Celebrating FOIA's Forty-Fifth Anniversary
Assessing This Past Year's Progress in Implementing Attorney General Holder's FOIA Guidelines
On July 4, 1966, President Lyndon Johnson signed into law a revision to the Administrative Procedure Act, which became known as the Freedom of Information Act. Agencies were given one year to prepare, with the law becoming effective July 4, 1967. In June of 1967, Attorney General Ramsey Clark issued a Memorandum for Executive Departments and Agencies concerning implementation of the new law. He began by declaring: ‟If government is to be truly of, by, and for the people, the people must know in detail the activities of government. Nothing so diminishes democracy as secrecy. Self-government, the maximum participation of the citizenry in affairs of state, is meaningful only with an informed public.”
Forty-five years after the FOIA's enactment, those words still resonate. As President Obama declared in his FOIA Memorandum issued January 21, 2009: ‟A democracy requires accountability and accountability requires transparency. . . . In our democracy, the Freedom of Information Act (FOIA) which encourages accountability through transparency, is the most prominent expression of a profound national commitment to ensuring an open Government.” Attorney General Holder highlighted in his FOIA Guidelines issued during Sunshine Week 2009 that the FOIA ‟reflects our nation's fundamental commitment to open government.” In keeping with the President's FOIA Memorandum, Attorney General Holder provided guidelines to all agencies on applying the presumption of openness, ensuring agency accountability, improving FOIA performance, and working proactively and promptly to make information available to the public.
The public's use of the FOIA has grown exponentially over the decades since its enactment. Indeed, it is interesting to see early estimates of the costs associated with administering the FOIA. Just over a decade after the law's passage, an informal survey taken by the Department of Justice to assess agency costs to administer the FOIA placed those governmentwide costs at near $50 million, which itself was far higher than originally estimated by Congress. By Fiscal Year 2010, the estimated governmentwide costs to administer the Act, as reported by agencies in their Annual FOIA Reports, was over $400 million – or an increase of 700%. Moreover, in Fiscal Year 2010 nearly 4000 full-time FOIA staff or their equivalent worked to implement the FOIA at agencies across the government. These figures reveal the substantial commitment of resources currently dedicated to administering this transformational law enacted by Congress forty-five years ago.
In his FOIA Guidelines, Attorney General Holder stressed that ‟[e]ach agency must be fully accountable for its administration of the FOIA.” He directed agencies to provide a report each year to the Department of Justice describing the steps taken to improve FOIA operations and facilitate disclosure of information. The first reports were submitted in March 2010 and the Office of Information Policy (OIP) prepared an extensive summary of them. Agencies submitted their 2011 Chief FOIA Officer Reports in March 2011, describing the steps taken to increase transparency. Each Chief FOIA Officer Report addresses five key areas: 1) steps taken to apply the presumption of openness; 2) steps taken to ensure utilization of an effective system for responding to requests; 3) steps taken to increase proactive disclosures; 4) steps taken to greater utilize technology; and 5) steps taken to reduce backlogs and improve timeliness in responding to requests. A wealth of detail is provided in the Reports, including examples and descriptions of various initiatives undertaken by agencies to improve transparency. All agency Chief FOIA Officer Reports are collected and made available by OIP on the “Reports” page of its website.
After reviewing the Chief FOIA Officer Reports, OIP has prepared an assessment of the progress made by the Executive Departments in implementing the President's FOIA Memorandum and the Attorney General's FOIA Guidelines. The fifteen Departments account for nearly 80% of all FOIA requests processed by the government. Those Departments were scored on elements from all five of the key areas, as reflected by the information provided in their 2011 Chief FOIA Officer Reports and their Fiscal Year 2010 Annual FOIA Reports. A green score was given by OIP when the Department reported accomplishing the milestone; yellow reflects mixed progress in reaching the milestone; and red reflects that the milestone was not met. This graphic representation readily illustrates the many accomplishments achieved by the Departments this past year. It also highlights the areas in need of further improvement.
For example, agencies have taken concrete steps to apply the presumption of openness. All the Departments conducted or attended training on the President's FOIA Memorandum and the Attorney General's FOIA Guidelines and have modified their internal guidance. All have made discretionary disclosures of otherwise exempt material and have a system to identify potential discretionary releases. As to numerical increases in the numbers of requests where records are provided in full or in part, eight of the fifteen Departments increased their disclosures in full, while seven did not. Ten Departments increased their partial disclosures, while five did not.
All Departments have taken steps to assess whether they have adequate staffing. All work with their Open Government Team. Twelve reported having sufficient IT support, with two Departments reporting mixed responses to this milestone.
The Departments have all embraced proactive disclosures as a key element in fulfilling the Attorney General's FOIA Guidelines. All have added material to their websites and have systems in place to identify candidates for proactive disclosure. All utilize social media to interact with the public. Every agency was asked to provide a success story in their Chief FOIA Officer Report that was emblematic of their efforts to implement the FOIA Guidelines. Many of the Departments choose as their success story an initiative connected with proactive disclosure of information. Those success stories have been compiled by OIP and provide a rich illustration of the various innovations undertaken by the Departments to make information available to the public without the need for making a FOIA request.
As to utilization of technology, the Departments reported that during this past year they either increased the number of components utilizing technology, or were at 100% use, both in receipt of FOIA requests and the tracking of them. Fourteen of the fifteen Departments likewise increased or were at 100% usage of technology for processing requests. All Departments were either satisfied with their technology for preparing Annual FOIA Reports, or were taking steps to improve that technology.
Regarding reduction in backlogs, eight of the Departments reduced their backlogs of pending requests, while seven did not. Likewise, eight Departments reduced their backlog of pending appeals, while seven did not. Six of the Departments closed their ten oldest pending requests, while nine did not. Five closed their ten oldest pending administrative appeals, while ten did not. All Departments reported that they set goals and monitor the progress of their FOIA caseloads. All but one had improved or upgraded their technology to assist with backlog reduction. All reported the involvement of their Chief FOIA Officer in the administration of the FOIA at their Department.
This assessment illustrates that all the Departments have taken multiple, concrete steps in all five of the key areas to implement the FOIA Guidelines. The Department of the Interior is scored with “all green” for these milestones. The Department of Justice is green in all but one milestone. HHS, HUD, State, and Transportation were green in all but two milestones. It is important to recognize that for all Departments, the full context and scope of their administration of the FOIA is detailed in their Chief FOIA Officer Reports, which should be read in conjunction with this assessment. For example, for some agencies that did not have a numerical increase in the number of responses where records were released in full or in part, the percentage of such releases might nonetheless have risen. Still, there is no doubt that more work remains to be done, particularly in the area of backlog reduction both for requests and administrative appeals and most particularly in the closing of the ten oldest pending requests and appeals at each agency each fiscal year.
Forty-five years ago Congress enacted the FOIA as a vital means of ensuring an informed public. The Act remains vibrant to this day, with nearly 600,000 requests filed just this past fiscal year. Departments and agencies in turn are working not just to process those requests, but to do so more efficiently and with less delay. They are also working to make information available to the public proactively. It is those efforts that are helping to bring about a new era of open government, in keeping with the ideals that are the foundation for the FOIA itself.