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Shining a Light on FOIA Practices

In celebration of Sunshine Week, a number of organizations released Freedom of Information Act (FOIA) reviews. These reviews, conducted by National Security Archives, the Center for Effective Government, Cause of Action, Associated Press, and OpenTheGovernment.org, indicate how agencies measure up when it comes to providing the public with information.

Although the studies indicate that agencies on the whole increased their responses to FOIA requests in 2012, disparities remain between agencies on things like response time, compliance with the 2007 Open Government Act and 2009 Guidance from the White House, cost of responding, fee waivers, and backlog reductions. A majority of responses to FOIA requests in 2012 were only partial responses, and use of exemptions to withhold or redact information increased. The following snapshots contain some of the highlights of each review.

National Security Archives: Freedom of Information Regulations: Still Outdated, Still Undermining Openness

  • 53/100 Agencies not compliant with 2007 Open Government Act.
  • 59/100 Agencies not compliant with 2009 guidance from the Attorney General, which calls for a presumption of disclosure.
  • Use of discretionary b(5) exemptions were up 17.9 percent from 2011.
  • Department of the Interior and National Oceanic and Atmospheric Administration are proactively posting documents relating to Deepwater Horizon.
  • Three agencies (Interior, Federal Communications Commission, and Federal Housing Finance Agency) recently updated their FOIA regulations. Interior is the only agency to include the utilization of Office of Government Information Services (OGIS) mediation.

Center for Effective Government: Freedom of Information Act Performance, 2012: Agencies Are Processing More Requests but Redacting More Often

  • Reviewed 25 Agencies in 2012.
  • Agencies processed 39,000 more requests in 2012 than 2011, and the total number of requests only increased by 11,000.
  • There was an overall 12% decline in pending FOIA requests in 2012; Homeland Security (which receives the most requests) reduced its backlog by 30%.
  • Post-2009, agencies were ordered to reduce backlog by 10% annually; of the 11 most backlogged agencies only Interior and Department of the Treasury met the reduction goal each year. Both the Central Intelligence Agency and the National Archives and Records Administration failed all three years.
  • Partial releases grew in 2012: Just under 41% of FOIA requests processed provided full and complete information.
  • Use of exemptions to withhold or redact information are up 26% from 2011.
  • Costs of FOIAs are highly variable across agencies. The most expensive agencies were the Nuclear Regulatory Commission (NRC) and Department of Energy (DOE). The 10 agencies with the highest costs each processed fewer than 10,000 requests. Homeland security, which receives the most requests, had the lowest costs.

Cause of Action: Grading the Government: A Look at How Federal Agencies Measure Up on FOIA Requests

  • FOIA requests were sent to 16 Agencies in 2012. Cause of Action then graded each agency.
  • The average agency score was C-.
  • Department of Education was the only agency to earn an A.
  • Department of Commerce and Department of Defense each earned Fs.
  • 75% of the agencies took longer than 30 days to respond.

Associated Press: “AP FOIA Review: FOIA Requests Being Denied More Due to Security Reasons Than Any Time Since Obama Took Office”

  • Examined FOIA data for 33 agencies. Overall, FOIA requests were up 5% from 2011.
  • There was a 22% increase in use of exemptions. The national security exemption was used at 5,223 times in 2012, as compared to 4,243 in 2011.
  • Nearly 60% of 3,586 requests made to the CIA for files were withheld or censored. AP could not determine whether the government was abusing the national security exception or if the public requests for sensitive documents increased.
  • State Department, National Transportation Safety Board, and NRC performed worse in 2012 than in 2011.
  • Administrative appeals split about 50-50, with agencies winning just under half the time. The average length of an administrative appeal was 5 months.
  • On average, response time was longer than last year.
  • Expedited processing granted less often this year (17% of the time, down from 24% last year).
  • Fees were waived less often (59% this year, down from 64% in 2011).

OpenTheGovernment.org: Civil Society Report on Implementation of the First US National Action Plan

  • This report evaluated the government’s efforts towards achieving goals established in the First U.S. National Action Plan.
  • The government received a high score for collaborating with civil society organizations to create a new civil service personnel category (or job series) for officials who specialize in administering FOIA. Although the job series is a positive step forward, the government received low scores in its efforts to meet civil society recommendations to professionalize FOIA administration due to the limits of what this series can achieve.
  • In terms of harnessing the power of technology for FOIA, the government received mid-range scores. Although the evaluation noted that the government made progress in this area, the achievements were a “far cry” from a shared-service site envisioned by civil society groups.

These studies indicate that there is still room in agencies for improving FOIA processes. There is current legislation pending in Congress that calls for not only a comprehensive study of government-wide FOIA practices, but also a number of other positive reforms. Why shine light only one week a year when we can implement reforms to make sure the sun shines all year round?

By: Meryl Grenadier
Legal Intern, POGO

Meryl Grenadier At the time of publication, Meryl Grenadier was a legal intern with the Project On Government Oversight.

Topics: Open Government

Related Content: FOIA, Information Access, Open Government, Sunshine Week

Authors: Meryl Grenadier

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