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Federal Agencies Lagging on FOIA Processing—What’s the Hold Up?

When the Office of Information Policy (OIP) at the Justice Department released its Summary of Agency Chief FOIA Officer Reports for 2012 and subsequently published its Summary of Annual FOIA Reports for FY 2011 a couple weeks later, POGO reviewed both assessments closely. We applaud the nine federal agencies (out of the 99 subject to the Freedom of Information Act in FY 2011) that earned top marks on their FOIA program, meeting all seventeen milestones included in the Chief FOIA Officer Reports Summary. However, POGO was disappointed to see some particularly sluggish FOIA processing performances from others.

Here’s a little background: In 1996, Congress passed the e-FOIA amendments (H.R. 3802), strengthening requirements for agencies to ensure timely responses to requests. To avoid prolonged delays for simple requests, Sec. 7 authorized multi-track processing. This means agencies can (and should) process simple and complex requests at the same time on separate tracks based on the amount of work or time involved—instead of on a “first-in, first-out” basis.

The Chief FOIA Officer Reports Summary provided statistics on the average number of days it takes each agency to process a simple request—one that does not involve unusual or exceptional circumstances. OIP clarified for POGO that they are tracking when an agency has provided a substantive response to the requester, not just a response, such as an acknowledgement letter. So these stats represent how long it takes (simple) requesters to actually get the information they are seeking. Sixty agencies in the OIP assessment processed the requests within an average of 20 working days or less. But twenty-seven agencies had a simple track and still failed to meet that requirement. While many of those agencies’ averages hovered just above 20 days, a few were shockingly high.

The Chief FOIA Officer Reports Summary indicated that it takes the Department of State and U.S. Agency for International Development (USAID) on average seven times longer to process a simple FOIA request than the 20-day legal limit for simple requests.

It takes State, for example, an astounding average of 155 days to process a simple request. When POGO asked why, a State Department spokesperson told us:

Unlike many other agencies that operate only domestically, the Department of State maintains records both domestically and at hundreds of posts (embassies and consulates) located throughout the world. FOIA requests made to the Department vary in size from very narrow requests for a single document to requests that are voluminous in size and complex in scope, requiring the review of thousands of documents, frequently retrieved both domestically and at posts overseas. Many of the Department’s records contain sensitive national security information. The review of responsive records is undertaken by subject matter experts, often including coordination with multiple offices within the Department, as well as with other Federal agencies and foreign governments. In recent years, the Department also experienced an influx in new FOIA referrals, which tripled the number of cases received and added to the workload.

Traditionally, the Department of State has responded to FOIA requests incrementally, with interim responses made to requesters as segments are completed instead of at the conclusion of processing; this results in requesters’ receiving responses much faster than the total average processing time would indicate.

And when we reached out to a USAID official to inquire about why it takes them an average of 147.66 days to process a simple request, we got this response:

The United States Agency for International Development (USAID) is a global agency with missions in over 80 countries and therefore requires us to seek documents from around the world, not just from our Washington headquarters. In addition, the average number is high due to a small number of long outstanding requests. USAID continues to aggressively work on the backlog and to improve its response time and has made this a priority. USAID is very committed to the principles embodied in the FOIA and employs a strategy to improve overall FOIA administration. New targeted goals were established during FY2011 and new staff were added which led to a 51% reduction of the prior years’ backlog.

State and USAID say they have to gather records from “hundreds of posts throughout the world” and “missions in over 80 countries.” But the kinds of worldwide searches they describe are, by definition, not “simple” FOIA requests. We reached out to Director of OIP Melanie Pustay for more clarification, and she affirmed our understanding about the clear distinction between simple and complex requests.

Pustay stated that these agencies should not be using the simple track for requests that require worldwide searches:

The FOIA allows agencies to establish multiple tracks for processing requests so requests can be processed as efficiently as possible. In guidance issued to all agencies for use in preparing their Annual FOIA Reports, the Department of Justice defines the three most common tracks. One of those tracks is the “simple” track. A “simple” request is one that is placed in the fastest, non-expedited track “based on the low volume and/or simplicity of the records requested.” The Office of Information Policy will reach out to the State Department and to USAID to discuss the criteria they are using to place requests in their “simple” track to ensure that they are properly characterizing those requests. [Emphasis added]

We are glad that Pustay pledged to take action, but we know the problem doesn’t end with proper categorization of requests.

Even if these agencies start properly characterizing the complex requests as such, that won’t do anything to speed up their processing time. According to OIP’s Summary of Annual FOIA Reports, the average processing times for simple track requests across all departments and agencies was 23.65 days in FY 2011, and for complex track requests it was 103.74 days.

In the Summary of Annual FOIA Reports, OIP provided some additional data on how long it takes agencies and departments to process expedited FOIA requests. (FOIA processing should be expedited when an individual’s life or safety would be jeopardized or if substantial due process rights of the requester would be impaired by the failure to process a request immediately.) According to OIP, expedited requests “can be either simple or complex in their scope, which causes comparisons to be necessarily imperfect.”

OIP’s summary indicated that in addition to winning the Razzie for highest average processing time for simple requests among the departments, the State Department reported the highest average processing time for expedited requests—an average of 926 days. We have reached out to State for comment on the reasons behind these delays, and we will update you as soon as we receive a response.

926 days is more than two years of wait time—and that’s for requests that constitute exceptional need or urgency. State clearly needs to fix the problem to ensure that requests don’t end up in a black hole and the public has prompt access to critical information. We heard unofficially from an inside source that the State Department is working diligently to get their FOIA processing under control. We hope so!

Too often it takes far too long for requesters to receive the information they are seeking. Several months ago, POGO did our own (smaller-scale) analysis, leading us to conclude that some agencies are failing to even acknowledge receipt of FOIA requests within 20 days, as required by law. There is certainly room for improvement across the federal government, not only at the agencies with the highest averages according to OIP.

We’ll keep you posted on the progress.