to SSA, is a much more accurate count.

Besides SSA, agencies reporting large numbers of requests received were the Departments of Defense, Health and Human Services, Homeland Security, Justice, the Treasury, and Veterans Affairs, as shown in table 4. The rest of the agencies combined account for only about 5 percent of the total requests received (if SSA’s simple requests handled by non-FOIA staff are excluded). Table 4 presents, in descending order of request totals, the numbers of requests received and percentages of the total (calculated with and without SSA’s statistics on simple requests handled by non-FOIA staff).

Most Requests Are Granted in Full

Most FOIA requests in 2005 were granted in full, with relatively few being partially granted, denied, or not disclosed for other reasons (statistics are shown in table 5). This generalization holds with or without SSA’s inclusion. The percentage of requests granted in full was about 87 percent, which is about the same as in previous years. However, if SSA’s numbers are included, the proportion of grants dominates the other categories—raising this number from 87 percent of the total to 98 percent. This is to be expected, since SSA reports that it grants the great majority of its simple requests handled by non-FOIA staff, which make up the bulk of SSA’s statistics.

Three of the seven agencies that handled the largest numbers of requests (HHS, SSA, and VA; see table 4) also granted the largest percentages of requests in full, as shown in figure 4. Figure 4 shows, by agency, the disposition of requests processed: that is, whether granted in full, partially granted, denied, or “not disclosed for other reasons” (see table 1 for a list of these reasons).

As the figure shows, the numbers of fully granted requests varied widely among agencies in fiscal year 2005. Six agencies made full grants of requested records in over 80 percent of the cases they processed (besides the three already mentioned, these include Energy, OPM, and SBA). In contrast, 13 of 24 made full grants of requested records in less than 40 percent of their cases, including 3 agencies (CIA, NSF, and State) that made full grants in less than 20 percent of cases processed.

This variance among agencies in the disposition of requests has been evident in prior years as well. In many cases, the variance can be accounted for by the types of requests that different agencies process. For example, as discussed earlier, SSA grants a very high proportion of requests because they are requests for personal information about individuals that are routinely made available to or for the individuals concerned. Similarly, VA routinely makes medical records available to individual veterans, and HHS also handles large numbers of Privacy Act requests. Such requests are generally granted in full. Other agencies, on the other hand, receive numerous requests whose responses must routinely be redacted. For example, NSF reported in its annual report that most of its requests (an estimated 90 percent) are for copies of funded grant proposals. The responsive documents are routinely redacted to remove personal information on individual principal investigators (such as salaries, home addresses, and so on), which results in high numbers of “partial grants” compared to “full grants.”

Processing Times Vary, but Broad Generalizations Are Limited

For 2005, the reported time required to process requests (by track) varied considerably among agencies. Table 6 presents data on median processing times for fiscal year 2005. For agencies that reported processing times by component rather than for the agency as a whole, the table indicates the range of median times reported by the agency’s components.

As the table shows, seven agencies had components that reported processing simple requests in less than 10 days (these components are parts of the CIA, Energy, the Interior, Justice, Labor, Transportation, and the Treasury); for each of these agencies, the lower value of the reported ranges is less than 10. On the other hand, median time to process simple requests is relatively long at some organizations (for example, components of Energy and Justice, as shown by median ranges whose upper end values are greater than 100 days).

For complex requests, the picture is similarly mixed. Components of four agencies (EPA, DHS, the Treasury, and VA) reported processing complex requests quickly—with a median of less than 10 days. In contrast, other components of several agencies (DHS, Energy, EPA, HHS, HUD, Justice, State, Transportation, and the Treasury) reported relatively long median times to process complex requests, with median days greater than 100.

Six agencies (AID, HHS, NSF, OPM, SBA, and SSA) reported using single- track processing. The median processing times for single-track processing varied from 5 days (at an HHS component) to 173 days (at another HHS component).

The changes from fiscal year 2004 to 2005 also vary. For agencies that reported agencywide figures, table 7 shows how many showed increased or decreased median processing times. Table 8 shows these numbers for the components that were reported separately.

In general, these tables show that no trend emerges across tracks and types of reporting, and the numbers of agencies and components involved vary from track to track. The picture that emerges is of great variation in processing times according to circumstances.

To allow more insight into the variations in median processing times, we provide in appendix X tables of median processing times as reported by agencies and components in the annual FOIA reports in fiscal years 2004 and 2005. This attachment also includes information on the number of requests reported by the agencies and components, which provides context for assessing the median times reported.

Our ability to make further generalizations about FOIA processing times is limited by the fact that, as required by the act, agencies report median processing times only and not, for example, arithmetic means (the usual meaning of “average” in everyday language). To find an arithmetic mean, one adds all the members of a list of numbers and divides the result by the number of items in the list. To find the median, one arranges all the values in the list from lowest to highest and finds the middle one (or the average of the middle two if there is no one middle number). Thus, although using medians provides representative numbers that are not skewed by a few outliers, they cannot be summed. Deriving a median for two sets of numbers, for example, requires knowing all numbers in both sets. Only the source data for the medians can be used to derive a new median, not the medians themselves.

As a result, with only medians it is not statistically possible to combine results from different agencies to develop broader generalizations, such as a governmentwide statistic based on all agency reports, statistics from sets of comparable agencies, or an agencywide statistic based on separate reports from all components of the agency.

In rewriting the FOIA reporting requirements in 1996, legislators declared an interest in making them “more useful to the public and to the Congress, and the information in them more accessible.” However, the limitation on aggregating data imposed by the use of medians alone impedes the development of broader pictures of FOIA operations. A more complete picture would be given by the inclusion of other statistics based on the same data that are used to derive medians, such as means and ranges. Providing means along with the median would allow more generalizations to be drawn, and providing ranges would complete the picture by adding information on the outliers in agency statistics. More complete information would be useful for public accountability and for effectively managing agency FOIA programs, as well as for meeting the act’s goal of providing visibility into government FOIA operations.

Agency Pending Cases Continue to Increase

In addition to the governmentwide increase in number of requests processed, many agencies (10 of 24) also reported that their numbers of pending cases—requests carried over from one year to the next—have increased since 2002. In 2002, pending requests governmentwide were reported to number about 138,000, whereas in 2005, about 200,000—45 percent more—were reported. (In addition, the rate of increase grew in fiscal year 2005, rising 24 percent from fiscal year 2004, compared to 13 percent from 2003 to 2004.) Figure 5 shows these results, illustrating the accelerating rate at which pending cases have been increasing.

These statistics include pending cases reported by SSA, because SSA’s pending cases do not include simple requests handled by non-FOIA staff (for which SSA does not track pending cases). As the figure shows, these pending cases do not change the governmentwide picture significantly.

Trends for individual agencies show mixed progress in reducing the number of pending requests reported from 2002 to 2005—some agencies have decreased numbers of pending cases, while others’ numbers have increased. Figure 6 shows processing rates at the 24 agencies (that is, the number of requests that an agency processes relative to the number it receives). Eight of the 24 agencies (AID, DHS, the Interior, Education, HHS, HUD, NSF, and OPM) reported processing fewer requests than they received each year for fiscal years 2003, 2004, and 2005; 8 additional agencies processed less than they received in 2 of these 3 years (Defense, Justice, Transportation, GSA, NASA, NRC, SSA, and VA).

In contrast, two agencies (CIA and Energy) had processing rates above 100 percent in all 3 years, meaning that each made continued progress in reducing their numbers of pending cases. Fourteen additional agencies were able to make at least a small reduction in their numbers of pending requests in 1 or more years between fiscal years 2003 and 2005.

No Regular Mechanism Is in Place for Aggregating Annual Report Data

Legislators noted in 1996 that the FOIA reporting requirements were rewritten “to make them more useful to the public and to the Congress, and to make the information in them more accessible.” The Congress also gave the Department of Justice the responsibility to provide policy guidance and oversee agencies’ compliance with FOIA.

In its oversight and guidance role, Justice’s Office of Information and Privacy (OIP) created summaries of the annual FOIA reports and made these available through its FOIA Post Web page (www.usdoj.gov/oip/foiapost/mainpage.htm). In 2003, Justice described its summary as “a major guidance tool.” It pointed out that although it was not required to do so under the law, the office had initiated the practice of compiling aggregate summaries of all agencies’ annual FOIA report data as soon as these were filed by all agencies. These summaries did not contain aggregated statistical tables, but they did provide prose descriptions that included statistics on major governmentwide results. However, the most recent of these summaries is for fiscal year 2003. According to the Acting Director of OIP, she did not know why such summaries had not been made available since then. According to this official, internally the agency found the summaries useful and was considering making them available again. She also stated that these summaries gave a good overall picture of governmentwide processing.

Aggregating and summarizing the information in the annual reports serves to maximize their usefulness and accessibility, in accordance with congressional intent, as well as potentially providing Justice with insight into FOIA implementation governmentwide and valuable benchmarks for use in overseeing the FOIA program. Such information would also be valuable for others interested in gauging governmentwide performance. The absence of such summaries reduces the ability of the public and the Congress to consistently obtain a governmentwide picture of FOIA processing.

Agency Improvement Plans Generally Included Areas of Improvement Emphasized by the Executive Order

As required by the Executive Order, all the 25 agencies submitted improvement plans based on the results of reviews of their respective FOIA operations, as well as on the areas emphasized by the order. The plans generally addressed these four areas, with 20 of 25 plans addressing all four. In particular, for all but 2 agencies with reported backlog, plans included both measurable goals and timetables for backlog reduction. Further, to increase reliance on dissemination, improve communications on the status of requests, and increase public awareness of FOIA processing, agencies generally set milestones to accomplish activities promoting these aims. In some cases, agencies did not set goals for a given area because they determined that they were already strong in that area.

All Agencies Addressed Reducing Backlog, and Most Set Measurable Goals and Milestones

The Executive Order states that improvement plans shall include “specific activities that the agency will implement to eliminate or reduce the agency’s FOIA backlog, including (as applicable) changes that will make the processing of FOIA requests more streamlined and effective.” It further states that plans were to include “concrete milestones, with specific timetables and outcomes to be achieved,” to allow the plan’s success to be measured and evaluated. In addition, the Justice guidance suggested a number of process improvement areas for agencies to consider, such as receiving or responding to requests electronically, automated FOIA processing, automated tracking capabilities, and multitrack processing. It also gave agencies considerable leeway in choosing “means of measurement of success” for improving timeliness and thus reducing backlog.

All agency plans discussed avoiding or reducing backlog, and most (22 out of 25) established measurable goals and timetables for this area of focus. One agency, SBA, reported that it had no backlog, so it set no goals. A second agency, NSF, set no specific numerical goals for backlog reduction, but it had minimal backlog (in fiscal year 2005, NSF reported 273 requests received and 17 pending at the end of the reporting period), and its median processing time in fiscal year 2005 was 14.26 days. Its plan includes activities to increase efficiency (such as improving its ability to process requests electronically and investigating the acquisition of an improved automated tracking system) and to monitor and analyze backlogged requests to determine whether systemic changes are warranted in its processes. Given NSF’s minimal backlog and other improvement activities planned, the treatment of backlog reduction in its plan seems reasonable. A third agency, HUD, set a measurable goal for reducing backlog, but did not include a date by which it planned to achieve it. However, it achieved this goal, according to agency officials, by November 2006.

The goals chosen by the 22 remaining agencies varied considerably (which is consistent with the flexibility in choosing measures that Justice provided in its implementation guidance). Some agencies linked backlog reduction to various different measures. For example, EPA’s goal was to reduce its response backlog to less than 10 percent of the number of new FOIA requests received each year. Energy set a goal of achieving a 50 percent reduction by June 2007 in the number of pending FOIA cases that were over 1 year old. NRC chose to focus on improving processing times, setting percentage goals for completion of different types of requests (for example, completing 75 percent of simple requests within 20 days). Labor’s plan sets goals that aim for larger percentages of reduction for the oldest categories of pending requests (75 percent reduction for the oldest, 50 percent reduction for the next oldest, and so on). A number of agencies included goals to close their oldest 5 to 10 requests (Justice, the Treasury, Education, Commerce, Defense, GSA, NASA, SSA, and VA). According to the Attorney General’s report to the President, in concentrating on their oldest requests, many agencies followed Justice’s lead.

OPM and DHS plan to eliminate their backlogs, Transportation is planning to substantially reduce previous fiscal year backlogs, and several agencies chose goals based on a percentage of reduction of existing backlog (for example, CIA, Commerce, Education, Defense, the Interior, Justice, SSA, the Treasury, and USDA). Some agencies also described plans to perform analyses that would measure their backlogs so that they could then establish the necessary baselines against which to measure progress. For example, Labor’s plan includes activities to monitor and determine the department’s oldest pending requests. The plan states that Labor will use as its baseline the number of requests that it identifies as pending for various lengths of time as of December 31, 2006. Similarly, Defense’s plan included activities to establish backlog levels and use these as the basis for its objective of reducing backlog by 10 percent annually.

In addition to setting backlog targets, agencies also describe activities that contribute to reducing backlog. For example, the Treasury plan, which states that backlog reduction is the main challenge facing the department and the focus of its plan, includes such activities (with associated milestones) as reengineering its multitrack FOIA process, monitoring monthly reports, and establishing a FOIA council.

The agency plans thus provide a variety of activities and measures of improvement that should permit agency heads, the Congress, and the public to assess the agencies’ success in implementing their plans to reduce backlog.

Most Agencies Plan to Increase Public Dissemination of Records through Web Sites

The Executive Order calls for “increased reliance on the dissemination of records that can be made available to the public” without the necessity of a FOIA request, such as through posting on Web sites. In its guidance, Justice notes that agencies are required by FOIA to post frequently requested records, policy statements, staff manuals and instructions to staff, and final agency opinions. It encourages agencies not only to review their activities to meet this requirement, but also to make other public information available that might reduce the need to make FOIA requests. It also suggests that agencies consider improving FOIA Web sites to ensure that they are user friendly and up to date.

Agency plans generally established goals and timetables for increasing reliance on public dissemination of records, including through Web sites. Of 25 agencies, 24 included plans to revise agency Web sites and add information to them, and 12 of these are making additional efforts to ensure that frequently requested documents are posted on their Web sites. For example, Defense is planning to increase the number of its components that have Web sites as well as posting frequently requested documents. Interior is planning to facilitate the posting of frequently requested documents by using scanning and redaction equipment to make electronic versions readily available.

Agencies planned other related activities, such as making posted documents easier to find, improving navigation, and adding other helpful information. For example, besides reviewing its Web site to verify and add links, AID plans to establish an “information/searching decision tree” to assist Web site visitors by directing them to agency public affairs staff who may be able to locate information and avoid the need for visitors to file FOIA requests. Besides adding frequently requested documents, CIA plans to improve navigation and review its site quarterly. HUD plans activities to anticipate topics that may produce numerous FOIA requests (“hot button” issues) and post relevant documents. Education is planning to use its automated tracking technology to determine when it is receiving multiple requests for similar information and then post such information on its Web site. Based on its FOIA review, NRC determined that it would be helpful to requesters for the agency to provide examples of the types of information in NRC documents that might be covered by FOIA exemptions, and it established goals to achieve this.

The Treasury plan does not address increasing public dissemination of records. Treasury’s plan, as mentioned earlier, is focused on backlog reduction. It does not mention the other areas emphasized in the Executive Order, list them among the areas it selected for review, or explain the decision to omit them from the review and plan. Treasury officials told us that they concentrated in their plan on areas where they determined the department had a deficiency: namely, a backlog consisting of numerous requests, some of which were very old (dating as far back as 1991). By comparison, they did not consider they had deficiencies in the other areas. With regard to increasing dissemination, they noted that their Web sites currently provide frequently requested records. However, without a careful review of the department’s current dissemination practices or a plan to take actions to increase dissemination, Treasury does not have assurance that it has identified and exploited available opportunities to increase dissemination of records in such a way as to reduce the need for the public to make FOIA requests, as stressed by the Executive Order.

Most Agency Plans Included Improving Status Communications with FOIA Requesters

The Executive Order sets as policy that agencies shall provide FOIA requesters ways to learn about the status of their FOIA requests and states that agency improvement plans shall ensure that FOIA administration is in accordance with this policy. In its implementation guidance, Justice reiterated the order’s emphasis on providing status information to requesters and discussed the need for agencies to examine, among other things, their capabilities for tracking status and the forms of communication used with requesters.

Most agencies (22 of 25) established goals and timetables for improving communications with FOIA requesters about the status of their requests. Goals set by these agencies included planned changes to communications, including sending acknowledgement letters, standardizing letters to requesters, including information on elements of a proper FOIA request in response letters, and posting contact information on Web pages. Both NASA and Interior planned to establish toll free numbers for requesters to obtain status information. NASA also included plans to acquire software that would allow a requester to access and track status of his or her request. Interior planned to develop and post frequently asked questions to provide requesters with information about where to submit their requests, processing times, fees charged, and how to check on the status of their requests. HUD’s plan included posting information on its Web site, providing training on customer service, and gauging progress through public forums at which it can receive comments on improving FOIA performance.

Three agencies did not include improvement goals because they considered them unnecessary. In two cases (Defense and EPA), agencies considered that status communications were already an area of strength.

Defense considered that it was strong in both customer responsiveness and communications. Defense performed extensive surveys of the opinions and practices of its FOIA staff and Public Liaisons and concluded that “FOIA personnel routinely contact requesters to try to resolve problems and to better define requests.” Defense’s Web site provides instructions for requesters on how to get information about the status of requests, as well as information on Requester Service Centers and Public Liaisons. Defense officials also told us that this information is included in acknowledgement letters to requesters. In addition, these officials stated that planned revisions to Defense FOIA Web sites would promote improving status communications, and that the department is working to implement an Interactive Customer Collection tool that would enable requesters to provide feedback.

Similarly, EPA officials told us that they considered the agency’s activities to communicate with requesters on the status of their requests to be already effective, noting that many of the improvements planned by other agencies were already in effect at EPA. For example, EPA sends out an acknowledgment letter within a day of the request that includes a tracking number, the department that will be involved, and a contact name and telephone number. Officials also stated that EPA holds regular FOIA requester forums, the last held on November 1, 2006, and that EPA’s requester community had expressed satisfaction with EPA’s responsiveness. EPA’s response to the Executive Order describes its efforts to communicate with requesters, including activities of staff at its FOIA Service Center and a FOIA hotline through which callers may receive information on the status of their requests. It also describes the enterprise FOIA management system, deployed in 2005, that provides “cradle to grave” tracking of incoming requests and responses.

The third agency, Treasury, did not address improving status communications, as its plan is entirely focused on backlog reduction. As required by the Executive Order, Treasury did set up Requester Service Centers and Public Liaisons, which are among the mechanisms envisioned to improve status communications. However, because Treasury omitted status communications from the areas of improvement that it selected for review, it is not clear that this area received attention commensurate with the emphasis it was given in the Executive Order. Without such attention to communication with requesters, Treasury increases the risk that its FOIA operations will not be as responsive and citizen centered as the Executive Order envisioned.

Agencies Generally Plan to Rely on FOIA Reference Guides to Increase Public Awareness of FOIA Processing

The Executive Order states that improvement plans shall include activities to increase public awareness of FOIA processing, including (as appropriate) expanded use of Requester Service Centers and FOIA Public Liaisons, which agencies were required to establish by the order. In Justice’s guidance, it linked this requirement to the FOIA Reference Guide that agencies are required to maintain as an aid to potential FOIA requesters, because such guides can be an effective means for increasing public awareness. Accordingly, the Justice guidance advised agencies to double-check these guides to ensure that they remain comprehensive and up to date.

Most agencies (23 of 25) defined goals and timetables for increasing public awareness of FOIA processing, generally including ensuring that FOIA reference guides were up to date. In addition, all 25 agencies established Requester Service Centers and Public Liaisons as required by the Executive Order. Besides these activities, certain agencies planned other types of outreach: for example, the Department of State reported taking steps to obtain feedback from the public on how to improve FOIA processes; GSA plans to post information about what GSA can and cannot release; the Department of the Interior plans to initiate feedback surveys on requesters’ FOIA experience; and the Department of Labor is planning to hold public forums and solicit suggestions from the requester community. Defense did not set specific goals and milestones in this area; according to Defense, it did not do so because its FOIA handbook had already been updated in the fall of 2005. The department also established Requester Service Centers and Public Liaisons, as required. Department officials told us that in meeting their goals and milestones for revising FOIA Web sites, they expect to improve awareness of Defense’s FOIA process, as well as public access and other objectives.

As mentioned earlier, Treasury did not address this area in its review or plan. However, Treasury has established Requester Service Centers and FOIA Public Liaisons, as required. Treasury’s Director of Disclosure Services also told us that Treasury provides on its Web site a FOIA handbook, a Privacy Act handbook, and a citizen’s guide for requesters. In addition, this official told us that Treasury had updated its FOIA handbook in 2005 and conducted staff training based on the update. However, at the time of our review, the FOIA handbook on the Web site was a version dated January 2000. When we pointed out that this earlier version was posted, the official indicated that he would arrange for the most recent version to be posted.

Because Treasury did not review its efforts to increase public awareness, it missed an opportunity to discover that the handbook on the Web site was outdated and thus might not provide assurance to the public that the information provided was fully up to date, reducing its effectiveness as a communication tool. Without further attention to increasing public awareness, Treasury lacks assurance that it has taken all appropriate steps to ensure that the public has the means of understanding the agency’s FOIA processing.

Conclusions

The annual FOIA reports continue to provide valuable information about citizens’ use of this important tool to obtain information about the operation and decisions of the federal government. The value of this information clearly depends, however, on its accuracy. In the case of the USDA’s Farm Service Agency, which is not assured of the accuracy of its data, the department’s FOIA improvement plan is an opportunity to address data reliability along with other processing improvements. In addition, one value of the annual reports lies in the possibility they provide of seeing trends and drawing generalizations. However, our ability to generalize about processing times, whether from agency to agency or year to year, is limited because only median times are reported. Since processing times are an important gauge of government responsiveness to citizen inquiries, this limitation is significant. Medians are useful as representative numbers that are not skewed by a few outliers, but the addition of averages (arithmetic means) and ranges would enhance the ability to make useful comparisons and provide a more complete picture. Finally, in the absence of aggregated statistics and summaries, as formerly provided by the Justice Department, it is difficult to obtain a governmentwide picture of FOIA processing. Providing such statistics and summaries could increase the value of the annual reporting process for assessing the performance of the FOIA program as a whole.

The Executive Order provided a useful impetus for agencies to review their FOIA operations and ensure that they are appropriately responsive to the public generally and requesters specifically. The 25 agencies submitted FOIA improvement plans that generally responded to elements emphasized by the Executive Order and form a reasonable basis for carrying out the order’s goals. In general, all the plans show a commendable focus on making measurable improvements. One agency (Treasury) submitted a plan that could be improved by closer adherence to the other elements, besides backlog, specified by the Executive Order.

Implementing the improvement plans and reporting on their progress should serve to keep management attention on FOIA and its role in keeping citizens well informed about the operations of their government. However, to realize the goals of the Executive Order, it will be important for Justice and the agencies to continue to refine the improvement plans and monitor progress in their implementation.

Matters for Congressional Consideration

To improve the usefulness of the statistics in agency annual FOIA reports, the Congress should consider amending the act to require agencies to report additional statistics on processing time, which at a minimum should include average times and ranges.

Recommendations for Executive Action

To provide a clearer picture of FOIA processing both in a given year and over time, we recommend that the Attorney General direct Justice’s Office of Information and Privacy to use data from annual reports to develop summaries and aggregate statistics (as appropriate) for categories of agencies (such as major departments), as well as governmentwide.

To ensure that USDA data in FOIA annual reports are accurate and complete, we recommend that the Secretary of Agriculture direct the Chief FOIA Officer for the department to revise the department’s FOIA improvement plan to include activities, goals, and milestones to improve data reliability for the Farm Service Agency and to monitor results.

To ensure that its plan includes an appropriate focus on communicating with requesters and the public, we recommend that the Secretary of the Treasury direct the department’s Chief FOIA Officer to review its FOIA operations in the other areas emphasized in the Executive Order (increasing reliance on public dissemination of records, improving communications with FOIA requesters about the status of their requests, and increasing public awareness of FOIA processing) and, as appropriate, revise the improvement plan for fiscal year 2007 to include goals and milestones in these areas.

Agency Comments and Our Evaluation

We provided a draft of this report to OMB and the 25 agencies for review and comment. All but one agency (the Department of the Treasury) generally agreed with our assessment and recommendations or had no comment. Seven agencies provided written comments: the Departments of Agriculture, Justice, the Treasury, and Veterans Affairs, along with AID, EPA, and NSF (printed in apps. II through VIII). In addition, OMB, the Interior, Transportation, HUD, OPM, and SSA provided technical comments, which we incorporated as appropriate.

The Acting Director of Justice’s Office of Information and Policy concurred with our assessment and stated that Justice agrees with our recommendation and plans to implement it (see app. III). The Acting Director stated that the office plans to resume compiling summaries of the annual reports, beginning with those for fiscal year 2006.

The Chief FOIA Officer of Agriculture provided additional information on actions that the department has taken to improve FOIA processing, as well as actions that the Farm Service Agency is taking to ensure that its data are reliable (see app. II).

Except for Treasury, other agencies providing written comments generally provided additional information on their FOIA programs or provided suggestions on the draft.

EPA and NSF offered additional information about their FOIA operations.

Both VA and AID stated their view that ample time should be given to accommodate reporting changes.

VA also suggested including cases both received and processed in our discussion of the increase in pending requests. We augmented the section on pending requests to include a reference to statistics on cases received and processed.

In written and e-mail comments, the Acting Deputy Assistant Secretary for Headquarters Operations indicated that the department generally agreed with our premise that Treasury’s plan needs to more thoroughly integrate the Executive Order and noted that the plan is a living, dynamic document that will accommodate changing circumstances. (Treasury’s written comments are provided in app. IV.) The Acting Deputy Assistant Secretary stated that the department will be evaluating its improvement plan and taking action to improve its FOIA administration. However, Treasury also partially disagreed with our assessment, and it disagreed with our recommendation.

According to Treasury, our assessment and recommendation minimize the importance of reducing backlog in the Executive Order and Justice guidance and do not give sufficient weight to other aspects of its improvement plan, such as the establishment of a FOIA council to improve FOIA administration, the establishment of FOIA Requester Service Centers and Public Liaisons, and its compliance with the e-FOIA amendments’ requirement that frequently posted records be posted on agency Web sites. Further, Treasury considered that our assessment does not sufficiently recognize the activities and programs that the department already had in place (beyond backlog reduction) before the order was issued, which were not included in its plan (such as technology improvements to upgrade the department’s FOIA tracking system in 2005 and to upgrade IRS databases).

We do not believe that we minimize the importance of reducing backlog; our report indicates that this is a major focus of the Executive Order. However, it was not the only focus of the Executive Order, which also emphasized a citizen-centered approach to FOIA implementation. The three areas of emphasis that we suggest would benefit from further attention are all related to a citizen-centered approach in that they focus on communication with the public and especially with requesters. It may be that Treasury’s FOIA council will provide this focus; however, this was not clear from the agency’s plan, which included no milestones or goals in these areas to guide the council’s future activities.

We also disagree with Treasury’s view that we do not give sufficient weight to the activities that the plan included or that Treasury officials indicated were already in progress. Although we took these into account, they did not provide evidence that Treasury was already giving or planned to give the level of attention to the three areas of emphasis that was envisioned by the Executive Order. For example, although Treasury’s compliance with the 1996 e-FOIA amendments is important, the Executive Order asks agencies to look for opportunities to go beyond complying with legal requirements to disseminate records. Similarly, although the technology improvements that Treasury described have the potential to improve FOIA processing (including improvements in the three areas of emphasis), the plan did not tie these improvements and actions to goals or milestones in the three areas. As a result, we did not change our assessment. However, we have clarified the language of the report to emphasize that our assessment is based on meeting the level of attention emphasized in the Executive Order.

We note, however, that Treasury in its comments indicates that it does plan to continue to reevaluate its improvement plan and modify it to accommodate changing circumstances. If future modifications specifically address external communications, particularly with requesters, the goal of our recommendation may be achieved.

We are sending copies of this report to the Attorney General, the Director of the Office of Management and Budget, and the heads of departments and agencies we reviewed. Copies will be made available to others on request. In addition, this report will be available at no charge on the GAO Web site at www.gao.gov.

If you should have questions about this report, please contact me at (202) 512-6240 or via e-mail at koontzl@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. GAO staff who made major contributions to this report are listed in appendix XI.

Scope and Methodology

To gauge agencies’ progress in processing requests, we analyzed the workload data (from fiscal year 2002 through 2005) included in the 25 agencies’ annual FOIA reports to assess trends in volume of requests received and processed, median processing times, and the number of pending cases. All agency workload data were self-reported in annual reports submitted to the Attorney General.

To assess the reliability of the information contained in agency annual reports, we interviewed officials from selected agencies and assessed quality control processes agencies had in place. We selected 10 agencies to assess data reliability: the Departments of Agriculture (USDA), Defense, Education, the Interior, Labor, and Veterans Affairs, as well as the National Aeronautics and Space Administration, National Science Foundation, Small Business Administration, and Social Security Administration. We chose the Social Security Administration and Veterans Affairs because they processed a majority of the requests. To ensure that we selected agencies of varying size, we chose the remaining 8 agencies by ordering them according to the number of requests they received, from smallest to largest, and choosing every third agency. These 10 agencies account for 97 percent of the received requests that were reported in the 25 agencies’ annual reports.

Of the 10 agencies that were assessed for data reliability, we determined that the data for USDA’s Farm Service Agency were not reliable; these data account for over 80 percent of the reported USDA data. We therefore eliminated USDA’s data from our analysis. Because of this elimination, our analysis was of 24 major agencies (herein we refer to this scope as governmentwide). Table 9 shows the 25 agencies and their reliability assessment status.

To determine to what extent the agency improvement plans contain the elements emphasized by the order, we first analyzed the Executive Order to determine how it described the contents of the improvement plans. We determined that the order emphasized the following areas to be addressed by the plans: (1) reducing the backlog of FOIA requests, (2) increasing reliance on public dissemination of records (affirmative and proactive) including through Web sites, (3) improving communications with FOIA requesters about the status of their requests, and (4) increasing public awareness of FOIA processing including updating an agency’s FOIA Reference Guide. We also analyzed the improvement plans to determine if they contained specific outcome-oriented goals and timetables for each of the criteria. We then analyzed the 25 agencies’ (including USDA) plans to determine whether they contained goals and timetables for each of these four elements. We evaluated the versions of agency plans available as of December 15, 2006.

We also reviewed the Executive Order itself, implementing guidance issued by OMB and the Department of Justice, other FOIA guidance issued by Justice, and our past work in this area.

We conducted our review in accordance with generally accepted government auditing standards. We performed our work from May 2006 to January 2007 in Washington, D.C.

Comments from the Department of Agriculture

Comments from the Department of Justice

Office of Information and Privacy Washington, D. C.

February 20, 2007

Linda D. Koontz Director Information Management Government Accountability Office 441 G Street, NW Washington, DC 20548 Thank you for the opportunity to review and comment on the Government Accountability Office's (GAO's) draft report entitled "Freedom ofInformation Act: Processing Trends Show Importance ofImprovement Plans" (GAO-07-441). The Department believes that GAO's draft report accurately depicts the status and trends ofFOIA processing at twenty-five major agencies as reflected in those agencies' annual reports and FOIA improvement plans required by Executive Order 13,392.

We would like to take this opportunity to address GAO's recommendation that the Department of Justice's Office of Information and Privacy (OIP) use the data collected in agencies' annual reports to develop summaries of governmentwide FOIA activities. As noted in GAO's draft report, in the past, although not required to do so under the law, OIP compiled summaries of the annual FOIA reports and made these available through Justice's FOIA Web page. The Department agrees with GAO that such summaries provide the public and the Congress a governmentwide picture ofFOIA processing. Accordingly, OIP will resume compiling the aforementioned summaries beginning with a summary of the fiscal year 2006 annual reports. These summaries will follow the same format and include the same type of information as provided in OIP's prior summaries.

Again, we appreciate the opportunity to comment on GAO's draft report, and we look forward to additional collaboration in our efforts to further improve FOIA processing governmentwide.

If you have any questions regarding our comments, please contact Richard P. Theis, Assistant Director, Audit Liaison Group on (202) 514-0469.

Comments from the Department of the Treasury

Comments from the Department of Veterans Affairs

Comments from the Agency for International Development

Comments from the Environmental Protection Agency

Comments from the National Science Foundation

Freedom of Information Act Exemptions

Matters that are exempt from FOIA (A) Specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive Order.

Related solely to the internal personnel rules and practices of an agency.

Specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.

Trade secrets and commercial or financial information obtained from a person and privileged or confidential.

Inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.

Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

Records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information could reasonably be expected to interfere with enforcement proceedings; would deprive a person of a right to a fair trial or impartial adjudication; could reasonably be expected to constitute an unwarranted invasion of personal privacy; could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by confidential source; would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law; or could reasonably be expected to endanger the life or physical safety of an individual.

Contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation of supervision of financial institutions.

Geological and geophysical information and data, including maps, concerning wells.

Median Processing Times Reported

The attached tables present median processing times as reported by agencies in their annual FOIA reports in fiscal years 2004 and 2005. To provide context, we include numbers of requests processed for each agency or component. We also indicate (in columns headed “±”) whether the median days to process rose (+), fell (–), or remained unchanged (=). (We also use “~” to indicate other types of changes, such as the establishment of a new component.)

Agencies report median processing times according to processing tracks: that is, some agencies divide requests into simple and complex categories and process these in separate tracks, whereas others use a single track. Accordingly, the tables show these tracks where applicable. In addition, agencies are required to subject some requests to expedited processing, and these are reported as a separate track.

Department of Health and Human Services Department of Housing and Urban Development National Aeronautics and Space Administration Social Security Administration (Continued From Previous Page)

Agency for International Development

No. + increase – decrease = no change ~ other change (change in reporting, new component, etc.)

Central Intelligence Agency

No.

No. + increase – decrease = no change ~ other change (change in reporting, new component, etc.)

Department of Homeland Security

No.

No. (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) + increase – decrease = no change ~ other change (change in reporting, new component, etc.)

Component did not exist.

Department of Commerce

No.

No. + increase – decrease = no change ~ other change (change in reporting, new component, etc.)

Department of Defense No. = number of requests processed; Days = median days to process; ± =

No.

No. + increase – decrease = no change ~ other change (change in reporting, new component, etc.)

Department of Energy

No.

No. (a) (a) (a) (a) (a)

No.

No. + increase – decrease = no change ~ other change (change in reporting, new component, etc.)

Component did not exist.

Department of the Interior

No.

No. (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) + increase – decrease = no change ~ other change (change in reporting, new component, etc.)

Statistics not broken down by component.

Department of Justice

No.

No. (b) (b)

No.

No. (c) (c) (a) (a) (a) (a) (a)

No.

No. + increase – decrease = no change ~ other change (change in reporting, new component, etc.)

Component did not exist.

In addition to the expedited track, the FBI maintains three tracks for reuests: small (0 to 500 pages), medium (501 to 2,500 pages), and large (more than 2,500 pages). The former is reported in the “simple reuests” category; the latter two are reported as “complex reuests.” Therefore FBI’s complex reuests were excluded from analysis.

Justice Management Division used average days opposed to median days, so it was excluded.

Department of Labor

No.

No.

No.

No. + increase – decrease = no change ~ other change (change in reporting, new component, etc.)

Department of Transportation

No.

No. + increase – decrease = no change ~ other change (change in reporting, new component, etc.)

Department of Education

No.

No. + increase – decrease = no change ~ other change (change in reporting, new component, etc.)

Environmental Protection Agency

No.

No.

No.

No. + increase – decrease = no change ~ other change (change in reporting, new component, etc.)

General Services Administration

No.

No. + increase – decrease = no change ~ other change (change in reporting, new component, etc.)

Department of Health and Human Services

Two tables are provided for this department, because its components report both multitrack (simple and complex) processing and single-track processing.

No.

No. (a) (a) (a) (a)

No.

No. (a) (a) (a) (a)

No.

No. + increase – decrease = no change ~ other change (change in reporting, new component, etc.)

Component did not exist.

Department of Housing and Urban Development

No.

No. + increase – decrease = no change ~ other change (change in reporting, new component, etc.)

National Aeronautics and Space Administration

No.

No. + increase – decrease = no change ~ other change (change in reporting, new component, etc.)

Nuclear Regulatory Commission

No.

No. + increase – decrease = no change ~ other change (change in reporting, new component, etc.)

National Science Foundation

No.

No. + increase – decrease = no change ~ other change (change in reporting, new component, etc.)

Office of Personnel Management

No.

No. + increase – decrease = no change ~ other change (change in reporting, new component, etc.)

Small Business Administration

No.

No. + increase – decrease = no change ~ other change (change in reporting, new component, etc.)

Social Security Administration

No.

No.

No.

No. + increase – decrease = no change ~ other change (change in reporting, new component, etc.)

Department of State

No.

No. + increase – decrease = no change ~ other change (change in reporting, new component, etc.)

Department of the Treasury

No.

No. + increase – decrease = no change ~ other change (change in reporting, new component, etc.)

Department of Veterans Affairs

The department reports all processing in one track, but it refers to this track as complex, rather than single track.

No.

No. (a) (a) (a)

No.

No. (a) (a) (a) (a) + increase – decrease = no change ~ other change (change in reporting, new component, etc.)

Component did not exist.

GAO Contact and Staff Acknowledgments

GAO Contact

Staff Acknowledgments

In addition to the contact named above, key contributions to this report were made by Barbara Collier, Acting Assistant Director; Alan Stapleton, Assistant Director; James Ashley, Marisol Cruz; Wilfred Holloway; Vernetta Marquis; David Plocher; Kelly Shaw; Shawn Ward; and Elizabeth Zhao.