FOIA Post (2010): Summary of Annual FOIA Reports for Fiscal Year 2009

May 22, 2008

FOIA Post

Summary of Annual FOIA Reports for Fiscal Year 2009

Introduction

All federal agencies are required to prepare Annual FOIA Reports each fiscal year
that include detailed statistics on the number and disposition of FOIA requests
and appeals received, processed, and pending at each agency. These Annual FOIA
Reports are required to be submitted to the Attorney General no later than February
1 of each year. See 5 U.S.C. § 552(e)(1) (2006 & Supp. II 2008), amended by
OPEN FOIA Act of 2009, Pub. L. 111-83, 123 Stat. 2184.

As a result of the OPEN Government Act of 2007, which amended the reporting
requirements for Annual FOIA Reports, and the subsequent reporting guidelines
issued by the Department of Justice, Office of Information Policy (OIP) in
conjunction with OMB, see FOIA Post, "2008 Guidelines for Agency Preparation
of Annual FOIA Reports" (posted 5/22/2008), agencies' Annual FOIA Reports
beginning in Fiscal Year 2008 contain a wealth of additional data.

Significantly, agencies are now required to report statistics for each component
as well as for the agency overall. Agencies also now include data on backlogs
and on the ten oldest pending requests. Moreover, in order to provide a more
accurate picture of FOIA activity, DOJ directed agencies to only include those
first-party access requests where the FOIA was utilized in some way in responding
to the request. See FOIA Post, "2008 Guidelines for Agency Preparation
of Annual FOIA Reports" (posted 5/22/2008).

Set forth below is a summary compilation of a sampling of the information
contained in the Annual FOIA Reports prepared by the fifteen federal departments
and seventy-nine federal agencies for Fiscal Year 2009. This summary is done
each year by OIP to provide an overall picture of FOIA activity across the
government.

Number of Requests Received

The total number of FOIA requests received by all federal departments and
agencies during Fiscal Year 2009 was 557,825. This total reflects a decrease
in the total number of requests reported received compared to the number reported
during Fiscal Year 2008, which was 605,491.

Of all federal departments, DHS reported the largest number of requests received,
103,093. VA reported the second-highest number of requests received, 69,432,
and DOD's total, 67,434, was third highest. DOJ reported the fourth highest
at 61,391 requests received. The fifth highest was HHS with 48,564 requests,
followed by the Department of the Treasury, which received 20,075 requests.

Among the federal agencies, SSA topped the list reporting 31,340 requests
received. NARA received the next highest number of requests with 18,581 received.
EEOC was third highest, receiving 15,990 requests, and EPA was fourth highest,
receiving 10,317 requests.

The federal departments that reported receiving the lowest numbers of requests
during Fiscal Year 2009 were DOE, which received 1809 requests, the Department
of Commerce, which received 2091 requests, and the Department of Education,
which received 2307 requests. The following agencies received the fewest requests
in Fiscal Year 2009: the United States African Development Foundation, which
received no requests, the Federal Financial Institutions Examination Council,
which received two requests, the Farm Credit System Insurance Corporation,
which received three requests, the Inter-American Foundation and the National
Capital Planning Commission, which each received eight requests, the Special
Inspector General for Iraq Reconstruction, which received twelve requests,
the Defense Nuclear Facilities Safety Board and the American Battle Monuments
Commission, which each received thirteen requests, and the Surface Transportation
Board, which received fourteen requests.

Backlog Reduction

Overall, the number of backlogged requests pending as of the end of Fiscal
Year 2009 was 77,377. This figure represents approximately fourteen percent
of the requests received during the fiscal year. Significantly, the overall
backlog dropped by 55,918, from 133,295 backlogged requests in Fiscal Year
2008, which represents a reduction of over forty percent.

Of the federal departments, all reported having some backlog. DHS reported
the highest number of backlogged requests, with 18,918 in its backlog, and
yet that number was reduced significantly from the 74,879 backlogged requests
reported by DHS in Fiscal Year 2008. DHS's backlog accounts for twenty-four
percent of the overall reported 2009 backlog. HHS reported 17,470 backlogged
requests, and DOD reported the next highest with 11,505. Combined, these three
departments account for approximately sixty percent of the total number of
backlogged requests. The Department of Commerce reported the fewest backlogged
requests with 159. The Department of Education reported 295, and DOE reported
the third lowest with 297.

By contrast, among the agencies, thirty reported no backlogged requests as
of the end of Fiscal Year 2009. Another twenty-eight reported a backlog of
twenty or fewer requests. And only twenty had a backlog higher than twenty.
NARA reported the highest number of backlogged requests at 6856. The CIA reported
the next highest at 592, which is down significantly from the 940 reported
in Fiscal Year 2008. NASA reported the third highest at 431 backlogged requests.

Overall, the total number of reported backlogged FOIA administrative appeals
for Fiscal Year 2009 was 6116, down slightly from the 6197 reported in Fiscal
Year 2008. Of the federal departments, HUD reported no backlog of administrative
appeals. DOE reported two, and the Department of Education had twenty-eight
backlogged administrative appeals. DHS reported the highest number of backlogged
administrative appeals with 2747. DOD reported 575, and the Department of
State reported the third highest number at 458.

Again, among the agencies the numbers were quite different, with sixty-two
reporting no backlog of administrative appeals, and fourteen reporting fewer
than twenty. Only three agencies reported a backlog of administrative appeals
higher than twenty. The CIA reported the highest number of backlogged administrative
appeals, reporting 183. The EPA reported 79, down from 151 in Fiscal Year
2008, and the SEC reported the third highest number at 21, down from 45 in
Fiscal Year 2008.

The Ten Oldest Pending Requests
and Administrative Appeals

A distinct aspect of backlog reduction involves closing the oldest of the
pending requests and pending appeals at each agency. Progress continues to
be made by the departments and agencies, but there still remains much to be
done in this critical area of backlog reduction.

Of the fifteen federal departments, two, DOD and Treasury - as compared with
six in Fiscal Year 2008 - reported that their oldest request dated from the
1990s, while the remaining thirteen reported that their oldest requests dated
from 2000 through 2008. DOD reported the oldest pending request, which was
pending for 4215 days, since December 1, 1992. Treasury's oldest was pending
for 3671 days, since September 9, 1999. After that and after DOD's ten oldest
pending requests, which date from 1992 through 1994, the next oldest pending
request reported by a federal department was the Department of Energy's oldest
pending request, which was pending for 2479 days, since February 7, 2000.
The Department of the Interior reported the next oldest pending request, which
was pending for 2289 days, since August 14, 2000.

There is a significant improvement when the range of dates among the ten
oldest requests is examined. For the fifteen federal departments, twelve reported
a year or multi-year jump between the age of their oldest request and the
age of their tenth oldest request.

Among the agencies, twenty-eight agencies reported that their oldest pending
request was from 2009, and forty-four percent of the agencies reported that
their oldest request was less than one year old. Two reported having requests
pending since the 1990s: NARA reported a request pending for 6209 days, since
September 21, 1992, and the CIA reported a request pending for 4012 days,
since October 7, 1998. After NARA's and the CIA's ten oldest pending requests,
the next oldest pending request reported by an agency was the Consumer Product
Safety Commission's oldest pending request, which was pending for 1586 days,
since July 29, 2004.

As to the oldest pending administrative appeals, the Department of Education,
the Department of Justice, and the VA reported that their oldest appeal was
less than one year old. Eight of the remaining federal departments reported
that their oldest appeals were from 2002 through 2007, and two of the departments,
HHS and DOD - down from four in Fiscal Year 2008 - reported that their oldest
administrative appeals were from the 1990s. HHS reported the oldest pending
administrative appeal, which was pending for 3848 days, since June 23, 1994,
and DOD reported an administrative appeal pending for 3141 days, since March
17, 1997. After HHS's and DOD's ten oldest pending appeals, the next oldest
pending appeal reported by an agency was the Department of Agriculture's oldest
pending appeal, which was pending for 1944 days, since April 22, 2002. Notably,
HUD reported having no pending administrative appeals in the fiscal year.

Among the agencies, fifty-six had no pending administrative appeals and another
fifteen reported that their oldest pending administrative appeal was from
2009. Approximately twenty percent of the agencies reported that their oldest
administrative appeal was less than one year old. One agency reported having
administrative appeals pending since the 1990s: the CIA reported an administrative
appeal that was pending for 5272 days, since April 26, 1995. After the CIA's
ten oldest pending appeals, the next oldest pending administrative appeal
reported by an agency was EPA's oldest pending appeal which was pending for
2122 days, since April 24, 2001.

Disposition of Requests

The total number of FOIA requests processed by all federal departments and
agencies during Fiscal Year 2009 was 612,893, which is down from the 623,186
processed in Fiscal Year 2008. Still, the number processed in Fiscal Year
2009 exceeds by over fifty-five thousand the number of FOIA requests received
across the government, reflecting government-wide progress in the reduction
of backlogged requests.

Approximately sixty percent of these requests resulted in the release of
either all or some of the requested records. Approximately 407,650 requests
were processed for exemption applicability and records were either released
in full or in part, or denied in full based on the FOIA's exemptions. Of that
407,650, more than half resulted in full releases of information, and approximately
ninety-four percent resulted in release of either some or all of the requested
information. Fifty-six percent of grants were full grants of all the requested
information. The full denials based on exemptions constituted just over six
percent of these requests.

For the departments, 321,961 requests were processed for exemption applicability.
Records were released in full or in part for 302,075 of these requests,
or for nearly ninety-four percent of these requests. Eleven of the fifteen
departments released records in full or in part more than ninety percent
of the time. Those departments reporting more than ninety percent releases
for requests involving exemption applicability were the Departments of
Agriculture, Commerce, DOD, DOE, Education, HHS, DHS, Interior, Justice,
Transportation, and Treasury. Of those releases, for eight departments,
full releases were made for more than seventy percent of the requests.
These Departments were Agriculture, Commerce, Energy, HHS, Interior, Justice,
Treasure, and VA. By contrast, full denials based on exemptions were made
for only six percent of the requests processed for exemption applicability
by the departments.

The departments and agencies combined provided a partial grant of requested
records for nearly 170,000 requests. Notably, this is an increase of approximately
fifty thousand partial grants of access as compared with Fiscal Year 2008.

Departments and agencies had no responsive records for approximately thirteen
percent of all requests. Approximately three percent of all requests were
withdrawn by the requester.

Use of Exemptions

As has been the case for many years, the FOIA exemption cited most often
was Exemption 6 to protect matters of personal privacy. Exemption 7(C), which
also protects personal privacy, was the next most frequently used exemption.
Exemption 5 was applied the third highest number of times. Under Exemption
3 of the Act, agencies withheld information pursuant to a variety of nondisclosure
statutes. OIP will post separately a list of all Exemption 3 statutes upon
which the departments and agencies relied.

Administrative Appeals of
Initial Denials of Requests

DOJ, among all federal departments and agencies, continues to receive the
largest number of administrative appeals of initial denials of access requests.
It received 2897 appeals during Fiscal Year 2009. Among federal departments,
DHS received the second highest number of appeals, receiving 2129, and DOD
received the third highest, receiving 961.

Among the agencies, the EEOC topped the list with 335 administrative appeals,
followed by the SEC, which received 247, and the CIA, which received 241.
By contrast, twenty-five agencies reported receiving no administrative appeals
in Fiscal Year 2009, and an additional twenty-five 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 2009. Only six agencies received more than
a hundred appeals during the year.

The total number of administrative appeals received by the departments and
agencies was 9804. The total number processed was 9579. DOJ processed the
most appeals, processing 2960, DHS processed the next highest number at 1673,
and DOD processed the third highest number at 1025.

Median Number of Days to Process Simple,
Complex, and Expedited Requests

Ten departments - the Departments of Agriculture, Commerce, Education, Energy,
HHS, Interior, DOJ, Labor, DOT, and Treasury - and sixty-two agencies reported
processing simple requests within a median number of days of twenty days or
fewer. The highest median for simple requests among departments was eighty-seven,
as reported by the Department of State. The highest median among the agencies
for simple requests was 498, as reported by the Legal Services Corporation.
After the Legal Services Corporation, the next highest median reported by
an agency was much lower, at seventy-four, as reported by the Office of the
Director of National Intelligence.

Three departments - the Departments of Agriculture, Labor and Treasury -
reported processing complex requests within a median number of days of twenty
days or fewer. The remaining departments that reported median number of days
data for processing complex requests reported medians ranging from 32 to 339
days. Five agencies reported a median of twenty days or fewer for processing
complex requests. The remaining agencies that reported median number of days
data for processing complex requests reported medians ranging from 22 to 445
days.

Seven departments - the Departments of Agriculture, Commerce, Homeland Security,
Interior, Labor, DOT, and VA - reported processing expedited requests within
a median number of days of twenty days or fewer. The remaining departments
that reported median number of days data for processing expedited requests
reported medians ranging from twenty-five to seventy-four days. Twenty-one
agencies reported a median of twenty days or fewer for processing expedited
requests. The remaining agencies that reported median number of days data
for processing expedited requests reported medians ranging from 30 to 230
days.

Requests for Expedited Processing

During Fiscal Year 2009, departments and agencies reported granting 1801
requests for expedited processing, and denying 3857 such requests. Of the
departments, DOD reported the highest number of such grants, reporting that
it granted expedited processing for 500 requests. The next highest numbers
were reported by DOJ with 198 granted, then by the Department of Labor with
154 granted. Among the agencies, the EEOC reported the highest number of such
grants by a wide margin; it granted expedited processing to 223 requests.

Consultations on FOIA Requests

Beginning in Fiscal Year 2008, the Department of Justice began requiring
federal departments and agencies for the first time to report, as a distinct
category, data about the consultations they received from other agencies or
components within their agency. Because some departments receive significant
numbers of consultations, that data is now collected so that a more complete
picture of FOIA processing activity can be drawn.

In Fiscal Year 2009, the number of consultations received by federal departments
and agencies combined was 10,434. Among all federal departments, the Department
of State reported receiving the highest number of consultations by far, receiving
6014, followed by DOJ with 1220, DOD with 1203, DHS with 510, and DOE with
175. The remaining departments reported receiving fewer than 100 consultations,
with HUD receiving only one consultation and three other departments receiving
fewer than ten. Among the agencies, the CIA reported receiving the highest
number of consultations by a wide margin, receiving 895, followed by the EPA
with 53, and OMB with 27. The remaining agencies received twelve or fewer
consultations during the fiscal year.

The total number of consultations processed by federal departments and agencies
combined in Fiscal Year 2009 was 6800. Significantly, both DOJ and DOE reduced
their number of backlogged consultations, processing 109 more consultations
and 23 more consultations, respectively, than they received in the fiscal
year. Among the agencies, the CIA achieved substantial reduction of its backlogged
consultations, processing 137 more consultations than it received.

Seven of the fifteen departments reported that their oldest pending consultation
was less than one year old. Two departments reported that their oldest pending
consultation dated from the 1990s: DOD reported that its oldest pending consultation
was pending for 3563 days, since June 29, 1995, and DOE reported that its
oldest pending consultation was pending for 2623 days, since June 11, 1998.
The Department of State had the next oldest pending consultation, dating from
2003. By contrast, the remaining departments reported oldest consultations
dating from 2007 through 2008.

Among the agencies, only six had any pending consultations. The CIA reported
the oldest pending consultation, which was pending for 2987 days, since July
27, 2001, and EPA reported the next oldest pending consultation, which was
pending for 920 days, since January 30, 2006. After the CIA's and EPA's reported
oldest pending consultations, the agency with the next oldest pending consultation
was the Office of the United States Trade Representative, reporting that its
oldest pending consultation was pending for 556 days, since August 14, 2007.
The remaining agencies reported oldest pending consultations dating from September
2009.

Staffing Levels

Approximately 4000 "full time FOIA staff" were devoted to the administration
of the FOIA throughout the federal government during Fiscal Year 2009. That
figure includes full time FOIA employees plus the cumulated percentages of
time expended by personnel who work on FOIA as part of their duties. This
figure represents an over eight percent increase from fiscal year 2008 where
the number was 3691.

Among departments, DOD reported the greatest number of full time FOIA staff,
reporting approximately 870. DOJ reported the second-highest number, approximately
425, and DHS was third highest, with approximately 380 full time FOIA staff.
The departments with the fewest full time FOIA staff were the Department of
Commerce, reporting approximately twenty-nine, followed by the Department
of Education with nearly thirty-one, and DOE with approximately fifty-nine.

Among agencies, fifty-seven agencies reported having the equivalent of five
or fewer full time FOIA staff during the fiscal year. The agencies reporting
the greatest numbers of full time FOIA staff were EPA with approximately 108,
SSA with 99, EEOC with nearly 55, the CIA with 52, and USPS with approximately
50 full time FOIA staff.

Costs

In Fiscal Year 2009, the total cost of all FOIA-related activities for all
federal departments and agencies, as reported in their Annual FOIA Reports,
was an estimated $382,244,225. This figure reflects an increase of nearly
forty-four million dollars from Fiscal Year 2008. Approximately twenty-eight
million dollars of these costs were reported as having been spent on litigation-related
activities. Of total costs, $9,067,078, or approximately three percent, was
reported to have been recouped by the government through the collection of
FOIA fees.

The federal department with the highest total costs was DOD, which spent
nearly eighty-nine million dollars on FOIA-related activities during Fiscal
Year 2009. DOJ and DHS were the departments reporting the second and third
highest costs, reporting nearly fifty million dollars and approximately forty-three
million dollars respectively. The federal department reporting the least amount
of spending on FOIA-related activities were HUD and Commerce, reporting over
2.3 million and 2.7 million respectively.

Among the federal agencies, sixteen reported spending over one million dollars
on FOIA-related activities during the fiscal year. EPA led this group, reporting
expenditures of over fifteen million dollars during the course of the year.
Among the others were the CIA, which spent nearly twelve million, SSA, which
spent nearly six million, USPS, spending nearly four million dollars, the
SEC, spending over three million dollars, and five agencies - NARA, the Federal
Reserve Board, the FDIC, GSA, and the EEOC - spending over two million dollars
each. At the lower end of the spectrum, eighteen agencies reported total FOIA-related
costs of less than $25,000 during the year.

Conclusion

As a result of the changes to the reporting requirements for
agency Annual FOIA Reports that began in Fiscal Year 2008, a vast amount of
data is now collected and reported regarding agencies' handling of FOIA
requests and appeals. OIP has highlighted here some key data elements in
order to provide an overall summary of agency FOIA activity. Links to each
agency's Annual FOIA Report are easily accessible from DOJ's website. (posted 06/04/2010)

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