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Supplemental Guidance on Annual FOIA Reports


The Electronic Freedom of Information Act Amendments of 1996 (E-FOIA), Pub. L. No. 104-231, greatly revised the requirements for the annual reports of Freedom of Information Act activity that all federal departments and agencies must prepare. The relevant provisions, codified in subsection (e) of the Act, 5 U.S.C. § 552(e) (2000), modified the content, timetable, and submission procedures for these agency reports -- which are now prepared on a fiscal-year basis and are made available to the public both through individual agency FOIA Web sites and (on a centralized basis) through the Department of Justice's FOIA Web site. See 5 U.S.C. § 552(e)(1)-(5). These provisions took effect as of Fiscal Year 1998.

In accordance with new subsection (e)(4) of the FOIA, 5 U.S.C. § 552(e)(4), the Department of Justice in 1997 issued formal "Guidelines for Agency Preparation and Submission of Annual FOIA Reports," which among other things established an annual report template for uniform agency reporting purposes. See FOIA Update, Vol. XVIII, No. 3, at 3-7. Additional annual FOIA report guidance on the use of "working days" for statistical purposes, the categorization of unperfected FOIA requests, and the logistics of the annual report submission process was issued in 1998. See FOIA Update, Vol. XIX, No. 3, at 2; see also id. at 4 (advising on details of proper electronic availability of annual FOIA reports through individual agency Web sites).

During 2000-2001, the General Accounting Office (GAO), acting at the request of both Houses of Congress in the wake of an E-FOIA implementation oversight hearing that was held in June of 2000, conducted a detailed study of agency E-FOIA implementation activities. See FOIA Post, "Agencies Continue E-FOIA Implementation" (posted 3/14/01). For purposes of this study, GAO examined agencies' annual FOIA reports for fiscal year 1999, the second year for which these reports were prepared in revised form. GAO's report of this study, entitled "Progress in Implementing the 1996 Electronic Freedom of Information Act Amendments" (Mar. 16, 2001), found certain "reporting inconsistencies and data quality problems" with some of the annual reports that it examined. Id. at 32; see also id. at 33-34. GAO therefore recommended that the Department of Justice issue supplemental annual FOIA report guidance addressing the points of concern that GAO identified in its report. See id. at 41; accord 5 U.S.C. § 552(e)(4) (specifying that Department of Justice "may establish additional requirements for [annual FOIA] reports as . . . may be useful"). Additional such points of concern have been identified through the Department of Justice's own reviews.

Accordingly, the Department of Justice has prepared the following supplemental guidance on a variety of points for use by all federal agencies in the preparation and submission of their annual FOIA reports as of this year. Additionally, through the Office of Information and Privacy, the Department of Justice has been examining with increasing scrutiny the contents of all agencies' annual reports as they are submitted to it for centralized access on its FOIA Web site and has been contacting agencies to discuss and resolve any question or discrepancy identified. See FOIA Post, "GAO E-FOIA Implementation Report Issued" (posted 3/23/01). This process of review will continue within an even broader framework of scrutiny in accordance with the points of supplemental guidance that are set forth below.

Guidance Points

• First, all agencies should be mindful that when it revised the FOIA's annual reporting requirements, Congress expressed the expectation that the new form of annual FOIA reports would permit someone to compare an agency's FOIA performance from one fiscal year to the next and also to compare one agency to another. See H.R. Rep. No. 104-795, at 27-29 (1996) (House report detailing intended implementation of annual report provisions). To this end, Congress sought the development and proliferation of a standard format that could be used by all agencies for their annual FOIA reports. See id. at 29 (specifying that all agencies should "follow a similar format"). It is just such a standard format that was developed in 1997, in template form, for use by all agencies. (This report template can be found in electronic form at To ensure the intended uniformity, all federal agencies, both large and small, should use this standard format.

• Further, all agencies should use the entire standardized form, rather than create an abbreviated version of it. This applies most particularly to smaller agencies, which tend to receive relatively few access requests or access requests for records of only a particular type. All agencies should simply enter "0" or "n/a" as applicable in any field for which they have no data to report, regardless of how many such fields there might be. This can be especially significant, for instance, with respect to the specification of exemptions. For example, some agencies might be inclined to omit an entry for "Exemption 1" in their reports because they rarely if ever have any occasion to deal with classified information. To an annual report reader who lacks this knowledge of the workings of such an agency, however, this might not be so clear. An affirmative indication by such an agency that it used Exemption 1 "0" times is a much clearer expression of its FOIA activity in that regard.

• Similarly, in making entries in the standard report format, agencies must be careful not to count an access request in a way that defeats the purpose of the tabulation that is being made. When an agency completes work on a request, it is counted as one "processed" or "disposed of" request. If such a request was partially granted and partially denied under Exemptions 2, 5, and 7(C), and also included some responsive records referred to another agency, for example, it still should be counted as a single request. On the annual report form, this request should be counted just once as a "partially granted" request (note that the phrases "partially granted" and "partially denied" effectively mean the same thing). Such a request should not also be counted under "referrals," or under "other reasons for nondisclosure," because each request should be represented just once in the mutually exclusive "total grants," "partial grants," "denials," and "other reasons for nondisclosure" categories of Section V of an agency's report. It is the predominant basis for a request's disposition that counts. And the total of the numbers in these four categories always should equal the total number of requests processed.

By contrast, however, such a request certainly should be counted multiple times in the tabulation of "exemptions used" that is made in Part B of Section V of the report. It would be counted once for Exemption 2, once for Exemption 5, and once for Exemption 7(C). Note that even if, for example, Exemption 5 were used multiple times for this one FOIA request, it still would be counted just once under Exemption 5. See FOIA Update, Vol. XVIII, No. 3, at 5 (annual report guidelines specifying that exemption entries should be made by "counting each exemption once per request"). Note also that because in this example an agency will have tallied three exemptions for one access request, the total number of times that all exemptions and other nondisclosure grounds were used will not be a meaningful number if compared to the number of requests processed during the fiscal year. This is because this tabulation is not intended to be used in that way. Rather, this portion of the report presents a picture of an agency's use of different FOIA exemptions and other nondisclosure grounds overall.

• Of course, the points in the above two paragraphs should not be confused with the process by which large agencies with decentralized FOIA operations take certain incoming access requests (i.e., ones made to a central agency location, rather than directly to designated agency components) and distribute those requests to appropriate agency components or subagencies for decentralized handling and independent disposition. See, e.g., 28 C.F.R. § 16.3(a) (2001) (describing decentralized system for handling FOIA requests within Department of Justice); see H.R. Rep. No. 104-795, at 29 (1996) (House report recognizing, for annual reporting purposes, that "some agencies [have] decentralized FOIA operations"); see also FOIA Update, Vol. XVIII, No. 1, at 6 (advising on use of different multitrack processing systems by different components of "decentralized" agencies); cf. FOIA Update, Vol. XVIII, No. 1, at 4 (describing effect of decentralization on compliance with agency "electronic reading room" responsibilities).

In such cases, a single incoming request can necessarily become multiple individual requests that are disposed of, and accordingly counted by, each individual agency component separately. To present their annual report data most effectively, such decentralized agencies should include individual component "breakdowns" of their data, which are best presented in chart form. See, e.g., Department of Justice Fiscal Year 2000 Annual FOIA Report (containing, for example, "Initial Requests" chart found at

• In turn, the point in the above paragraph should not be confused with the appropriate agency practice of treating access requests that deal with multiple subjects (e.g., multiple third-party files) as separate requests when necessary for their most expeditious handling. Agencies do so as a matter of longstanding practice, one that enhances administrative efficiency and routinely results in requesters obtaining disclosable records more promptly than otherwise would be the case. When requests are divided in this way, they become separate requests that of course are individually tabulated for annual reporting purposes.

• When counting the number of access requests that have been "received," agencies sometimes question the difference between a general request for information that somehow comes into an agency and a request that on its face is a request for access to records under the FOIA and/or the Privacy Act. This question most typically arises when individuals seek access to their medical or other first-party records (including where the individual is an agency employee or custodial detainee), but it also can arise when an agency receives a request for information other than through regular FOIA channels that is nevertheless routed to the agency's FOIA office for appropriate handling. Or it can arise when it is found that a certain type of information request can be best handled through some agency process other than the formal FOIA one. See, e.g., FOIA Update, Vol. XVI, No. 1, at 1-2 (promoting use of "alternative disclosure mechanisms" such as coordination with agency public affairs offices to satisfy information requests "without any need for them to ever become FOIA requests").

Simply put, a request should be considered a FOIA/PA request for annual reporting purposes (to be referred to simply as a "request" for all further purposes) if an agency FOIA officer determines that the request should be treated as a FOIA/PA request. This means, among other things, that the request will be logged in and assigned a FOIA/PA control number, that the requester will be entitled to a response within twenty working days, and that the requester will have appeal rights and the right to judicial review of any adverse determination made regarding any responsive information. Such requests, and only such requests, should be counted for purposes of annual FOIA reports, regardless of which access statute, if any, is cited. See, e.g., FOIA Update, Vol. VII, No. 1, at 6 (advising that it is "good policy for agencies to treat all first-party access requests as FOIA requests (as well as possibly Privacy Act requests), regardless of whether the FOIA is cited in a requester's letter").

• Agencies generally should devote more attention to Section IV of the annual report format, entitled "Exemption 3 Statutes." This report section is designed to meet each agency's special statutory obligation to provide additional information on its use of this particular FOIA exemption, which incorporates the nondisclosure provisions that are found in other statutes. See 5 U.S.C. § 552(e)(1)(B)(ii). In most instances, the clearest way to present this data is in chart form. An example can be found in the Department of Justice's annual FOIA report for fiscal year 2000 ( The first column in this chart lists all of the Exemption 3 statutes used during the fiscal year, in numerical order; the second is a brief description of the type of information withheld; and the third indicates whether a court has upheld the use of the statute, including a citation to a relevant court decision if the statute has been so upheld.

On this latter point, any agency that is uncertain as to whether a court has upheld the use of an Exemption 3 statute that the agency lists should make use of the Department of Justice's Freedom of Information Case List for this purpose. In Section IV of the Case List's Topical Index, entitled "Other U.S. Code Sections," which begins on page 514 of the most recent edition of that reference volume (found at, agencies can find a comprehensive list of all sections and subsections of the United States Code that have been cited in FOIA cases, together with a cross-reference to each case involved. This resource tool contains references to many statutes (and supporting cases) that have been listed without support in recent annual reports. Agencies should take greater care not to report that the Exemption 3 statutes used by them have never been upheld in a court case when in fact they have been upheld. They also should remember that there is no requirement that the court decision be one in which the particular agency filing the annual report was involved; all that matters is that the particular Exemption 3 statute was involved.

• In completing Part A of Section V of the annual report form, entitled "Numbers of Initial Requests," agencies should be mindful that the total of Lines 1 and 2, minus the number in Line 3, should equal the number in Line 4. This means that the number of requests pending at the beginning of the fiscal year, plus the number of requests received during the fiscal year, minus the number of requests processed during the fiscal year, should equal the number of requests pending as of the end of the fiscal year. Further, this latter figure should be the same as the one entered on Line 1 of Section VII, Part B, and it also should become the number of requests listed as "pending" as of the beginning of the next fiscal year for purposes of the agency's next annual FOIA report.

As for the number in Line 3, agencies should bear in mind that it comes into play in two other places in each annual report. This figure represents the number of requests processed during the fiscal year. As such, it also should equal the total of Lines 1, 2, 3, and 4 of Part B of Section V (entitled "Disposition of Initial Requests"). (Note that it is essential to enter a total number in Line 4 of Section V, Part B, as well as in Line 4 of Section VI, Part B, in order for the report to be properly completed.) In other words, this is the number of requests that were processed during the fiscal year, all of which were either granted in full, granted in part, denied in full, or else subject to some "other" (specified) reason for nondisclosure. The number in Line 3 also should match the total of the numbers that appear in Part A of Section VII of the report, under the heading "Median Processing Time." There, too, the number of requests processed must equal the sum of the numbers of requests processed in the simple, complex, and expedited tracks (even if one or more of those numbers is zero).

• In Section VII, Part A, which deals with median processing times, the annual report format necessarily divides all requests processed into simple requests, complex requests, and requests that are accorded expedited processing. (Note that it is essential that this part of the report address all of the requests that were processed by the agency during the fiscal year, i.e., the total number of requests specified in Line 3 of Section V, Part A, of the report.) If an agency does not use multitrack processing, of course, it will report numbers for only one basic track. All agencies, however, must report the number of requests that were accorded expedited processing. Even when that number is zero, this information is important to report, as it contributes to the aggregate picture of this FOIA activity governmentwide. In this connection, agencies should to the extent practicable also report the number of requests for expedited processing that are received each year, in relation to the number granted. To do so will give a clearer picture of activity under this provision of the Act; these numbers can be specified in Section VIII, Part D, of the standard report format.

• For Parts A and B of Section VII of the report, several of the entries are expressed in numbers of "days." Because most electronic tracking systems that are currently in use throughout the federal government now have the capability of compiling data in "working days," it is assumed that these reported numbers ordinarily will be "working days," as opposed to "calendar days." See FOIA Update, Vol. XIX, No. 3, at 2 (advising that using "working days" is preferable for this purpose, except where an agency cannot readily do so). If an agency does report in terms of calendar days, it should take pains to make it clear that it is doing so. This can be done by specifying "calendar days" after each such entry and also by adding a definition of "days" as "calendar days" to the "Definitions" section of the report.

• In completing Part A of Section IX of the report, regarding staffing levels related to FOIA/PA matters, agencies should be careful to pay full attention to Line 2 as well as Line 1. Line 1 simply asks for the number of full-time personnel who are involved in FOIA/PA matters full time. Line 2 asks for the number of agency personnel who have only part-time or occasional FOIA duties (even if merely sporadic), expressed in total numbers of work-years. For example, if a particular agency had four employees working full-time on FOIA matters and three employees with part-time FOIA responsibilities, it would simply specify "4" on Line 1.

To complete Line 2, however, that agency would have to determine, and then total, the individual work-year percentages for the three employees working on FOIA matters only part time. If the first employee devoted an estimated 10% of his time to the FOIA, the second employee 30% of her time, and the third employee 15% of her time, then that would total 55% of a work-year. So for Line 2, that agency would enter ".55 work-years." The agency's entry for Line 3 would be "4.55 work-years." All agencies should arrive at a figure for Line 3 by adding the number in Line 1 to the number (which could be zero) in Line 2.

• In filling out Part B of Section IX of the report, agencies are asked to provide three figures, based upon their best ability to calculate the costs of their FOIA activities. Line 1 seeks the total costs of FOIA-processing activities, including appeals. In completing it, agencies are asked to include the costs of their staffs "and all resources" that are devoted to these activities. FOIA Update, Vol. XVIII, No. 3, at 7. To arrive at a comprehensive figure for this, of course, agencies must do their best to estimate the costs of these resources -- which may include such items as photocopying, postage, data-processing services, and other items of overhead that are reasonably allocable to an agency's FOIA operations.

For Line 2 of Part B, agencies are likewise asked to provide estimates of the costs of their litigation-related FOIA activities. Id.; accord H.R. Rep. No. 104-795, at 29 (1996) (House report recognizing that in annual FOIA reports "reasonable estimates" sometimes must be used). Such estimates should take into account the full range of agency efforts that are undertaken in support of a FOIA litigation case, including attorney coordination with declarants, additional subject-matter experts, and other agency program personnel. Any reasonable estimate of such costs should serve the report's purpose of "permitting meaningful comparisons among agencies" in this regard. Id. at 28. Again, it is only by making its best estimates in both of these Part B categories that an agency can comply with its express statutory obligation to report "the total amount expended by the agency for processing [its] requests." 5 U.S.C. § 552(e)(1)(G).

• Although it is required that each annual FOIA report contain a copy of the agency's current FOIA regulations, see FOIA Update, Vol. XVIII, No. 3, at 7, agencies need not include paper copies of their FOIA regulations when they submit their annual reports to the Department of Justice. Rather, it is sufficient for an agency to provide the Department of Justice with the annual report's electronic address, or "URL," by specifying it as required in Section I of the report -- so long as the electronic version of the agency's annual report contains (in Section XI) an electronic link to its regulations. However, whenever a paper copy of an agency's annual FOIA report is provided to any other recipient, a paper copy of the regulations should be included there as well.

• Lastly, many agencies need to pay better attention to their obligation to complete their annual FOIA reports in a timely fashion each year. See 5 U.S.C. § 552(e)(1) (establishing February 1 deadline for each agency's completion of its report for preceding fiscal year); see also 5 U.S.C. § 552(e)(2)-(3) (establishing responsibility of each individual agency to make its annual FOIA report available to public electronically, and responsibility of Department of Justice to make all such reports available at single electronic access site by April 1 each year). These statutory deadlines should be universally respected. See H.R. Rep. No. 104-795, at 28 (1996) (noting that in amending FOIA's annual reporting provisions, Congress actually gave agencies "more time to prepare the reports" than under prior calendar-year schedule).

Additionally, the Office of Information and Privacy has been preparing aggregate compilations of agency statistics from all agencies' annual FOIA reports as of fiscal year 1999, but this process has been greatly delayed by the belated submission of many agency reports for both fiscal years 1999 and 2000. While agency compliance has greatly improved at OIP's urging, and has continued to improve most recently for Fiscal Year 2000, there still remains a need for further improvement overall. As part of its review of all agencies' annual FOIA reports, and its plans to prepare new governmentwide compilations regularly, OIP will be redoubling its efforts to encourage all agencies to comply with this obligation on time. All agencies, in turn, should be sure to take the administrative steps necessary to do so.

Once an annual FOIA report has been completed, the agency must either mail or fax a copy of it to the Department of Justice. See 5 U.S.C. § 552(e)(1) (requiring submission to Department of Justice, not Congress as in past). If an agency mails its annual report, it should send it to the following address: Office of Information and Privacy, United States Department of Justice, Flag Bldg., Suite 570, Washington, D.C. 20530. Alternatively, annual reports may be faxed to the attention of Pamela Maida of OIP, at (202) 514-1009. (It is not necessary for an agency to send its report to the Office of the Attorney General, or even to "cc" the Office of the Attorney General, because that office is not the appropriate recipient of such reports within the Department of Justice.) As noted above, the report's URL will be specified within the report itself, but agencies always should be sure to notify OIP if for any reason a relevant URL changes. See FOIA Update, Vol. XIX, No. 3, at 2 (specifically requesting such notification).

In addition to sending their annual FOIA reports to the Department of Justice, all agencies must make them available to the public electronically, through their own FOIA Web sites. See 5 U.S.C. § 552(e)(2); see also FOIA Update, Vol. XVIII, No. 3, at 7. Now, with annual FOIA reports prepared and made available in this way for multiple fiscal years, it is particularly important that each report on a FOIA Web site be clearly labeled to indicate the year for which it was prepared. See FOIA Update, Vol. XIX, No. 3, at 4 (suggesting that agencies also include annual reports for some years prior to Fiscal Year 1998, i.e., reports prepared on a calendar-year basis, so long as they are clearly labeled as such). As new reports are prepared, they should be added to (i.e., not replace) the agency's prior reports. See id. The Department of Justice recommends that annual FOIA reports be maintained on agency FOIA Web sites for a period of at least seven years. Accord National Archives & Records Admin., General Records Schedule, Schedule 14 (1998) (suggesting that such records not be disposed of at earlier time); cf. FOIA Update, Vol. XVIII, No. 1, at 4 (addressing duration of FOIA Web site postings under "reading room" provisions of Electronic FOIA Amendments).


In conclusion, all agencies should apply these points of additional guidance, together with the guidance previously issued, in the preparation of their future annual FOIA reports. They should do so with full awareness of their statutory responsibilities under subsection (e) of the Act, 5 U.S.C. § 552(e), and further awareness of GAO's attention to this particular of aspect of agency activity in implementation of the Electronic Freedom of Information Act Amendments. See FOIA Post, "GAO E-FOIA Implementation Report Issued" (posted 3/23/01) (noting that this subject "can be expected to be the subject of continuing congressional interest"). Any agency needing further guidance in meeting its annual FOIA report obligations may obtain assistance from the Department of Justice's Office of Information and Privacy by contacting Pamela Maida, at (202) 514-5105.   (posted 8/13/01)

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