Under the Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, all federal departments and 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, in accordance with guidelines issued by the Department of Justice. See 5 U.S.C. § 552(e) (2000 & Supp. IV 2004); FOIA Update, Vol. XVIII, No. 3, at 3-7 ("Guidelines for Agency Preparation and Submission of Annual FOIA Reports") (establishing uniform template for such reports); FOIA Post, "Supplemental Guidance on Annual FOIA Reports" (posted 8/13/01).
On December 14, 2005, the President issued Executive Order 13,392, entitled "Improving Agency Disclosure of Information," which contains several statements of FOIA policy and specific new planning and reporting requirements that affect all federal agencies in their administration of the Act. Under the FOIA, the Attorney General is authorized to establish additional annual report guidelines that the Attorney General "determines may be useful." See 5 U.S.C. § 552(e)(4). Accordingly, in order to meet the requirements of the Executive Order, all agencies were required to include a new "Section XII" in their 2006 annual FOIA reports. The Department of Justice issued guidelines and a standard format to be used for this purpose. See FOIA Post, "Executive Order 13,392 Implementation Guidance" (posted 4/27/06).
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 is now resuming that practice starting 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 other federal agencies for Fiscal Year 2006.
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 2006 was 21,412,571. This is 1,461,888 more than the number of requests received during Fiscal Year 2005, an increase of nearly 7%. This increase is primarily attributable to a large increase in the number of requests received at the Social Security Administration.1 Several other federal departments also received greater numbers of requests, particularly the Department of Agriculture, the Department of Defense, the Department of Health and Human Services, the Department of Justice, and the Department of Veterans Affairs.
Of all federal departments, the Department of Veterans Affairs reported the largest number of requests, 1,938,206, a figure that includes first-party access requests by recipients of VA services. This was a 1% increase over the previous year. Among the other cabinet-level agencies, the Department of Health and Human Services received the second-highest number of requests, 258,152, and the Department of Homeland Security's total was third highest at 137,871.
Among the agencies, and indeed far surpassing all the federal departments as well, the Social Security Administration topped the list with 18,691,031 requests, 1,433,145 more than it received the preceding fiscal year, reflecting an increase of 8%. Among the other agencies, the Equal Employment Opportunity Commission received the next highest number of requests at 16,875. The Office of Personnel Management was third highest at 12,528 requests and the Environmental Protection Agency was fourth at 11,667 requests.
Eight federal departments, including the Department of Homeland Security and the Department of the Treasury, reported receiving fewer requests in Fiscal Year 2006 than in Fiscal Year 2005. The federal departments reporting the fewest numbers of requests during Fiscal Year 2006 were the Department of Education with 1858 requests, and the Department of Commerce with 2018 requests.
Of the other federal agencies, fifty agencies received fewer requests in Fiscal Year 2006. The agencies with the fewest requests were the Farm Credit System Insurance Corporation, the InterAmerican Foundation, and the National Capital Planning Commission, all three of which received five FOIA requests. The Defense Nuclear Facilities Safety Board received six requests; the Postal Regulatory Commission received seven requests; and the Millenium Challenge Corporation received nine requests.
In 2006, pursuant to Executive Order 13,392, federal agencies made a concerted effort to reduce their FOIA request backlogs (i.e., requests pending beyond the statutory time period). Agency backlogs of requests pending beyond the statutory time period have long been a concern, and the Executive Order directs agencies to address this problem. Not all agencies have FOIA request backlogs, but for those that do, the Executive Order calls 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 the new Section XII, many agencies provide a narrative describing their efforts and successes in reducing their backlogs. Second, Section V of the annual reports set forth the number of requests "pending" at the end of each fiscal year. Not all "pending" requests have necessarily been pending beyond the statutory time period to respond; therefore, the number of "pending" requests does not equal the number of requests properly counted as "backlogged."
Overall, the total number of requests pending at federal departments and agencies as of the end of Fiscal Year 2006 was 247,867, which is approximately a 13% increase over the previous year. As of the end of Fiscal Year 2005, this number had been 220,097. This overall increase is attributable to increases at only roughly a third of the agencies. Specifically, thirty-two out of ninety-two agencies reported an increase in the number of pending requests as of the end of Fiscal Year 2006. Of those thirty-two agencies, sixteen experienced an increase in the number of incoming requests.
By contrast, by the end of Fiscal Year 2006, a total of forty-one departments and agencies reported a decrease in the number of pending requests. Five of the fifteen federal departments reported a decrease. The five departments are the Department of the Treasury, the Department of Justice, the Department of the Interior, the Department of Energy, and the Department of Education. In addition, thirty-six federal agencies reported decreases in their pending requests as well. The Office of Personnel Management, the Environmental Protection Agency, the Social Security Administration, the Agency for International Development, the Pension Benefit Guaranty Corporation, and the Federal Trade Commission reported the biggest percentage reductions.
Fifteen federal agencies had no access requests pending as of the beginning of the fiscal year and also processed all incoming requests during the year, thereby maintaining a zero balance as of the end of the year. Of these, the agencies that processed the greatest numbers of requests were the Occupational Safety and Health Review Commission (70), the National Endowment for the Arts (62), the Corporation for National Service (42), the Commission on Civil Rights (39), and the United States Copyright Office (39).
Disposition of Requests
The total number of access requests processed by all federal agencies during Fiscal Year 2006 was 21,384,435 -- another record number by far -- exceeding the number of requests processed during the preceding fiscal year by 1,475,864. 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 all other federal 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." These reasons include such categories as "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." Nearly sixty-three of all departments and agencies cited "no records" as the most-often-used "other reason" for nondisclosure.
Use of Exemptions
The exemption cited most often was Exemption 6, in order to protect matters of personal privacy. Please note that this statistical count reflects a complete breakdown of all individually distinct exemptions and accordingly treats each subsection of Exemption 7 as a separate exemption. If Exemption 7's subparts were taken together, the total would be far greater than that of Exemption 6.
Additionally, under Exemption 3 of the Act, agencies withheld information pursuant to a total of 149 different nondisclosure statutes (nine more than during the preceding fiscal year), all of which were required to be specified individually by agencies in their annual reports.
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 3278 appeals during Fiscal Year 2006. Among cabinet-level agencies, the Department of Homeland Security received the second highest number of appeals totaling 1346, and the Department of Defense received the third highest number of appeals totaling 1010.
Among all other agencies, the Securities and Exchange Commission topped the list with 420 administrative appeals, followed by the Equal Employment Opportunity Commission with 321, and the Central Intelligence Agency with 166. On the other hand, twenty-six agencies reported no administrative appeals in Fiscal Year 2006, and an additional twenty-three agencies reported receiving five or fewer appeals during the year. This means that more than half of all agencies subject to the FOIA received no more than five administrative appeals of FOIA denials during Fiscal Year 2006.
Median Number of Days to Process Requests
Expressed in agencywide median numbers, three departments reported that they processed relatively simple requests in twenty or fewer working days. Most departments, such as the Department of Justice and the Department of Health and Human Services, did not report a single, agencywide median of the number of days taken to process requests. These departments are divided into components or subagencies, each of which handles its own FOIA processing on a decentralized basis and thus reports its FOIA statistics accordingly. Accord FOIA Post, "FOIA Counselor Q&A: Annual FOIA Reports" (posted 12/19/03) (advising that "[d]ecentralized agencies certainly can best report their annual FOIA statistics on a component-by-component basis, presenting them comprehensively in a chart format"). Overall, for the forty-four agencies reporting on the median number of days to process simple requests, thirty-two did so in twenty days or less.
With respect to the median number of days that requests were pending as of the end of the fiscal year among cabinet-level agencies, the Department of Commerce reported the lowest number at twenty-six days. The highest number was reported by the Department of State, which reported 193 as the median number of days that requests were pending as of the end of Fiscal Year 2006. Of the other agencies, twenty-two reported twenty or fewer days for requests pending as of the end of the fiscal year. Only nineteen federal agencies reported that the median number of days that requests were pending as of the end of the year was greater than fifty.
During Fiscal Year 2006, departments and agencies reported receiving 34,287 requests for expedited processing and granting 24,886 of those requests. The Department of Veterans Affairs reported the highest number of such grants by a wide margin. The next highest numbers of such requests were received by the Department of Defense, the Department of Homeland Security, and the Department of Justice.
A total of 5,509.21 employee work-years were devoted to the administration of the FOIA throughout the federal government during Fiscal Year 2006, an increase of 606.77 work-years, or approximately 12%, from Fiscal Year 2005.
Among cabinet-level agencies, the Department of Homeland Security reported the greatest number of employee work-years at 1,030.90. The Department of Defense reported the second-highest number at 824.17, and the Department of Veterans Affairs was third highest at more than 700. The department with the smallest number of FOIA employees (expressed in aggregate work-years) was the Department of Commerce with 19.25, followed by the Department of Education with 27, and the Department of Housing and Urban Development with 41.
Among the federal agencies, fifty-two reported having the equivalent of five or fewer FOIA employees during the fiscal year. On the other hand, among the noncabinet agencies with the largest numbers of FOIA employees were the Social Security Administration with 404, the Environmental Protection Agency with 277.07, the Central Intelligence Agency with 74.50, the Equal Employment Opportunity Commission with 45.65, and the Securities and Exchange Commission with 39.90.
In Fiscal Year 2006, the total cost of all FOIA-related activities for all federal departments and agencies, as reported in their annual FOIA reports, was approximately $398,500,000. This figure marks an increase of 14% over the preceding fiscal year. Nearly twenty million dollars of these costs were reported as spent on litigation-related activities. Of total agency costs, $15,527,856.71 (or 4%) was reported to have been recouped by the government -- albeit generally not retained by individual federal agencies -- through the collection of FOIA fees.
The federal department with the highest total costs was the Department of Defense, which spent more than sixty-six million dollars on FOIA-related activities during Fiscal Year 2006. The Department of Justice and the Department of Veterans Affairs were the departments reporting the second and third highest costs, of more than fifty million and forty-seven million dollars, respectively. The federal department that reported spending the least amount of money on the FOIA was the Department of Commerce which spent slightly more than two million dollars. Also at the lower end of reported FOIA costs for federal departments were the Department of Education and the Department of Housing and Urban Development, each of which spent less than three million dollars.
Among other federal agencies, sixteen reported spending more than one million dollars on FOIA matters during the fiscal year. The Social Security Administration led this list, reporting the expenditure of more than twenty-nine million dollars during the course of the year. Other federal agencies reporting expenditures of over one million dollars on FOIA matters include the following: the Office of Personnel Management at over twenty million dollars; the Environmental Protection Agency at over fourteen million dollars; and the Federal Reserve System and the Central Intelligence Agency both at over ten million dollars. At the other end of the spectrum, seventeen agencies reported total FOIA costs of $25,000 or less during the year.
Comparisons with Previous Years
The Department of Justice's standard format for annual FOIA reports includes a section (Section VIII) entitled, "Comparisons with Previous Year(s)." In the past, agencies used this section to provide additional information about their administration of the Act that was of particular significance to them, including additional statistics where applicable. In light of Executive Order 13,392 and the new Section XII (discussed below), many departments and agencies either cross-referenced to Section XII or included only limited information in their Section VIII discussion. Generally, the information provided was limited to comparisons of the number of FOIA requests received and the number of requests processed between Fiscal Years 2006 and 2005.
Under this report heading, five federal departments and fifteen other federal agencies drew attention to significant increases in the number of FOIA requests received in Fiscal Year 2006 as compared to Fiscal Year 2005. By contrast, five federal departments and twenty-nine other agencies reported receiving fewer requests in 2006 than in 2005.
As noted, 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 agencies were required to include a new "Section XII" in their 2006 annual FOIA reports. This new section, entitled "Report on Executive Order 13,392 Implementation," requires descriptions of agencies' progress in implementing the milestones and goals of their FOIA Improvement Plans. The reporting period for Section XII differs from that used for the rest of the annual report. The reporting period for Section XII includes progress made by agencies through January 2007, whereas the remainder of the annual report covers Fiscal Year 2006.
All of the FOIA Improvement Plans are agency-specific. Furthermore, agencies have differing goals and milestones. Still, backlog reduction was the most significant issue addressed by the majority of agencies.
In their Section XII discussions, agencies also described their efforts in a wide variety of other 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
The progress made by agencies in this first reporting period under the Executive Order has been steady and meaningful. Further analysis of agency progress in implementing their FOIA Improvement Plans can be found in the Attorney General's June 2007 report to the President. See http://www.usdoj.gov/oip/ag_report_to_president06012007.pdf (posted 9/14/2007)
1. Starting in 2005, the Social Security Administration (SSA), changed how it designates and records certain first-party access requests. For Fiscal Year 2006, SSA reported 18,691,031 requests, dwarfing those for all other agencies combined, which together total 2,721,540 requests.
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