As the federal government comes to grips with ever-increasing budget deficits and constraints on government spending, federal agencies face growing economic pressures in their administration of the Freedom of Information Act.
The basic problems involved in applying limited agency resources to meet the FOIA's potentially limitless demands are certainly not new to the FOIA picture. Since the FOIA was first enacted more than two decades ago, and especially since the time of its amendment in 1974, federal agencies both large and small have often struggled to achieve compliance with its requirements. Over the years, agencies have learned that a sustained substantial commitment of both resources and expertise is essential to the Act's implementation.
Complicating the picture, though, is the fact that FOIA administration, as a component of agency activities, is not a separate "line item" category in the legislative appropriations for most federal agencies. Instead, agency FOIA operations most commonly are funded as part of an overall category of general administrative activities, aggregated together for budgetary purposes. In such a situation, FOIA operations necessarily compete with other administrative activities for the allocation of resources within an agency's budgetary processes, both internally and in the governmentwide reviews conducted by the Office of Management and Budget.
Additionally, because the demands placed upon federal agencies under the FOIA can fluctuate considerably from one year to the next, and can be somewhat difficult to predict, the process of budgeting resources for FOIA purposes can result in unexpected shortfalls under even relatively ordinary circumstances. Where an agency experiences significant increases in FOIA activity, its FOIA operations can quickly become backlogged due to that alone.
In recent years, as concerns about federal spending have become more and more acute and have led to Gramm-Rudman-Hollings budgetary limitations and even to funding sequestration, the competition for resources both within and among federal agencies has become increasingly intense. Agency FOIA operations can be affected by such unprecedented funding pressures, either directly or indirectly, especially where the demands of FOIA processing are already heavy.
Illustrative of the strong such pressures facing many federal agencies today is the case of the Federal Bureau of Investigation, which recently addressed this subject in congressional testimony as part of the annual appropriations and authorization process in the House of Representatives.
This year, for the first time since the mid-1970's, the House subcommittee with authorization jurisdiction over the FBI, the Judiciary Committee's Subcommittee on Civil and Constitutional Rights, devoted one of its annual authorization hearings to the FBI's FOIA operations. It heard testimony from individual and organizational FOIA requesters about the FBI's difficulties with large backlogs of FOIA requests.
At this March 1st authorization hearing, the head of the FBI's Freedom of Information and Privacy Acts Section, Emil P. Moschella, presented a clear picture of the FBI's FOIA operations. He spoke of the exceptional difficulties inherent in processing sensitive law enforcement records for possible disclosure under the Act, but he also stressed that the FBI had experienced nothing less than a 37 percent increase in its FOIA workload over the past four years without the ability to increase its resources commensurately.
"In terms of dollars," Moschella said, "the FBI spent $14,593,762" on its FOIA operations last year, an 18 percent increase over that same four-year period. That expenditure, he calculated, "represented about 1 percent of the FBI's overall budget" for 1989. Even with that, and despite several management improvements that had already enhanced the FBI's processing efficiency, its backlog of pending FOIA requests significantly increased -- as the FBI had been unable to keep pace with increasing numbers of incoming requests, let alone meet the processing time limits specified in the Act.
"To comply with the ten-day rule, or even to approach compliance," Moschella pointed out," would require a massive diversion of additional resources from the FBI's other programs."
The FBI's FOIA situation, while perhaps an atypically severe example, illustrates the basic dilemma facing federal agencies as they work to comply with the Act. To be sure, many agencies -- particularly the smaller ones -- are able to meet the Act's time deadlines with enviable regularity. But that often seems not to be possible where FOIA workloads are increasingly high and resources are stretched quite thin. In such situations, agencies can find it extremely difficult to budget the resources sufficient to prevent any backlogging of FOIA requests.
FOIA backlogs can quickly become a source of great frustration for both FOIA officers and FOIA requesters alike. "We're doing the best we can with what we have," is the reaction most commonly expressed by FOIA personnel across the government.
Yet FOIA requesters clearly expect more than they find themselves receiving from backlogged FOIA offices -- with respect to the timing of agency responses, if nothing else -- and they are entitled to the best public service that can be made available.
So as the entire federal government continues to grapple with harsh fiscal realities, it becomes increasingly important to both FOIA offices and FOIA requesters that agency resources be maximized in support of the Act. Agencies are expected by all concerned to see to it that they are devoting as much of their overall resources to their FOIA operations as is reasonably possible under all circumstances. And, for their parts, FOIA officers throughout the government are redoubling their efforts to provide the maximum delivery of FOIA services possible through efficient use of all resources available.
The four center pages of this issue of FOIA Update contain an updated list of the principal FOIA legal and administrative contacts at federal agencies.
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