FOIA Post (2002): Summary of Annual FOIA Reports for Fiscal Year 2001

Summary of Annual FOIA Reports for Fiscal Year 2001

Under the provisions of the Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, all federal departments and agencies must prepare more detailed annual reports of their FOIA activities, on a fiscal-year basis, than were prepared in previous years. See 5 U.S.C. § 552(e) (2000). The Department of Justice has issued formal guidelines and a standard format to be used for this purpose, see FOIA Update, Vol. XVIII, No. 3, at 3-7 ("Guidelines for Agency Preparation and Submission of Annual FOIA Reports"), and it has issued supplemental guidance to facilitate this annual reporting process as well, see FOIA Post, "Supplemental Guidance on Annual FOIA Reports" (posted 8/13/01). As is indicated in that supplemental guidance, the Office of Information and Privacy now compiles governmentwide summaries of the information contained in annual FOIA reports, which is possible only after all agencies have completed their reports for each fiscal year. See id.

The following is a summary compilation of information contained in the annual FOIA reports that were prepared by the fourteen federal departments and seventy-two other federal agencies for Fiscal Year 2001:

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 2001 was 2,246,212, making it the second time that the two-million-request level has been exceeded. This is 11,011 more than the number of requests received during Fiscal Year 2000.

Of all federal departments, the Department of Veterans Affairs reported the largest number of requests received, 1,352,786, which includes first-party access requests made by recipients of VA services. Among the other cabinet-level agencies, the Department of Justice received the second-highest number of requests, 196,917, and the Department of Agriculture's total was third highest, at 83,617. This is the second time in recent years that the Department of Agriculture, rather than the Department of Defense, has received the third-highest number of requests. In Fiscal Year 2001, the Department of Defense's total was fourth highest, at 81,682.

Among all other agencies, the Social Security Administration topped the list with 263,756 requests received, remaining at the very high level that it reached in the preceding fiscal year (262,450). In fact, the number of requests received by the Social Security Administration nearly quintupled over a four-year period -- beginning from a level of 55,886 in Fiscal Year 1998. The Social Security Administration attributes this dramatic increase to the popularity of Social Security documents in general and, in particular, to the recent popularity of access provided through its Form SS-5 ("Application for Social Security Number") among genealogists.

The federal departments reporting the fewest requests received during Fiscal Year 2001 were the Department of Education, with 1547 requests, and the Department of Commerce, with 2183 requests. Among other agencies, those with the fewest requests were the Emergency Loan Guarantee Board, a temporary federal agency, which received one request; the Oklahoma City National Memorial, a relatively new federal agency, which received two requests; and the Office of the National Counterintelligence Executive, which reported receiving only three requests.

Backlog Reduction

Within recent years, agencies have been making efforts to reduce their backlogs of FOIA requests, and those efforts can be reflected in their individual annual FOIA reports. Overall, the total number of requests pending at federal departments and agencies as of the end of Fiscal Year 2001 was 177,969, which is a 5% increase over the previous year. As of the end of Fiscal Year 2000, the number had been 169,180.

Departments reporting a decrease in their backlogs from Fiscal Year 2000 to Fiscal Year 2001 were the Department of Commerce, the Department of Education, the Department of Health and Human Services, and the Department of Transportation. These percentage reductions ranged from one-half percent to 18.5%. Twenty-nine other federal agencies reported decreases in their backlogs as well. The Council on Environmental Quality, the Court Services and Offender Supervision Agency, the Federal Labor Relations Authority, the Federal Maritime Commission, and the Pension Benefit Guaranty Corporation reported the most significant percentage reductions.

Twelve federal agencies had no access requests pending as of the beginning of the fiscal year, then processed all incoming requests during the year, and thereby maintained that zero balance as of the end of the year. Of these, the agencies that processed the greatest numbers of requests were the Merit Systems Protection Board (391), the Federal Communications Commission (346), the Occupational Safety and Health Review Commission (89), the National Mediation Board (74), and the Surface Transportation Board (39).

Disposition of Requests

For ten of the fourteen federal departments, the number of "total grants" of their access requests was more than half of the number of requests processed. The only departments for which this was not the case were the Department of Justice, the Department of Labor, the Department of State, and the Department of the Treasury -- which may be seen as a reflection of the sensitivity of the information requested from these departments. Among all other federal agencies, twenty-two had "total grants" for more than half of their requests processed, and forty-eight had fewer. In sum, the total number of access requests processed by all federal agencies during Fiscal Year 2001 was 2,236,796 -- which exceeded the number of requests processed during the preceding fiscal year by 22,394, or more than one percent.

Agencies may withhold information under one or more of the FOIA's nine exemptions or they may respond to requests by citing "other reasons for nondisclosure." Such 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 75% of all departments and agencies cited "no records" as the most-often-used such reason for nondisclosure.

Use of Exemptions

The exemption used most often was Exemption 6, in order to protect matters of personal privacy. This statistical count, though, includes 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 added 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 140 different nondisclosure statutes (eight more than during the preceding fiscal year), all of which were required to be specified by agencies in their annual reports.

Appeals of Initial Denials of Requests

The Department of Justice was the recipient of the largest number of appeals of initial denials of access requests: It received 4056 administrative appeals during Fiscal Year 2001. Among cabinet-level agencies, the Department of the Treasury received the second-highest number of appeals, with 1307, and the Department of Defense received the third-highest, with 823.

Among all other agencies, the Equal Employment Opportunity Commission topped the list with 426 administrative appeals, followed by the Central Intelligence Agency, with 252, the United States Postal Service, with 175, and the Social Security Administration, with 165. On the other hand, no fewer than sixteen agencies reported that they did not receive any administrative appeals in Fiscal Year 2001, and an additional twenty-two agencies reported receiving five or fewer appeals during the year.

Median Number of Days to Process Requests

Four departments reported that they processed simple requests in twenty or fewer working days, expressed in agencywide median numbers. One department processed complex requests in thirty or fewer days. Some departments, such as the Department of Justice, the Department of Health and Human Services, and the Department of the Treasury, 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. Overall, only 12% of agencies that used single-track processing reported that their median processing time was greater than twenty days. Of the agencies that used multitrack processing, all but six reported a median processing time for complex requests of thirty days or more.

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 Education reported the lowest number, at twenty-two days. The highest number was the Department of Energy's, which reported that the median number of days that requests were pending at that department during fiscal year 2001 was 2009. Only sixteen federal agencies reported that the median number of days that their requests were pending as of the end of the year was greater than fifty.

Agency action on requests for expedited processing also was included in the annual reports. In total, departments and agencies reported granting requests for expedited processing more than 50,000 times, with the Department of Veterans Affairs reporting the highest number of such grants by a very wide margin. The next highest numbers of such grants were reported by the Department of Labor, the Department of Defense, the Department of Justice, and the Equal Employment Opportunity Commission. (See also FOIA Post, "Supplemental Guidance on Annual FOIA Reports" (posted 8/13/01) (specifying that in addition to reporting the numbers of requests for expedited processing that were granted during the year, as required by the statute, agencies for future fiscal years "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"). Accordingly, such statistics should be reported and available for compilation for the next fiscal year.)

Staffing Levels

A total of 4924.715 employee work-years were devoted to the administration of the FOIA throughout the federal government during Fiscal Year 2001, a decrease of approximately 455 work-years from Fiscal Year 2000. Among cabinet-level agencies, the Department of Justice reported the greatest number of FOIA work-years, at 1055.98. The Department of Defense reported the second-highest number, at 870.77, and the Department of Veterans Affairs was third highest, at nearly 800. The department with the smallest number of FOIA employees (expressed in aggregate work-years) was the Department of Education, with 8.4, followed by the Department of Commerce, with 27, and the Department of Housing and Urban Development, with 39.8.

Among all 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 Environmental Protection Agency, with 191.52, the Social Security Administration, with 147, the Central Intelligence Agency, with 74.8, the National Archives & Records Administration, with 46.7, the Equal Employment Opportunity Commission, with 42.93, and the Small Business Administration, with 33.5.

Costs

In Fiscal Year 2001, the total cost of all FOIA-related activities for all federal departments and agencies, as reported in their annual FOIA reports, was $287,792,041.08, which is the second time that this reported figure has exceeded the quarter-billion-dollar level. Less than ten million dollars of these costs were reported as spent on litigation-related activities. Of total agency costs, only the amount of $7,756,379.22 (or 2.7%) was reported to have been recouped by the government (albeit not retained by individual federal agencies) through the collection of FOIA fees.

The federal department with the highest total costs was the Department of Justice, which reported spending more than seventy-four million dollars on FOIA-related activities during Fiscal Year 2001. Second was the Department of Defense, at more than thirty-nine million dollars, and in third place was the Department of Veterans Affairs, at more than twenty-nine million dollars. The federal department that reported spending the least amount of money on the FOIA was the Department of Education, at just under $400,000. Also at the lower end of reported FOIA costs for federal departments were the Department of Housing and Urban Department, the Department of Commerce, and the Department of Energy, each of which spent less than four million dollars.

Among other federal agencies, twelve 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 $14.6 million during the year. Among the others were the Environmental Protection Agency, at $12.2 million, the CIA, at $8.8 million, the Securities and Exchange Commission, at $2,453,654, the National Archives and Records Administration, at $1,924,522, and the Equal Employment Opportunity Commission, at $1,802,423. On the other hand, sixteen 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)." 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. Accord FOIA Post, "Supplemental Guidance on Annual FOIA Reports" (posted 8/13/01) (advising agencies that such statistics "can be specified in Section VIII, Part D, of the standard report format").

Many departments and agencies that provided information in this category stated that they had reduced the number of incoming FOIA requests by posting information of public interest on their FOIA Web sites. For example, the National Endowment for the Arts reported that largely due to information that it made available on its FOIA Web site, its volume of FOIA requests decreased from a high of 697 in Fiscal Year 1995 to only eighty-four in Fiscal Year 2001. Likewise, agencies such as the Pension Benefit Guaranty Corporation, the Corporation for National Service, Federal Open Market Committee, and the Tennessee Valley Authority reported achieving such results as well. In this regard, many agencies mentioned putting in their electronic reading rooms records that have been frequently requested under the FOIA, as required by the 1996 Electronic FOIA Amendments. See 5 U.S.C. § 552(a)(2)(A)-(D).

Additionally, under this report heading, three federal departments and seventeen other federal agencies drew attention to significant increases in the numbers of FOIA requests that they received in Fiscal Year 2001 as compared to fiscal year 2000. By contrast, four federal departments and eleven other agencies reported in Section VIII receiving fewer requests in 2001 than in 2000. At the Social Security Administration (SSA) , where the number of requests has greatly increased in recent years (see above), much of that increase was attributed by SSA to the use of its records by genealogists: "The increase in requests was anticipated because more people are engaged in genealogical activities and one of the more popular records they request is [a submitted] application for [a] social security number."

For fiscal year 2001, many departments and agencies reported that they were working to improve their timeliness by various electronic means. Among these were the Department of Commerce, the Department of Education, the Department of the Interior, the Department of Justice, the Department of Transportation, the Federal Deposit Insurance Corporation, the Federal Energy Regulatory Commission, the National Transportation Safety Board, and the Pension Benefit Guaranty Corporation. Additionally, many agencies reported the value of using in-house and external training activities for its FOIA personnel. Among these were the Department of Agriculture, the Department of Commerce, the Department of Energy, the Department of the Interior, the Department of Justice, the Department of Transportation, the Federal Deposit Insurance Corporation, the Federal Maritime Commission, NASA, the Nuclear Regulatory Commission, and the Overseas Private Investment Corporation.

Lastly, many agencies reported that they were monitoring and evaluating their internal FOIA administrative procedures in an effort to reduce their request-processing times. Among these were the Department of Agriculture, the Department of the Interior, the Federal Deposit Insurance Corporation, the Federal Energy Regulatory Commission, the Nuclear Regulatory Commission, and the Social Security Administration.

As noted above, the Office of Information and Privacy prepares governmentwide annual FOIA report compilations such as this on a regular yearly basis, as soon as possible after the completion of all agency reports following the end of each fiscal year -- which requires increased diligence by all agencies in the timely completion of their reports each year. See FOIA Post, "Supplemental Guidance on Annual FOIA Reports" (posted 8/13/01).

Therefore, all agencies should remember that the untimeliness of the last agency to complete its report each year necessarily constrains this governmentwide compilation process, so it is important that all agencies heed the Act's requirements for the completion of their annual FOIA reports in a timely fashion. See 5 U.S.C. § 552(e)(1)-(3). This issue of annual report timeliness was pointedly raised in a Government Accounting Office review of agency compliance during this past year. See FOIA Post, "Follow-Up Report on E-FOIA Implementation Issued" (posted 9/27/02) (citing 2002 GAO Report drawing prominent attention to cabinet agency that failed to complete its Fiscal Year 2001 report by July 2002). (posted 10/17/02)

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