FOIA Post (2008): Summary of Annual FOIA Reports for FY 2007

July 1, 2008

FOIA Post

Summary of Annual FOIA Reports for Fiscal Year 2007

Introduction

All federal agencies must prepare annual reports of their Freedom of Information Act activities. These annual reports are prepared on a fiscal year basis, and must be submitted to the Attorney General no later than February 1. See 5 U.S.C. § 552(e) (2006), amended by Open Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524.

In the past, although not required to do so under the FOIA, the Office of Information and Privacy (OIP) compiled summaries of the information contained in agency annual FOIA reports and made them publicly available. OIP resumed that practice beginning with the annual FOIA reports for Fiscal Year 2006. Set forth below is a summary compilation of the information contained in the annual FOIA reports prepared by the fifteen federal departments and seventy-seven federal agencies for Fiscal Year 2007.

Number of Requests Received

The total number of Freedom of Information Act/Privacy Act access requests received by all federal departments and agencies during Fiscal Year 2007 was 21,758,651.1 This is 346,080 more than the number of requests received during Fiscal Year 2006, an increase of 2%. Several federal departments received greater numbers of requests, particularly the Department of Veterans Affairs, the Department of Health and Human Services, the Department of Labor, the Department of Defense, and the Department of Transportation.

Of all federal departments, the Department of Veterans Affairs reported the largest number of requests, 2,008,589, a figure that includes first party access requests by recipients of VA services. This is a 4% increase over the previous year. The Department of Health and Human Services received the second highest number of requests, 289,721, and the Department of Homeland Security's total, 108,416, was third highest.

Among the federal agencies, and far surpassing all of the federal departments as well, the Social Security Administration topped the list with 18,995,845 requests, 304,814 more than it had received the preceding fiscal year, reflecting an increase of 2%. The Equal Employment Opportunity Commission received the next highest number of requests with 14,602. The Office of Personnel Management was third highest with 14,459 requests, and the National Archives and Records Administration was fourth highest with 12,185 requests.

Eight federal departments, including the Department of Homeland Security and the Department of Agriculture, reported receiving fewer requests in Fiscal Year 2007 than in Fiscal Year 2006. The federal departments reporting the lowest numbers of requests during Fiscal Year 2007 were the Department of Education, with 1,792 requests, and the Department of Commerce, with 1,852 requests.

Of the federal agencies, thirty-four received fewer requests in Fiscal Year 2007. The following agencies received the fewest requests: the Farm Credit System Insurance Corporation (seven), the Privacy and Civil Liberties Oversight Board (eleven), the Inter-American Foundation (twelve), the National Capital Planning Commission (thirteen), the American Battle Monument Commission and the Defense Nuclear Facilities Safety Board (sixteen each), and the Federal Maritime Commission and the Postal Regulatory Commission (seventeen each).

Backlog Reduction

In 2007, pursuant to Executive Order 13,392, "Improving Agency Disclosure of Information," federal agencies made a concerted effort to reduce their FOIA request backlogs. Agency backlogs of requests pending beyond the statutory time period have long been a concern, and the Executive Order directed agencies to address this problem. Not all agencies have FOIA request backlogs, but for those that do, the Executive Order called upon them to "identify ways to eliminate or reduce" them. See Exec. Order No. 13,392, Sec. 3(a)(v); see also id. at Sec. 3(b)(ii). Agencies' efforts to reduce their FOIA request backlogs are reflected in two ways in their individual annual FOIA reports.

First, in Section XII, many agencies provide a narrative describing their efforts and successes in reducing their backlogs. Second, Section V of the annual reports sets forth the number of requests "pending" at the end of the fiscal year. However, because not all "pending" requests have necessarily been pending beyond the statutory response time period, the number of "pending" requests does not equal the number of requests properly counted as "backlogged" (i.e., pending beyond the statutory time period). This issue has been remedied going forward as the Department of Justice has issued new guidelines for agency Annual FOIA Reports which require the reporting of backlogged requests starting with Fiscal Year 2008.

Overall, the total number of requests reported pending at federal departments and agencies at the end of Fiscal Year 2007 was 217,237, a decrease of 14% from the 251,314 pending requests reported for Fiscal Year 2006. This overall decrease is attributable to the decreases at roughly one-third of all departments and agencies combined, twenty-one of which also experienced a decrease in the number of incoming requests.

Although Fiscal Year 2007 saw an overall decrease in the number of pending requests, a total of thirty-four departments and agencies combined reported an increase in their number of pending requests. Five of the fifteen federal departments reported an increase: the Department of Defense, the Department of Labor, the Department of State, the Department of Transportation, and the Department of Education. In addition, twenty-nine federal agencies reported an increase in their pending requests. Of these, the Consumer Product Safety Commission, the Social Security Administration, the Pension Benefit Guaranty Corporation, the National Aeronautics and Space Administration, the Office of Personnel Management, and the National Labor Relations Board reported the largest increases.

Seventeen federal agencies had no pending requests at the beginning of the fiscal year and processed all incoming requests during the year, thereby achieving a zero balance at the end of the fiscal year. Of these, the agencies that processed the greatest numbers of requests were: the National Endowment for the Arts (fifty-seven), the Commission on Civil Rights (forty-six), the Federal Housing Finance Board (forty-three), the Office of National Drug Control Policy (forty-two), and the Corporation for National and Community Service (thirty-eight).

Disposition of Requests

The total number of access requests processed by all federal departments and agencies during Fiscal Year 2007 was 21,792,896, exceeding the number of requests processed during the preceding fiscal year by 408,461. Five of the fifteen federal departments, provided "total grants" of access more than fifty percent of the time. These Departments were the Department of Agriculture, the Department of Energy, the Department of Health and Human Services, the Department of the Treasury, and the Department of Veteran Affairs. Among the agencies, twenty-four provided "total grants" of access more than fifty percent of the time.

Agencies may withhold information under one or more of the FOIA's nine exemptions or they may respond to requests by citing, in annual report terminology, "other reasons for nondisclosure." Such reasons include "no records," "referrals," "request withdrawn," a "fee related" reason, "records not reasonably described," "not a proper FOIA request for some other reason," "not an agency record," and "duplicate request." Sixty-four of all departments and agencies cited "no records" as the most-often-used such reason for nondisclosure.

Use of Exemptions

The FOIA exemption cited most often was Exemption 6, used to protect matters of personal privacy. If the subsections of Exemption 7 were counted together, rather than as individual exemptions, the Exemption 7 total would far exceed that of Exemption 6. Under Exemption 3 of the Act, agencies withheld information pursuant to a variety of nondisclosure statutes.

Administrative Appeals of Initial Denials of Requests

The Department of Justice, among all federal departments and agencies, received the largest number of administrative appeals of initial denials of access requests. It received 2,560 appeals during Fiscal Year 2007. Among federal departments, the Department of Homeland Security received the second highest number of appeals, receiving 1,656, and the Department of Defense received the third highest, receiving 1,040.

Among the agencies, the Equal Employment Opportunity Commission topped the list with 277 administrative appeals, followed by the Central Intelligence Agency, receiving 205, and the United States Postal Service, receiving 172. By contrast, twenty-six agencies reported no administrative appeals in Fiscal Year 2007, and an additional twenty-seven agencies reported receiving five or fewer appeals during the year. In other words, over half of the agencies subject to the FOIA received no more than five administrative appeals of initial FOIA denials during Fiscal Year 2007.

Median Number of Days to Process and Median Number of Days Pending

Expressed in agencywide median numbers, the Department of Defense and the Department of Commerce reported that they processed relatively simple requests in twenty or fewer working days. Because most departments, such as the Department of Justice and the Department of Health and Human Services, are divided into components or subagencies (each handling its own FOIA processing on a decentralized basis), those departments reported their FOIA statistics accordingly, rather than reporting an agencywide median of the number of days taken to process requests. As a result of the new guidelines for annual reports, agencywide figures will be required to be reported starting in Fiscal Year 2008. Of the sixty-five agencies reporting data on the median number of days to process simple requests, forty-eight did so in twenty or fewer days.

With respect to the median number of days that requests were pending at the end of Fiscal Year 2007, among the departments, the Department of Commerce reported the lowest number, reporting twenty-six days. The Department of State had the highest number, reporting 226 days. Of the agencies, twenty-five reported twenty or fewer days. Only eighteen agencies reported that the median number of days that requests were pending was greater than sixty.

Expedited Processing

During Fiscal Year 2007, departments and agencies reported receiving 30,509 requests for expedited processing and reported granting 13,767 of those requests. The Department of Veterans Affairs reported the highest number of such grants by a wide margin. The next highest numbers were reported by the Department of Defense, the Department of Homeland Security, and the Department of Justice.

Staffing Levels

A total of 5,367.216 employees (expressed in aggregate work-years) were devoted to administration of the FOIA throughout the federal government during Fiscal Year 2007, a decrease of 141.994 employees, or 3%, from Fiscal Year 2006.

Among departments, the Department of Defense reported the greatest number of employees, reporting 970.50. The Department of Veterans Affairs reported the second highest number, 881.17, and the Department of Homeland Security was third highest, with just over 800. The departments with the fewest FOIA employees were the Department of Commerce, reporting 18.46, followed by the Department of Education with 22.6, and the Department of Housing and Urban Development with 68.5.

Among agencies, fifty-five agencies reported having the equivalent of five or fewer FOIA employees during the fiscal year. The agencies reporting the greatest numbers of FOIA employees were the Social Security Administration with 396, the Environmental Protection Agency with 119.10, the Central Intelligence Agency with 82.2, the Office of Personnel Management with 41.63, and the Equal Employment Opportunity Commission with 40.57.

Costs

In Fiscal Year 2007, the total cost of all FOIA related activities for all federal departments and agencies, as reported in their annual FOIA reports, was an estimated $369,431,500.55. This figure marks a decrease of 7% from the preceding fiscal year. Over sixteen million dollars of these costs were reported as having been spent on litigation related activities. Of total costs, $10,742,105.08, or 3%, was reported to have been recouped by the government -- albeit generally not by the individual federal agencies -- through the collection of FOIA fees.

The federal department with the highest total costs was the Department of Defense, which spent nearly sixty-seven million dollars on FOIA related activities during Fiscal Year 2007. The Department of Veterans Affairs and the Department of Justice were the departments reporting the second and third highest costs, reporting more than fifty-one million dollars and more than forty-seven million dollars respectively. The federal department reporting the least amount of spending on FOIA-related activities was the Department of Commerce, reporting less than two million dollars. Also at the lower end of FOIA-related spending was the Department of Education, reporting slightly over two million dollars, and the Department of Housing and Urban Development, which reported spending under four million dollars.

Among the federal agencies, fourteen reported spending over one million dollars on FOIA matters during the fiscal year. The Social Security Administration led this group, reporting expenditures of nearly thirty million dollars during the course of the year. Among the others were the Central Intelligence Agency and the Environmental Protection Agency, each spending over ten million dollars, the Securities and Exchange Commission, spending nearly four million dollars, and four agencies - the National Archives and Records Administration, the United States Postal Service, the Equal Employment Opportunity Commission, and the National Aeronautics and Space Administration -- spending over two million dollars each. At the lower end of the spectrum, thirteen agencies reported total FOIA-related costs of $25,000 or less during the year.

Comparisons with Previous Years

The Department of Justice's format for annual FOIA reports in Fiscal Year 2007 included a section (Section VIII) entitled "Comparisons with Previous Year(s)." In the past, agencies used this optional section to provide additional information about their administration of the Act that was of particular significance to them and provided additional statistics where applicable. In light of Executive Order 13,392 and the addition of Section XII to the annual report (discussed below), many departments and agencies either cross-referenced to Section XII or included only limited information in their Section VIII discussions. For Fiscal Year 2007, the information provided in Section VIII was generally limited to comparisons of the number of FOIA requests received and processed between Fiscal Years 2007 and 2006.

Section XII

As discussed, on December 14, 2005, the President issued Executive Order 13,392, entitled "Improving Agency Disclosure of Information." In order to meet the requirements of the Executive Order, all federal agencies were required to include a new section, "Section XII," in their 2006 and 2007 annual FOIA reports. This section, entitled "Report on Executive Order 13,392 Implementation," required descriptions of agencies' progress in implementing the milestones and goals of their FOIA Improvement Plans. The reporting period for Section XII differed from that used for the rest of the annual report. The reporting period for Section XII included agencies' progress through January 2008, whereas the remainder of the annual report addressed Fiscal Year 2007.

All of the FOIA Improvement Plans are agency-specific, and agencies had differing goals and milestones, including backlog reduction. In the Section XII discussions, agencies described their efforts in a wide variety of FOIA improvement areas, including proactive disclosures, use of the Internet to inform the public, improved use of information technology, utilization of FOIA request tracking systems, and improved customer service.

A detailed description of agency progress in implementing their FOIA Improvement Plans can be found in the May 30, 2008 Attorney General's Report to the President Pursuant to Executive Order 13,392, Entitled "Improving Agency Disclosure of Information." See http://www.justice.gov/archive/oip/ag-rpt08/ag-report-to-president06012008.pdf.
(posted 7/01/2008)

1 Starting in 2005, the Social Security Administration (SSA), changed its practice of designating and recording certain first-party access requests, resulting in an increased number of reported requests. For Fiscal Year 2007, SSA reported 18,995,845 requests, dwarfing those for all departments and agencies combined, which together total 2,762,806 requests.

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