FOIA Update: OIP Guidance: Guidelines for Agency Preparation and Submission of Annual FOIA Reports

January 1, 1997

FOIA Update
Vol. XVIII, No. 3
1997

OIP Guidance


Guidelines for Agency Preparation and
Submission of Annual FOIA Reports

In enacting the Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, 110 Stat. 3048, Congress made major revisions to the part of the Freedom of Information Act, subsection (e), that pertains to the submission of annual reports by federal agencies on their administration of the Act. Congress revised the list of basic required elements for annual FOIA reports, altered the timetable and procedure for submitting them, and provided that the Department of Justice, in consultation with the Office of Management and Budget, would issue these guidelines for annual FOIA report preparation and submission. See 5 U.S.C. § 552(e),as amended by Electronic Freedom of Information Act Amendments of 1996, 5 U.S.C.A. § 552(e) (West Supp. 1997). Congress also addressed this subject in the House Report accompanying the amendments. See H.R. Rep. No. 104-795, at 27-29 (1996). These changes come into effect for the annual FOIA reports that will be prepared by federal agencies for the 1998 fiscal year. See FOIA Update, Fall 1996, at 11 (describing statutory changes).

The following basic required elements for annual FOIA reports are specified in the statute, as amended:

(1) The number of requests for records pending before the agency as of the end of the fiscal year.

(2) The median number of days that such requests had been pending before the agency as of that date.

(3) The number of requests for records received by the agency.

(4) The number of requests that the agency processed.

(5) The median number of days taken by the agency to process different types of requests.

(6) The number of determinations made by the agency not to comply with requests for records made to the agency.

(7) The reasons for each such determination.

(8) A complete list of all statutes that the agency relies upon to authorize the agency to withhold information under subsection (b)(3).

(9) A description of whether a court has upheld the decision of the agency to withhold information under each such statute.

(10) A concise description of the scope of any information withheld under each such statute.

(11) The number of appeals made by persons under subsection (a)(6).

(12) The result of such appeals.

(13) The reason for the action upon each appeal that results in a denial of information.

(14) The total amount of fees collected by the agency for processing requests.

(15) The number of full-time staff of the agency devoted to processing requests for records under the Act.

(16) The total amount expended by the agency for processing such requests.


ANNUAL REPORT GUIDANCE OUTLINE

So that all federal agencies' annual FOIA reports follow a relatively uniform approach and "similar format" for comparison purposes, H.R. Rep. No. 104-795, at 29 (1996), all agencies should prepare them along the lines of the following content outline:

I. Basic Information Regarding Report

A. Name, title, address, and telephone number of person(s) to be contacted with questions about the report.

B. Electronic address for report on the World Wide Web.

C. How to obtain a copy of the report in paper form.

II. How to Make a FOIA Request

• Agencies may either include descriptions here or provide them by cross-reference to their FOIA reference guides (which should be electronically linked for convenient electronic reference purposes).

A. Names, addresses, and telephone numbers of all individual agency components and offices that receive FOIA requests.

B. Brief description of the agency's response-time ranges.

C. Brief description of why some requests are not granted.

III. Definitions of Terms and Acronyms Used in the Report (to be included in each report)

A. Agency-specific acronyms or other terms.

B. Basic terms, expressed in common terminology.

1. FOIA/PA request -- Freedom of Information Act/Privacy Act request. A FOIA request is generally a request for access to records concerning a third party, an organization, or a particular topic of interest. A Privacy Act request is a request for records concerning oneself; such requests are also treated as FOIA requests. (All requests for access to records, regardless of which law is cited by the requester, are included in this report.)

2. Initial Request -- a request to a federal agency for access to records under the Freedom of Information Act.

3. Appeal -- a request to a federal agency asking that it review at a higher administrative level a full denial or partial denial of access to records under the Freedom of Information Act, or any other FOIA determination such as a matter pertaining to fees.

4. Processed Request or Appeal -- a request or appeal for which an agency has taken a final action on the request or the appeal in all respects.

5. Multi-track processing -- a system in which simple requests requiring relatively minimal review are placed in one processing track and more voluminous and complex requests are placed in one or more other tracks. Requests in each track are processed on a first-in/first out basis. A requester who has an urgent need for records may request expedited processing (see below).

6. Expedited processing -- an agency will process a FOIA request on an expedited basis when a requester has shown an exceptional need or urgency for the records which warrants prioritization of his or her request over other requests that were made earlier.

7. Simple request -- a FOIA request that an agency using multi-track processing places in its fastest (nonexpedited) track based on the volume and/or simplicity of records requested.

8. Complex request -- a FOIA request that an agency using multi-track processing places in a slower track based on the volume and/or complexity of records requested.

9. Grant -- an agency decision to disclose all records in full in response to a FOIA request.

10. Partial grant -- an agency decision to disclose a record in part in response to a FOIA request, deleting information determined to be exempt under one or more of the FOIA's exemptions; or a decision to disclose some records in their entireties, but to withhold others in whole or in part.

11. Denial -- an agency decision not to release any part of a record or records in response to a FOIA request because all the information in the requested records is determined by the agency to be exempt under one or more of the FOIA's exemptions, or for some procedural reason (such as because no record is located in response to a FOIA request).

12. Time limits -- the time period in the Freedom of Information Act for an agency to respond to a FOIA request (ordinarily 20 working days from proper receipt of a "perfected" FOIA request).

13. "Perfected" request -- a FOIA request for records which adequately describes the records sought, which has been received by the FOIA office of the agency or agency component in possession of the records, and for which there is no remaining question about the payment of applicable fees.

14. Exemption 3 statute -- a separate federal statute prohibiting the disclosure of a certain type of information and authorizing its with holding under FOIA subsection (b)(3).

15. Median number -- the middle, not average, number. For example, of 3, 7, and 14, the median number is 7.

16. Average number -- the number obtained by dividing the sum of a group of numbers by the quantity of numbers in the group. For example, of 3, 7, and 14, the average number is 8.

IV. Exemption 3 Statutes

A. List of Exemption 3 statutes relied on by agency during current fiscal year.

1. Brief description of type(s) of information withheld under each statute.

2. Statement of whether a court has upheld the use of each statute. If so, then cite example.

V. Initial FOIA/PA Access Requests

• This should include all access requests, whether first-party or third-party.

• Both large and small agencies should provide information in the format presented below.

• Agencies may additionally use chart format for breakdown by multiple agency components.

A. Numbers of initial requests.

• Total of the numbers in Lines 1 and 2, minus the number in Line 3, should equal the number in Line 4.

1. Number of requests pending as of end of preceding fiscal year _______________

2. Number of requests received during current fiscal year _______________

3. Number of requests processed during current fiscal year _______________

4. Number of requests pending as of end of current fiscal year _______________

(Enter this number also in Line VII.B.1.)

B. Disposition of initial requests.

1. Number of total grants _______________

2. Number of partial grants _______________

3. Number of denials _______________

a. number of times each FOIA exemption used

(counting each exemption once per request)

(1) Exemption 1 _______________

(2) Exemption 2 _______________

(3) Exemption 3 _______________

(4) Exemption 4 _______________

(5) Exemption 5 _______________

(6) Exemption 6 _______________

(7) Exemption 7(A) _______________

(8) Exemption 7(B) _______________

(9) Exemption 7(C) _______________

(10) Exemption 7(D) _______________

(11) Exemption 7(E) _______________

(12) Exemption 7(F) _______________

(13) Exemption 8 _______________

(14) Exemption 9 _______________

4. Other reasons for nondisclosure (total) ______

a. no records ________________

b. referrals ________________

c. request withdrawn _______________

d. fee-related reason _______________

e. records not reasonably described _________

f. not a proper FOIA request for some other reason _______________

g. not an agency record _______________

h. duplicate request _______________

i. other (specify) _______________

VI. Appeals of Initial Denials of FOIA/PA Requests

• This should include all access requests, whether first-party or third-party.

• Both large and small agencies should provide information in the format presented below.

• Agencies may additionally use chart format for breakdown by multiple agency components.

A. Numbers of appeals.

1. Number of appeals received during fiscal year _______________

2. Number of appeals processed during fiscal year _______________

B. Disposition of appeals.

1. Number completely upheld _______________

2. Number partially reversed _______________

3. Number completely reversed _______________

a. number of times each FOIA exemption used

(counting each exemption once per appeal)

(1) Exemption 1 _______________

(2) Exemption 2 _______________

(3) Exemption 3 _______________

(4) Exemption 4 _______________

(5) Exemption 5 _______________

(6) Exemption 6 _______________

(7) Exemption 7(A) ____________

(8) Exemption 7(B) ____________

(9) Exemption 7(C) ____________

(10) Exemption 7(D) ____________

(11) Exemption 7(E) ____________

(12) Exemption 7(F) ____________

(13) Exemption 8 _______________

(14) Exemption 9 _______________

4. Other reasons for nondisclosure (total) ______

a. no records _______________

b. referrals _______________

c. request withdrawn _______________

d. fee-related reason _______________

e. records not reasonably described ________

f. not a proper FOIA request for some other reason _______________

g. not an agency record _______________

h. duplicate request ________________

i. other (specify) _______________

VII. Compliance with Time Limits/Status of Pending Requests

• If an agency believes that "average time" is a better measure of its performance, it should include that as well.

• For decentralized agencies, calculating an agency-wide median may be difficult; a reasonable estimate may be used instead.

• Both large and small agencies should provide information in the format presented below.

• Agencies may additionally use chart format for breakdown by multiple agency components.

• Agencies should count days from the time at which a request is "perfected."

• Agencies should separately report each track of a multi-track system, as well as an "expedited processing" track, and may report any other type of request at their option.

• Example for calculation of median: Given 7 requests completed during the fiscal year, aged 10, 25, 35, 65, 75, 80, and 400 days from date of perfection to date of completion, the total number of requests completed during the fiscal year would be 7 and the median age of the completed requests would be 65 days.

• Example for calculation of median: If there were 6 pending cases aged 10, 20, 30, 50, 120, and 200 days from date of perfection to date of completion, the total number of requests completed would be 6 and the median age would be 40 days (the average of the 2 middle numbers).

A. Median processing time for requests processed during the year.

1. Simple requests (if multiple tracks used).

a. number of requests processed ___________

b. median number of days to process _______

2. Complex requests (specify for any and all tracks used).

a. number of requests processed ___________

b. median number of days to process _______

3. Requests accorded expedited processing.

a. number of requests processed ___________

b. median number of days to process _______

B. Status of pending requests.

• Agencies using multiple tracks may provide numbers for each track, as well as totals.

1. Number of requests pending as of end of current fiscal year ________________

(Enter this number from Line V.A.4.)

2. Median number of days that such requests were pending as of that date ______________

VIII. Comparisons with Previous Year(s) (Optional)

• Agencies should state comparisons both in total numbers and in percentage of change.

• Note that the agency's annual report for 1997 covers a partial calendar year.

A. Comparison of numbers of requests received ________________

B. Comparison of numbers of requests processed ________________

C. Comparison of median numbers of days requests were pending as of end of fiscal year ___________

D. Other statistics significant to agency ___________

E. Other narrative statements describing agency efforts to improve timeliness of FOIA performance and to make records available to the public (e.g., backlog-reduction efforts; specification of average number of hours per processed request; training activities; public availability of new categories of records) ________________

IX. Costs/FOIA Staffing

• Both large and small agencies should provide information in the format presented below.

• Agencies may additionally use chart format for breakdown by multiple agency components.

A. Staffing levels.

1. Number of full-time FOIA personnel ________

2. Number of personnel with part-time or occasional FOIA duties (in total work-years) ________________

3. Total number of personnel (in work-years) ________________

B. Total costs (including staff and all resources).

1. FOIA processing (including appeals) ________

2. Litigation-related activities (estimated) _______

3. Total costs ________________

4. Comparison with previous year(s) (including percentage of change) (optional) ___________

C. Statement of additional resources needed for FOIA compliance (optional) _______________

X. Fees

• This includes charges for search, review, document duplication, and any other direct costs permitted under agency regulations.

A. Total amount of fees collected by agency for processing requests ________________

B. Percentage of total costs ________________

XI. FOIA Regulations (Including Fee Schedule)

• Agencies should provide electronic link for availability in electronic form and attach copy in paper form.


ANNUAL REPORT SUBMISSION PROCEDURE

Agencies should prepare their annual FOIA reports in this format beginning with their annual reports covering the period October 1, 1997 to September 30, 1998. Congress changed the annual reporting period from a calendar year to a fiscal year as of fiscal year 1998 -- which leaves a nine-month reporting period for calendar year 1997 reports to Congress under the old timetable and reporting requirements. See FOIA Update, Winter 1997, at 6 (advising that new reporting requirements and timetable apply to neither 1996 nor 1997 annual reports).

Under the Electronic FOIA amendments, agencies are given four months to prepare their annual reports after the conclusion of each fiscal year. The amendments provide that by February 1 of each year (beginning February 1, 1999), each agency must complete its annual FOIA report and submit it to the Department of Justice. See 5 U.S.C. § 552(e)(1). The Department of Justice, in turn, will make all annual reports available "at a single electronic access point" and notify Congress that this is done. 5 U.S.C. § 552(e)(3). The statute strongly compels all agencies to make their annual reports available to the public electronically, through placement on their own World Wide Web sites. See 5 U.S.C. § 552(e)(2);see also H.R. Rep. No. 104-795, at 28 (1996).

To facilitate this process, each agency should simply send a copy of its annual report to the Office of Information and Privacy by no later than February 1 of each year, with an indication of its location on the World Wide Web. (Any agency unable to do so should contact OIP in advance.) The Department of Justice will establish and maintain a World Wide Web site devoted to the compilation of all annual FOIA reports as of February 1999.

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