Freedom of Information Act: Agencies Are Implementing Requirements but Need to Take Additional Actions

FOIA requires federal agencies to provide the public with access to government records and information based on the principles of openness and accountability in government. Each year, individuals and entities file hundreds of thousands of FOIA requests for information on numerous topics that contribute to the understanding of government actions. In the last 9 fiscal years, federal agencies subject to FOIA have received about 6 million requests.

GAO was asked to summarize its draft report on federal agencies' compliance with FOIA requirements. GAO's objectives, among others, were to (1) determine the extent to which agencies have implemented selected FOIA requirements; (2) describe the methods established by agencies to reduce backlogged requests and the effectiveness of those methods; and (3) identify any statutory exemptions that have been used by agencies as the basis for withholding (redacting) information from requesters.

To do so, GAO selected 18 agencies based on their size and other factors and assessed their policies against six FOIA requirements. GAO also reviewed the agencies' backlog reduction plans and developed a catalog of statutes that agencies have used to withhold information.

In its draft report, GAO determined that all 18 selected agencies had implemented three of six Freedom of Information Act (FOIA) requirements reviewed. Specifically, all agencies had updated response letters to inform requesters of the right to seek assistance from FOIA public liaisons, implemented request tracking systems, and provided training to FOIA personnel. For the three additional requirements, 15 agencies had provided online access to government information, such as frequently requested records, 12 agencies had designated chief FOIA officers, and 5 agencies had published and updated their FOIA regulations to inform the public of their operations. Until these agencies address all of the requirements, they increase the risk that the public will lack information that ensures transparency and accountability in government operations.

The 18 selected agencies had backlogs of varying sizes, with 4 agencies having backlogs of 1,000 or more requests during fiscal years 2012 through 2016. These 4 agencies reported using best practices identified by the Department of Justice, such as routinely reviewing metrics, as well as other methods, to help reduce their backlogs. Nevertheless, these agencies' backlogs fluctuated over the 5-year period (see figure). The 4 agencies with the largest backlogs attributed challenges in reducing their backlogs to factors such as increases in the number and complexity of FOIA requests. However, these agencies lacked plans that described how they intend to implement best practices to reduce backlogs. Until agencies develop such plans, they will likely continue to struggle to reduce backlogs to a manageable level.

Agencies used various types of statutory exemptions to withhold information when processing FOIA requests during fiscal years 2010 to 2016. The majority of these fell into the following categories: personally identifiable information, national security, law enforcement and investigations, and confidential and commercial business information.

GAO's draft report contains recommendations to selected agencies to post records online, designate chief FOIA officers, update regulations consistent with requirements, and develop plans to reduce backlogs.

Thank you for the opportunity to participate in today’s hearing on the  Freedom of Information Act (FOIA). As you know, FOIA was enacted into  law more than 50 years ago, requires federal agencies to provide the  public with access to government records and information based on the  principles of openness and accountability in government. Each year,  individuals and entities file hundreds of thousands of FOIA requests for  information on numerous topics that contribute to the understanding of  government actions. In the last 9 fiscal years, agencies subject to FOIA  have reported receiving about 6 million requests.

Given the significance of FOIA, Congress has had a longstanding interest  in the manner in which the act is being implemented, including the extent  to which federal agencies respond to FOIA requests, the timeliness of the  responses, and the number and nature of exemptions claimed by  agencies in withholding requested information. Since 1978, we have  issued a number of reports that have addressed various aspects of  federal agencies’ efforts to implement the act.

As requested, this statement summarizes key preliminary findings based  on our draft report reviewing, among other things, federal agencies’  compliance with FOIA requirements, backlogs, and use of exemptions.  Specifically, this statement (1) determines the extent to which agencies  have implemented selected FOIA requirements; (2) describes the  methods established by agencies to reduce backlogged requests and the  effectiveness of those methods; (3) identifies any statutory (b)(3)  exemptions that have been used by agencies as the basis for withholding  (redacting) information. The draft report on FOIA compliance is currently  out for comment with selected agencies. Accordingly, the draft report is  subject to revision prior to final issuance, expected in April 2018.

In our FOIA draft report, for our first and second objectives, we reviewed  the FOIA-related actions of a nonprobability sample of federal agencies.  We identified these agencies by considering the following factors: the  number of FOIA requests received, the sizes of FOIA backlogs, and the  average time for processing FOIA requests for fiscal years 2012 through  2016. We also chose the agencies to represent a range of sizes (by  number of employees)—large (10,000 or more), medium (1,000 to 9,999),  and small (999 or fewer). Based on these criteria, we selected 18  agencies for our review.

For the first objective, we reviewed six FOIA requirements outlined in the  FOIA Improvement Act of 2016 and the OPEN Government Act of 2007.  These specific requirements call for agencies to (1) update response  letters, (2) implement tracking systems, (3) provide FOIA training, (4),  provide required records online, (5) designate chief FOIA officers, and (6)  update and publish timely and comprehensive regulations. We then  obtained and reviewed available documentation from the 18 selected  agencies describing their decisions and actions related to the requirements. We also interviewed relevant officials at each selected  agency, the Office of Management and Budget (OMB) and the  Department of Justice’s (Justice) Office of Information Policy (OIP) to  discuss the status of efforts to develop a government-wide FOIA request  portal, as required by the 2016 amendments to FOIA. The findings related  to our first objective are not generalizable to the 117 FOIA reporting  agencies.

For the second objective, we first reviewed requirements for agencies to  produce backlog reduction plans, as outlined in Justice’s annual chief  FOIA officer report guidance and OMB’s Open Government Directive of  2009. We then determined whether agencies had developed such plans  as required, by interviewing relevant agency personnel and reviewing  existing plans. Further, we analyzed data on Justice’s FOIA.gov website  to identify any instances of a reported reduction in an agency’s FOIA  backlog when the agency had a backlog reduction plan in place.

To address the third objective, we developed a catalog of (b)(3) statutes  that agencies previously have used to withhold information in FOIA  records under the (b)(3) exemption. To develop the catalog, we compiled  a list of (b)(3) exemptions, along with the number of times each  exemption was used by at least 1 of 117 agencies for which annual FOIA  report data covering fiscal years 2010 through 2016 were available on  Justice’s FOIA.gov website and could use.

In addition, this statement summarizes our findings based on an  additional report, being issued today, which provides information  regarding federal court decisions that pertain to the improper withholding  of FOIA records. For this report we reviewed Justice’s annual FOIA  Litigation and Compliance reports for calendar years 2008 through 2016  to identify instances in which the department had notified OSC of a  lawsuit regarding improperly withheld FOIA records. We focused our  review on these specific years because the OPEN Government Act of  2007 amended FOIA to require Justice to report on court findings.  Justice began including this information in its 2008 FOIA Litigation and  Compliance reports, and at the time of our review, had completed reports  through calendar year 2016.

The work upon which this testimony is based is being conducted in  accordance with generally accepted government auditing standards.  Those standards require that we plan and perform the audit to obtain  sufficient, appropriate evidence to provide a reasonable basis for our  findings and conclusions based on our audit objectives. We believe that  the evidence obtained provides a reasonable basis for our findings and  conclusions based on our audit objectives.

The Freedom of Information Act establishes a legal right of access to  government information on the basis of the principles of openness and  accountability in government. Before FOIA’s enactment in 1966, an  individual seeking access to federal records faced the burden of  establishing a “need to know” before being granted the right to examine a  federal record. FOIA established a “right to know” standard, under which  an organization or person could receive access to information held by a  federal agency without demonstrating a need or reason. The “right to  know” standard shifted the burden of proof from the individual to a  government agency and required the agency to provide proper  justification when denying a request for access to a record.

Any person, defined broadly to include attorneys filing on behalf of an  individual, corporations, or organizations, can file a FOIA request. For  example, an attorney can request labor-related workers’ compensation  files on behalf of his or her client, and a commercial requester, such as a  data broker who files a request on behalf of another person, may request  a copy of a government contract. In response, an agency is required to  provide the relevant record(s) in any readily producible form or format  specified by the requester, unless the record falls within a permitted  exemption that provides limitations on the disclosure of information.

FOIA Amendments and Guidance Call for Improvements in How Agencies Process Requests

Various amendments have been enacted and guidance issued to help  improve agencies’ processing of FOIA requests, including:

The Electronic Freedom of Information Act Amendments of 1996 (e- FOIA amendments) strengthened the requirement that federal  agencies respond to a request in a timely manner and reduce their  backlogged requests. The amendments, among other things, made  a number of procedural changes, including allowing a requester to  limit the scope of a request so that it could be processed more quickly  and requiring agencies to determine within 20 working days whether a  request would be fulfilled. This was an increase from the previously  established time frame of 10 business days.

The amendments also authorized agencies to multi-track requests— that is, to process simple and complex requests concurrently on  separate tracks to facilitate responding to a relatively simple request  more quickly. In addition, the amendment encouraged online, public  access to government information by requiring agencies to make  specific types of records available in electronic form.

Executive Order 13392, issued by the President in 2005, directed  each agency to designate a senior official as its chief FOIA officer.  This official was to be responsible for ensuring agency-wide  compliance with the act by monitoring implementation throughout the  agency and recommending changes in policies, practices, staffing,  and funding, as needed. The chief FOIA officer was directed to review  and report on the agency’s performance in implementing FOIA to  agency heads and to Justice on an annual basis. (These are referred  to as chief FOIA officer reports.)

The OPEN Government Act, which was enacted in 2007, made the 2005  executive order’s requirement for agencies to have a chief FOIA officer a  statutory requirement. It also required agencies to submit an annual  report to Justice outlining their administration of FOIA, including  additional statistics on timeliness. Specifically, the act called for agencies  to adequately track their agency’s FOIA request processing information  throughout the reporting year and then produce reports on that topic to  comply with FOIA reporting requirements and Justice guidance for  reporting.

The FOIA Improvement Act of 2016 addressed procedural issues,  including requiring that agencies: (1) make records available in an  electronic format if they have been requested three or more times; (2)  notify requesters that they have a minimum of 90 days to file an  administrative appeal, and (3) provide dispute resolution services at  various times throughout the FOIA process. This act also created  more duties for chief FOIA officers, including requiring them to offer  training to agency staff regarding FOIA responsibilities. The act also  revised and added new obligations for OGIS, and created the Chief  FOIA Officers Council to assist in compliance and efficiency. Further,  the act required OMB, in consultation with Justice, to create a  consolidated online FOIA request portal that allows the public to  submit a request to any agency through a single website.

FOIA Authorizes Agencies to Use Other Federal Statutes to Withhold Information Prohibited from Disclosure

In responding to requests, FOIA authorizes agencies to utilize one of nine  exemptions to withhold portions of records, or the entire record. Agencies  may use an exemption when it has been determined that disclosure of the  requested information would harm an interest related to certain protected  areas. These nine exemptions can be applied by agencies to withhold  various types of information, such as information concerning foreign  relations, trade secrets, and matters of personal privacy.

One such exemption, the statutory (b)(3) exemption, specifically  authorizes withholding information under FOIA on the basis of a law  which:  requires that matters be withheld from the public in such a manner as  to leave no discretion on the issue; or establishes particular criteria for withholding or refers to particular  types of matters to be withheld; and  if enacted after October 28, 2009, specifically refers to section  552(b)(3) of title 5, United States Code.

To account for agencies use of the statutory (b)(3) exemptions, FOIA  requires each agency to submit, in its annual report to Justice, a complete  listing of all statutes that the agency relied on to withhold information  under exemption (b)(3). The act also requires that the agency describe for  each statute identified in its report (1) the number of occasions on which  each statute was relied upon; (2) a description of whether a court has  upheld the decision of the agency to withhold information under each  such statute; and (3) a concise description of any information withheld.   Further, to provide an overall summary of the statutory (b)(3) exemptions  used by agencies in a fiscal year, Justice produces consolidated annual  reports that list the statutes used by agencies in conjunction with (b)(3).

As previously noted, agencies are generally required by the e-FOIA  amendments of 1996 to respond to a FOIA request within 20 working  days. Once received, the request is to be processed through multiple  phases, which include assigning a tracking number, searching for  responsive records, and releasing the records response to the requester.

Also, as relevant, FOIA allows a requester to challenge an agency’s final  decision on a request through an administrative appeal or a lawsuit.  Specifically, a requester has the right to file an administrative appeal if he  or she disagrees with the agency’s decision on their request. Agencies  have 20 working days to respond to an administrative appeal.

Figure 1 provides a simplified overview of the FOIA request and appeals  process.

In a typical agency, as indicated, during the intake phase, a request is  logged into the agency’s FOIA tracking system, and a tracking number is  assigned. The request is then reviewed by FOIA staff to determine its  scope and level of complexity. The agency then typically sends a letter  or email to the requester acknowledging receipt of the request, with a  unique tracking number that the requester can use to check the status of  the request.

Next, FOIA staff (non-custodian) begin the search to retrieve the  responsive records by routing the request to the appropriate program  office(s).This step may include requesting that the custodian (owner) of  the record search and review paper and electronic records from multiple  locations and program offices.

Agency staff then process the responsive records, which includes  determining whether a portion or all of any record should be withheld  based on FOIA’s exemptions. If a portion or all of any record is the  responsibility of another agency, FOIA staff may consult with the other  agency or may send (“refer”) the document(s) to that other agency for  processing. After processing and redaction, a request is reviewed for  errors and to ensure quality. The documents are then released to the  requester, either electronically or by regular mail.

In addition, FOIA allows requesters to sue an agency in federal court if  the agency does not respond to a request for information within the  statutory time frames or if the requesters believe they are entitled to  information that is being withheld by the agency. Further, the act requires  the Office of Special Counsel (OSC) to initiate a proceeding to determine  whether disciplinary action is warranted against agency personnel in  cases involving lawsuits where a court has found, among other things that  agency personnel may have acted arbitrarily or capriciously in responding  to a FOIA request. The act requires Justice to notify OSC when a  lawsuit meets this requirement.

Responsibility for the oversight of FOIA implementation is spread across  several federal offices and other entities. These include Justice’s OIP,  NARA’s OGIS, and the Chief FOIA Officers Council. These oversight  agencies and the council have taken steps to assist agencies to address  the provisions of FOIA.

Justice’s OIP is responsible for encouraging agencies’ compliance with  FOIA and overseeing their implementation of the act. In this regard, the  office, among other things, provides guidance, compiles information on  FOIA compliance, provides FOIA training, and prepares annual summary  reports on agencies’ FOIA processing and litigation activities. The office  also offers FOIA counseling services to government staff and the public.

Issuing guidance. OIP has developed guidance, available on its  website, to assist federal agencies by instructing them in how to  ensure timely determinations on requests, expedite the processing of  requests, and reduce backlogs. The guidance also informs agencies  on what should be contained in their annual FOIA reports to Justice’s  Attorney General.

The office also has documented ways for federal agencies to address  backlog requests. In March 2009 the Attorney General issued  guidance and related policies to encourage agencies to reduce their  backlogs of FOIA requests. In addition, in December 2009, OMB  issued a memorandum on the OPEN Government Act, which called  for a reduction in backlogs and the publishing of plans to reduce  backlogs. Further, in August 2014, OIP held a best practices  workshop and issued guidance to agencies on reducing FOIA  backlogs and improving timeliness of agencies’ responses to FOIA  requests. The OIP guidance instructed agencies to obtain leadership  support, routinely review FOIA processing metrics, and set up staff  training on FOIA.

Overseeing agencies’ compliance. OIP collects information on  compliance with the act by reviewing agencies’ annual FOIA reports  and chief FOIA officer reports. These reports describe the number of  FOIA requests received and processed in a fiscal year, as well as the  total costs associated with processing and litigating requests.

Providing training. The office offers an annual training class that  provides a basic overview of the act, as well as hands-on courses  about the procedural requirements involved in processing a request  from start to finish. In addition, it offers a seminar outlining successful  litigation strategies for attorneys who handle FOIA cases.

Preparing administrative and legal annual reports. OIP prepares two  major reports yearly—one related to agencies’ annual FOIA  processing and one related to agencies’ FOIA litigation and  compliance. The first report, compiled from agencies’ annual FOIA  reports, contains statistics on the number of requests received and  processed by each agency, the time taken to respond, and the  outcome of each request, as well as other statistics on FOIA  administration such as number of backlogs, and the use of  exemptions to withhold information from a requestor. The second  report describes Justice’s efforts to encourage compliance with the  act and provides a listing of all FOIA lawsuits filed or determined in  that year, the exemptions and/or dispositions involved in each case,  and any court-assessed costs, fees, and penalties.

NARA’s OGIS was established by the OPEN Government Act of 2007 to  oversee and assist agencies in implementing FOIA. OGIS’s  responsibilities include reviewing agency policies and procedures,  reviewing agency compliance, recommending policy changes, and  offering mediation services.

The 2016 FOIA amendments required agencies to update response  letters to FOIA requesters to include information concerning the roles of  OGIS and agency’s FOIA public liaisons. As such, OGIS and Justice  worked together to develop a response letter template that includes the  required language for agency letters. In addition, OGIS, charged with  reviewing agency’s compliance with FOIA, launched in 2014 a FOIA  compliance program. OGIS also developed a FOIA compliance self- assessment program, which is intended to help OGIS look for potential  compliance issues across federal agencies.

The Chief FOIA Officers Council is co-chaired by the Director of OIP  and the Director of OGIS. Council members include senior  representatives from OMB, OIP, and OGIS, together with the chief FOIA  officers of each agency, among others. The council’s FOIA-related  responsibilities include: developing recommendations for increasing compliance and disseminating information about agency experiences, ideas, best  practices, and innovative approaches;  identifying, developing, and coordinating initiatives to increase  transparency and compliance; and promoting the development and use of common performance  measures for agency compliance. Selected Agencies Collect and  Maintain Records That Can Be Subject to FOIA Requests.

The 18 agencies selected for our review are charged with a variety of  operations that affect many aspects of federal service to the public. Thus,  by the nature of their missions and operations, the agencies have  responsibility for vast and varied amounts of information that can be  subject to a FOIA request. For example, the Department of Homeland  Security’s (DHS) mission is to protect the American people and the  United States homeland. As such, the department maintains information  covering, among other things, immigration, border crossings, and law  enforcement. As another example, the Department of the Interior’s (DOI)  mission includes protecting and managing the Nation’s natural resources  and, thus, providing scientific information about those resources. Table 1  provides details on each of the 18 selected agencies’ mission and the  types of information they maintain.

The 18 selected agencies reported that they received and processed  more than 2 million FOIA requests from fiscal years 2012 through 2016.  Over this 5-year period, the number of reported requests received  fluctuated among the agencies. In this regard, some agencies saw a  continual rise in the number of requests, while other agencies  experienced an increase or decrease from year to year. For example,  from fiscal years 2012 through 2014, DHS saw an increase in the number  of requests received (from 190,589 to 291,242), but in fiscal year 2015,  saw the number of requests received decrease to 281,138. Subsequently,  in fiscal year 2016, the department experienced an increase to 325,780  requests received.

In addition, from fiscal years 2012 through 2015, the reported numbers of  requests processed by the selected agencies showed a relatively steady  increase. However, in fiscal year 2016, the reported number of requests  processed by these agencies declined. Figure 2 provides a comparison of  the total number of requests received and processed in this 5-year period.

Selected Agencies Implemented the Majority of FOIA Requirements Reviewed

Among other things, the FOIA Improvement Act of 2016 and the OPEN  Government Act of 2007 calls for agencies to (1) update response  letters, (2) implement tracking systems, (3) provide FOIA training, (4),  provide required records online, (5) designate chief FOIA officers, and (6)  update and publish timely and comprehensive regulations. As part of our  ongoing work, we determined that the 18 selected agencies included in  our review had implemented the majority of the six FOIA requirements  evaluated. Specifically,

18 agencies updated response letters, implemented tracking systems,

15 agencies provided required records online, and

12 agencies designated chief FOIA officers.

However, only 5 of the agencies published and updated their FOIA  regulations in a timely and comprehensive manner. Figure 3 summarizes  the extent to which the 18 agencies implemented the selected FOIA  requirements.

Beyond these selected agencies, Justice’s OIP and OMB also had taken  steps to develop a government-wide FOIA request portal that is intended  to allow the public to submit a request to any agency from a single  website.

Selected Agencies Have Updated Their FOIA Response Letters

The 2016 amendments to FOIA required agencies to include specific  information in their responses when making their determinations on  requests. Specifically, agencies must inform requesters that they may  seek assistance from the FOIA Public Liaison,  file an appeal to an adverse determination within a period of time that  is not less than 90 days after the date of such adverse determination;  and  seek dispute resolution services from the FOIA Public Liaison of the  agency or OGIS.

Among the 18 selected agencies, all had updated their FOIA response  letters to include this required information.

All Selected Agencies Had Implemented FOIA Tracking Systems

Various FOIA amendments and guidance call for agencies to use  automated systems to improve the processing and management of  requests. In particular, the OPEN Government Act of 2007 amended  FOIA to require that federal agencies establish a system to provide  individualized tracking numbers for requests that will take longer than 10  days to process and establish telephone or Internet service to allow  requesters to track the status of their requests.

Further, the President’s January 2009 Freedom of Information Act  memorandum instructed agencies to use modern technology to inform  citizens about what is known and done by their government. In addition,  FOIA processing systems, like all automated information technology  systems, are to comply with the requirements of Section 508 of the  Rehabilitation Act (as amended). This act requires federal agencies to  make their electronic information accessible to people with disabilities.

Each of the 18 selected agencies had implemented a system that  provides capabilities for tracking requests received and processed,  including an individualized number for tracking the status of a request.  Specifically,

Ten agencies used commercial automated systems, (DHS, EEOC,  FDIC, FTC, Justice, NTSB, NASA, Pension Benefit Guaranty  Corporation, and USAID).

Three agencies developed their own agency systems (State, DOI, and  TVA).

Five agencies used Microsoft Excel or Word to track requests  (Administrative Conference of the United States, American Battle  Monuments Commission, Broadcasting Board of Governors, OMB,  and U.S. African Development Foundation).

Further, all of the agencies had established telephone or Internet services  to assist requesters in tracking the status of requests; and they used  modern technology (e.g., mobile applications) to inform citizens about  FOIA. For example, the commercial systems allow requesters to submit a  request and track the status of that request online. In addition, DHS  developed a mobile application that allows FOIA requesters to submit  requests and check the status of existing requests.

All Reviewed Agencies’ Chief FOIA Officers Have Offered FOIA Training

The 2016 FOIA amendments require agencies’ chief FOIA officers to offer  training to agency staff regarding their responsibilities under FOIA. In  addition, Justice’s OIP has advised every agency to make such training  available to all of their FOIA staff at least once each year. The office has  also encouraged agencies to take advantage of FOIA training  opportunities available throughout the government.

The 18 selected agencies’ chief FOIA officers offered FOIA training  opportunities to staff in fiscal years 2016 and 2017. For example:

Eleven agencies provided training that gave an introduction and  overview of FOIA (the American Battle Monuments Commission,  EEOC, Justice, FDIC, FTC, NARA, Pension Benefit Guaranty  Corporation, State, TVA, U.S. African Development Foundation, and  USAID).

Three agencies offered training for their agencies’ new online FOIA  tracking and processing systems (DOI, NTSB, and Pension Benefit  Guaranty Corporation).

Three agencies provided training on responding to, handling, and  processing FOIA requests (DHS, DOI, and State).

Three agencies offered training on understanding and applying the  exemptions under FOIA (FDIC, FTC, and U.S. African Development  Foundation).

Two agencies offered training on the processing of costs and fees  (NASA and TVA).

The Majority of Selected Agencies Post Required Records Online

Memorandums from both the President and the Attorney General in 2009  highlight the importance of online disclosure of information and further  direct agencies to make information available without a specific FOIA  request. Further, the 2016 FOIA amendments require online access to  government information and require agencies to make information  available to the public in electronic form for up to four categories: agency final opinions and orders, administrative staff manuals of interest to the public, and  frequently requested records.

While all 18 agencies that we reviewed post records online, only 15 of  them had posted all categories of information, as required by the FOIA  amendments. Specifically, 7 agencies—the American Battle Monuments  Commission, the Pension Benefit Guaranty Corporation, and EEOC,  FDIC, FTC, DOJ, and State—had, as required, made records in all four  categories publicly available online. In addition, 5 agencies that were only  required to publish online records in three of the categories—the  Administrative Conference of the United States, Broadcasting Board of  Governors, DHS, OMB, and USAID— had done so. Further, 3 agencies  that were only required to publish online records in two of the  categories—U.S. African Development Foundation, NARA, and TVA— had done so. The remaining 3 agencies—DOI, NASA, and NTSB—had  posted records online for three of four required categories.

Regarding why the three agencies did not post all of their four required  categories of online records, DOI officials stated that the agency does not  make publically available all FOIA records that have been requested 3 or  more times, as it does not have the time to post all such records that have  been requested. NASA officials explained that, while the agency issues  final opinions, it does not post them online. As for NTSB, while its officials  said they try to post information that is frequently requested, they do not  post the information on a consistent basis  Making the four required categories of information available in electronic  form is an important step in allowing the public to easily access to  government documents. Until these agencies make all required  categories of information available in electronic form, they cannot ensure  that they are providing the required openness in government.

Most Reviewed Agencies Designated a Senior Official as a Chief FOIA Officer

In 2005, the President issued an executive order that established the role  of a Chief FOIA Officer. In 2007, amendments to FOIA required each  agency to designate a chief FOIA officer who shall be a senior official at  the Assistant Secretary or equivalent level.

Of the 18 selected agencies, 12 agencies have Chief FOIA Officers who  are senior officials at the Assistant Secretary or equivalent level. The  Assistant Secretary level is comparable to senior executive level positions  at levels III, IV, and V. Specifically,

State has designated its Assistant Secretary of Administration, Bureau

DOI and NTSB had designated its Chief Information Officers;

Administrative Conference of the United States, Broadcasting Board  of Governors, FDIC, NARA, and U.S. African Development  Foundation have designated their general counsels; and  Justice, NASA, TVA, and USAID designated their Associate Attorney  General, Associate Administrator for Communications, the Vice  President for Communications, and the Assistant Administrator for the  Bureau of Management, respectively.

However, 6 agencies — American Battle Monuments Commission DHS,  EEOC, Pension Benefit Guaranty Corporation, FTC, and OMB — do not  have chief FOIA officers that are senior officials at the Assistant Secretary  or equivalent level. According to officials from 5 of these agencies, the  agencies all have chief FOIA officers and officials believed they had  designated the appropriate officials. Officials at FTC acknowledged that  the chief FOIA officer position is not designated at a level equivalent to an  Assistant Secretary but a senior position within the agency. However,  while there are chief FOIA officers at these agencies, until the chief FOIA  officers are designated at the Assistant Secretary or equivalent level, they  will lack assurance regarding the necessary authority to make decisions  about agency practices, personnel, and funding.

Most Reviewed Agencies Have Not Updated Regulations as Required to Inform the Public of Their FOIA Operations

FOIA requires federal agencies to publish regulations in the Federal  Register that inform the public of their FOIA operations.   Specifically, in 2016, FOIA was amended to require agencies to update  their regulations regarding their FOIA operations. To assist agencies in  meeting this requirement, OIP created a FOIA regulation template for  agencies to use as they update their regulations. Among other things,  OIP’s guidance encouraged agencies to: describe their dispute resolution processed, describe their administrative appeals process for response letters of notify requesters that they have a minimum of 90 days to file an  inform requesters that the agency may charge fees for requests  determined as “unusual” circumstances ; and update the regulations in a timely manner (i.e., update regulations by  180 days after the enactment of the 2016 FOIA amendment.)

Five agencies in our review—DHS, DOI, FDIC, FTC, and USAID— addressed all five requirements in updating their regulations. In addition,  seven agencies addressed four of the five requirements: the  Administrative Conference of the United States, EEOC, Justice, NARA,  NTSB, Pension Benefit Guaranty Corporation, and TVA did not update  their regulations in a timely manner.

Further, four agencies addressed three or less requirements (U.S. African  Development Foundation, State, NASA, and Broadcasting Board of  Governors) and two agencies (American Battle Monuments Commission  and OMB) did not address any of the requirements. Figure 4 indicates the  extent to which the 18 agencies had addressed the five selected  requirements.

Agencies that did not address all five requirements provided several  explanations as to why their regulations were not updated as required:

American Battle Monuments Commission stated that while they  updated their draft regulation in August 2017, it is currently  unpublished due to internal reviews with the General Counsel in  preparation for submission to the Federal Register. No new posting  date has been established. American Battle Monuments Commission  last updated its regulation in February 26, 2003.

State officials noted that their regulation was updated two months  prior to the new regulation requirements but did not provide a specific  reason for not reissuing its regulation. As such, they explained that  they have a working group reviewing their regulation for updates, with  no timeline identified. State last updated its regulation on April 6,  2016.

NASA officials did not provide a reason for not updating its regulation  as required. Officials did, however, state that its draft regulation is with  the Office of General Counsel for review. NASA last updated its  regulations on August 11, 2017.

Broadcasting Board of Governors officials did not provide a reason for  not updating its regulation as required. Officials did, however, note  that the agency is in the process of updating its regulation and  anticipates it will complete this update by the end of 2018. The  Broadcasting Board of Governors last updated its regulation on  February 2, 2002.

OMB officials did not provide a reason for not updating the agency’s  regulation as required. Officials did, however, state that due to a  change in leadership they do not have a time frame for updating their  regulation. OMB last updated its regulation on May 27, 1998.

The chief FOIA officer at the U.S. African Development Foundation  stated that, while the agency had updated and submitted their  regulation to be published in December 2016, they were unpublished  due to an error that occurred with the acknowledgement needed to  publish the regulation on the federal register. The regulation was  subsequently published on February 3, 2017. The official further noted  that when the agency responds to FOIA requests it has not charged a  fee for unusual circumstances, and therefore they did not believe they  had to disclose information regarding fees in its regulation.

Until these six agencies publish updated regulations that address the  necessary requirements, as called for in FOIA and OIP guidance, they  likely will be unable to provide the public with required regulatory and  procedural information to ensure transparency and accountability in the  government.

Justice and OMB Have Taken Steps to Develop an Online FOIA Request Portal

The 2016 FOIA amendments required OMB to work with Justice to build a  consolidated online FOIA request portal. This portal is intended to allow  the public to submit a request to any agency from a single website and  include other tools to improve the public’s access to the benefits of FOIA.  Further, the act required OMB to establish standards for interoperability  between the consolidated portal and agency FOIA systems. The 2016  FOIA amendments did not provide a time to develop the portal and  standards.

With OMB’s support, Justice developed an initial online portal. Justice’s  OIP officials stated that they expect to update the portal to provide basic  functionality that aligns with requirements of the act, including the ability  to make a FOIA request, and technical processes for interoperability  amongst agencies’ various FOIA systems. According to OIP officials, in  partnership with OMB, OIP was able to identify dedicated funding source  to operate and maintain the portal to ensure its success in the long term,  with major agencies sharing in the costs to operate, maintain, and fund  any future enhancements designed to improve FOIA processes. The first  iteration of the National FOIA portal launched on Justice’s foia.gov  website on March 8, 2018.

Agencies Have Methods to Reduce Backlogged Requests, but Their Efforts Have Shown Mixed Results

In our draft report, we determined that the 18 selected agencies in our  review had FOIA request backlogs of varying sizes, ranging from no  backlogged requests at some agencies to 45,000 or more requests at  other agencies. Generally, the agencies with the largest backlogs had  received the most requests. In an effort to aid agencies in reducing their  backlogs, Justice’s OIP identified key practices that agencies can use.  However, while the agencies reported using these practices and other  methods, few of them managed to reduce their backlogs during the period  from fiscal year 2012 through 2016. In particular, of the four agencies with  the largest backlogs, only one—NARA—reduced its backlog. Agencies  attributed their inability to decrease backlogs to the number and  complexity of requests, among other factors. However, agencies also lack  comprehensive plans to implement practices on an ongoing basis.

Agencies Have FOIA Request Backlogs of Varying Sizes, and Most Increased from Fiscal Year 2012 through 2016

The selected agencies in our review varied considerably in the size of  their FOIA request backlogs. Specifically, from fiscal year 2012 through  2016, of the 18 selected agencies

10 reported a backlog of 60 or fewer requests, and of these 10  agencies, 6 reported having no backlog in at least 1 year.

4 agencies had backlog numbers between 61 and 1,000 per year; and

4 agencies had backlogs of over 1,000 requests per year.

The four agencies with backlogs of more than 1,000 requests for each  year we examined were Justice, NARA, State and DHS. Table 2 shows  the number requests and the number of backlogged request for the 18  selected agencies during the 5-year period.

Over the 5-year period, 14 of the 18 selected agencies experienced an  increase in their backlogs in at least 1 year. By contrast, 2 agencies  (Administrative Conference of the United States and the U.S. African  Development Foundation) reported no backlogs, and 3 agencies  (American Battle Monument Commission, NASA and NARA) reported  reducing their backlogs. Further, of the four agencies with the largest  backlogs (DHS, State, Justice, and NARA) only NARA reported a backlog  lower in fiscal year 2016 than in fiscal year 2012. Figure 5 shows the  trends for the four agencies with the largest backlogs, compared with the  rest of the 18 agencies.

In most cases, agencies with small or no backlogs (60 or fewer) also  received relatively few requests. For example, the Administrative  Conference of the United States and the U.S. African Development  Foundation reported no backlogged requests during any year but also  received fewer than 30 FOIA requests a year. The American Battle  Monuments Commission also received fewer than 30 requests a year and  only reported 1 backlogged request per year in 2 of the 5 years  examined. However, the Pension Benefit Guaranty Corporation and FDIC  received thousands of requests over the 5-year period, but maintained  zero backlogs in a majority of the years examined. PBGC received a total  of 19,120 requests during the 5-year period and only reported a backlog  of 8 requests during one year, fiscal year 2013. FDIC received a total of  3,405 requests during the 5-year period and reported a backlog of 13  requests in fiscal year 2015 and 4 in fiscal year 2016.

The four agencies with backlogs of 1,000 or more (Justice, NARA, State,  and DHS) received significantly more requests each year. For example,  NARA received between about 12,000 and 50,000 requests each year,  while DHS received from about 190,000 to 325,000 requests. In addition,  the number of requests NARA received in fiscal year 2016 was more than  double the number received in fiscal year 2012. DHS received the most  requests of any agency—a total of 1,320,283 FOIA requests over the 5- year period.

Agencies Identified a Variety of Methods to Reduce Backlogs, but Few Saw Reductions

The Attorney General’s March 2009 memorandum called on agency chief  FOIA officers to review all aspects of their agencies’ FOIA administration  and report to Justice on steps that have been taken to improve FOIA  operations and disclosure. Subsequent Justice guidance required  agencies are to include in their chief FOIA officer reports information on  their FOIA request backlogs, including whether the agency experienced a  backlog of requests; whether that backlog decreased from the previous  year; and, if not, reasons the backlog did not decrease. In addition,  agencies that had more than 1,000 backlogged requests in a given year  were required to describe their plans to reduce their backlogs. Beginning  in fiscal year 2015, these agencies were to describe how they  implemented their plans from the previous year and whether that resulted  in a backlog reduction.

In addition, Justice’s OIP identified best practices for reducing FOIA  backlogs. The office held a best practices workshop on reducing backlogs  and improving timeliness. The office then issued guidance in August 2014  which highlighted key practices to improve the quality of a FOIA program.  OIP identified the following methods in its best practices guidance.

Utilize resources effectively. Agencies should allocate their  resources effectively by using multi-track processing, making use of  available technology, and shifting priorities and staff assignments to  address needs and effectively manage workloads.

Routinely review metrics. Agencies should regularly review their  FOIA data and processes to identify challenges or barriers.  Additionally, agencies should identify trends to effectively allocate  resources, set goals for staff, and ensure needs are addressed.

Emphasize staff training. Agencies should ensure FOIA staff are  properly trained so they can process requests more effectively and  with more autonomy. Training and engagement of staff can also  solidify the importance of the FOIA office’s mission.

Obtain leadership support. Agencies should ensure that senior  management is involved in and supports the FOIA function in order to  increase awareness and accountability, as well as make it easier to  obtain necessary resources or personnel.

Agencies identified a variety of methods that they used to address their  backlogs. These included both the practices identified by Justice, as well  as additional methods.

Ten agencies maintained relatively small backlogs of 60 or fewer  requests and were thus not required to develop plans for reducing  backlogs. However, 2 of these 10 agencies, who both received significant  numbers of requests, described various methods used to maintain a small  backlog:

PBGC officials credits its success to training, not only for FOIA staff,  but all Incoming personnel, while also awarding staff for going above  and beyond in facilitating FOIA processing. Pension Benefit Guaranty  Corporation has incorporated all the best practices identified by OIP,  including senior leadership involvement that supports FOIA initiatives  and program goals, routine review of metrics to optimize workflows,  effective utilization of resources and staff training.

According to FDIC officials, its overall low backlog numbers are  attributed to a trained and experienced FOIA staff, senior  management involvement, and coordination among FDIC divisions.  However, FDIC stated the reason for the increase in backlogs in fiscal  year 2015 was due to increased complexity of requests.

The 4 agencies with backlogs greater than 60 but fewer than 1,000  (EEOC, DOI, NTSB, and USAID) reported using various methods to  reduce their backlogs. However, all 4 showed an increase over the 5-year  period.

EEOC officials stated that it had adopted practices recommended by  OIP such as multi-track processing, reviewing workloads to ensure  sufficient staff, and using temporary assignments to address needs.  However, it has seen a large increase in its backlog numbers, going  from 131 in fiscal year 2012 to 792 in fiscal year 2016. EEOC  attributed the rise in backlogs to an increase in requests received,  loss of staff, and the complex and voluminous nature of requests.

DOI, according to agency officials, has also tried to incorporate  reduction methods and best practices, including proactively releasing  information that may be of interest to the public, thus avoiding the  need for a FOIA request; enhanced training for its new online FOIA  tracking and processing system; improved inter-office collaboration;  monthly reports on backlogs and weekly charts on incoming requests  to heighten awareness among leadership; and monitoring trends. Yet,  DOI has seen an increase in its backlog, from 449 in fiscal year 2012  to 677 in fiscal year 2016, an increase of 51 percent. DOI attributed  the increase to loss of FOIA personnel, increase in the complexity of  requests, increase in FOIA-related litigation, increase in incoming  requests, and staff having additional duties.

Officials at NTSB stated that it utilized contractors and temporary staff  assignments to augment staffing and address backlogs. Despite the  effort, NTSB saw a large increase in backlogs, from 62 in fiscal year  2012 to 602 in fiscal year 2016. Officials stated that reason for the  increase was due to increased complexity of requests, including  requests for “any and all” documentation related to a specific subject,  often involving hundreds to thousands of pages per request.

According to USAID officials, the agency conducts and reviews  inventories of its backlog and requests to remove duplicates and  closed cases, group and classify requests by necessary actions and  responsive offices, and initiate immediate action. In addition, USAID  seeks to identify tools and solutions to streamline records for review  and processing. However, its backlog numbers have continually  increased, from 201 in fiscal year 2012 to 318 in fiscal year 2016.  USAID attributes that increase to increase in the number of requests,  loss of FOIA staff, increased complexity and volume of requests,  competing priorities, and world events that may drive surges in  requests.

Of the four agencies with the largest backlogs, all reported taking steps  that in some cases included best practices identified by OIP; however,  only NARA successfully reduced its backlog by the end of the 5-year  period.

Justice made noted that it efforts to reduce its backlog by  incorporating best practices. Specifically, OIP worked with  components within Justice through the Component Improvement  Initiative to identify causes contributing to a backlog and assist  components in finding efficiencies and overcoming challenges. The  Chief FOIA Officer continued to provide top-level support to reduction  efforts by convening the department’s FOIA Council to manage  overall FOIA administration. In addition, many of the components  created their own reduction plans, which included hiring staff, utilizing  technology, and providing more training, requester outreach, and  multitrack processing.

However, despite these efforts, the number of backlogs steadily  increased during the 5-year period, from 5,196 in fiscal year 2012 to  10,644 in fiscal year 2016, an overall increase of 105 percent. Justice  attributes the increase in backlogs to several challenges, including an  increase of incoming requests and an increase in the complexity of  those requests. Other challenges that Justice noted were staff  shortages and turnover, reorganization of personnel, time to train  incoming staff, and the ability to fill positions previously held by highly  qualified professionals.

NARA officials stated that one key step NARA took was to make  corrections in its Performance Measurement and Reporting System.  They noted that this system previously comingled backlogged  requests with the number of pending FOIA requests, skewing the  backlog numbers higher. The improvements included better  accounting for pending and backlogged cases, distinguishing between  simple and complex requests, and no longer counting as open cases  that were closed within 20 days, but not until the beginning of the  following fiscal year. In addition, officials also stated that the FOIA  program offices have been successful at working with requesters to  narrow the scope of requests.

NARA also stated that it was conducting an analysis of FOIA across  the agency to identify any barriers in the process. Officials also  identified other methods, including using multi-track processing,  shifting priorities to address needs, improved communication with  agencies, proactive disclosures, and the use of mediation services.

NARA has shown significant progress in reducing its backlog. In fiscal  year 2012 it had a backlog of 7,610 requests, which spiked to 9,361 in  fiscal year 14. However, by fiscal year 2016 the number of  backlogged requests had dropped to 2,932 despite an more than  doubling of requests received for that fiscal year. However, NARA did  note challenges to reducing its backlog numbers, namely, the  increase in the number of requests received.

State developed and implemented a plan to reduce its backlog in  fiscal year 2016. The plan incorporated two best practices by focused  on identifying the extent of the backlog problem and developing ways  to address the backlog with available resources. According to State  officials, effort was dedicated to improve how FOIA data was  organized and reported. Expedited and litigation cases were top  priorities, whereas in other cases a first in first out method was  employed.

Even with these efforts, however, State experienced a 117 percent  increase in its backlog over the 5-year period. State’s backlog doubled  from 10,045 in fiscal year 2014 to 22,664 in fiscal year 2016. Among  the challenges to managing its backlog, State reported an increase in  incoming requests, a high number of litigation cases, and competing  priorities. Specifically, the number of incoming requests for State  increase by 51 percent during the 5-year period. State has also  reported that it has allocated 80 percent of its FOIA resources to meet  court-ordered productions associated with litigation cases, resulting in  fewer staff to work on processing routine requests. This included,  among other efforts, a significant allocation of resources in fiscal year  2015 to meet court-imposed deadlines to process emails associated  with the former Secretary of State, resulting in a surge of backlogs.

In 2017 State began an initiative to actively address its backlogs. The  Secretary of State issued an agency-wide memorandum stating the  department’s renewed efforts by committing more resources and  workforce to backlog reduction. The memo states new processes are  to be implemented for both the short and long-term, and the FOIA  office has plans to work with the various bureaus to outline the tasks,  resources, and workforce necessary to ensure success and  compliance. With renewed leadership support, State has reported  significant progress in its backlog reduction efforts.

DHS, in its chief FOIA officer reports, reported that it implemented  several plans to reduce backlogs. The DHS Privacy office, which is  responsible for oversight of the department’s FOIA program, worked  with components to help eliminate the backlog. The Privacy Office  sent monthly emails to component FOIA officers on FOIA backlog  statistics, convened management meetings, conducted oversight, and  reviewed workloads. Leadership met weekly to discuss the oldest  pending requests, appeals, and consultations, and determined  needed steps to process those requests.

In addition, several other DHS components implemented actions to  reduce backlogs. Customs and Border Protection hired and trained  additional staff, encouraged requesters to file requests online,  established productivity goals, updated guidance, and utilized better  technology. U.S. Citizenship and Immigration Services, National  Protection and Programs Directorate, and Immigration and Customs  Enforcement increased staffing or developed methods to better  forecast future workloads ensure adequate staffing. Immigration and  Customs Enforcement also implemented a commercial off-the-shelf  web application, awarded a multi-million dollar contract for backlog  reduction, and detailed employees from various other offices to assist  in the backlog reduction effort.

Due to efforts by the Privacy Office and other components, the  backlog dropped 66 percent in fiscal year 2015, decreasing to 35,374.  Yet, despite the continued efforts in fiscal year 2016, the backlog  numbers increased again, to 46,788. DHS attributes the increases in  backlogs to several factors, including an increase in the number of  requests received, increased complexity and volume of responsive  records for those requests, loss of staff and active litigation with  demanding production schedules.

One reason the eight agencies with significant backlogs may be  struggling to consistently reduce their backlogs is that they lack  documented, comprehensive plans that would provide a more reliable,  sustainable approach to addressing backlogs. In particular, they do not  have documented plans that describe how they will implement best  practices for reducing backlogs over time, including specifying how they  will use metrics to assess the effectiveness of their backlog reduction  efforts and ensure that senior leadership supports backlog reduction  efforts, among other best practices identified by OIP.

While agencies with backlogs of 1,000 or more are required to describe  backlog reduction efforts in their chief FOIA officer reports, these consist  of a high-level narrative and do not include a specific discussion of how  the agencies will implement best practices over time to reduce their  backlog. In addition, agencies with backlogs of fewer than 1,000 requests  are not required to report on backlog reduction efforts; however, the  selected agencies in our review with backlogs in the hundreds still  experienced an increase over the 5-year period.

Without a more consistent approach, agencies will continue to struggle to  reduce their backlogs to a manageable level, particularly as the number  and complexity of requests increase over time. As a result, their FOIA  processing may not respond effectively to the needs of requesters and  the public.

Various Types of Statutory Exemptions Exist and Many Have Been Used by Agencies

FOIA requires agencies report annually to Justice on their use of statutory  (b)(3) exemptions. This includes specifying which statutes they relied on  to exempt information from disclosure and the number of times they did  so. To assist agencies in asserting and accounting for their use of these  statutes, Justice instructs agencies to consult a running list of all the  statutes that have been found to qualify as proper (b)(3) statutes by the  courts.

However, agencies may also use a statute not included in the Justice list,  because many statutes that appear to meet the requirements of (b)(3)  have not been identified by a court as qualifying statutes. If the agency  uses a (b)(3) statute that is not identified in the qualifying list, Justice  guidance instructs the agency to include information about that statute in  its annual report submission. Justice reviews the statute and provides  advice to the agency, but does not make a determination on the  appropriateness of using that statute under the (b)(3) exemption.

Based on data agencies reported to Justice, during fiscal years 2010 to  2016, agencies claimed 237 statutes as the basis for withholding  information. Of these statutes, 75 were included on Justice’s list of  qualifying statutes under the (b)(3) exemption. Further, we identified 140  additional statutes that were not identified in our 237 statutes claimed by  agencies during fiscal years 2010 to 2016, but have similar provisions to  other (b)(3) statutes authorizing an agency to withhold information from  the public.

We found that the 237 statutes cited as the basis for (b)(3) exemptions  during the period from fiscal year 2010 to 2016 to fell into eight general  categories of information. These categories were (1) personally  identifying information, (2) national security, (3) commercial, (4) law  enforcement and investigations, (5) internal agency, (6) financial  regulation, (7) international affairs, and (8) environmental. Figure 6  identifies the eight categories and the number of agency-claimed (b)(3)  statutes in each of the categories.

Of the 237 (b)(3) statutes cited by agencies, the majority—178—fell into  four of the eight categories:

Forty-nine of these statutes related to withholding personally  identifiable information including, for example, a statute related to  withholding death certificate information provided to the Social  Security Administration.

Forty-five statutes related to the national security category. For  example, one statute exempted files of foreign intelligence or  counterintelligence operations of the National Security Agency.

Forty-two statutes were in the law enforcement and investigations  category, including a statute that exempts from disclosure information  provided to Justice pursuant to civil investigative demands pertaining  to antitrust investigations.

Forty-two statutes fell into the commercial category. For example, one  statute in this category related to withholding trade secrets and other  confidential information related to consumer product safety.

The remaining 59 statutes were in four categories: internal agency  functions and practices, financial regulation, international affairs, and  environmental. The environmental category contained the fewest number  of statutes and included, for example, a statute related to withholding  certain air pollution analysis information.

As required by FOIA, agencies also reported the number of times they  used each (b)(3) statute. In this regard, 33 FOIA-reporting agencies  indicated that they had used 10 of the 237 (b)(3) statutes more than  200,000 times. Of these 10 most-commonly used statutes, the single  most-used statute (8 U.S.C § 1202(f)) related to withholding records  pertaining to the issuance or refusal of visas to enter the United States. It  was used by 4 agencies over 58,000 times.

Further, of the 10 most-commonly used statutes, the statute used by the  greatest number of agencies (26 U.S.C § 6103) related to the withholding  of certain tax return information; it was used by 24 FOIA-reporting  agencies about 30,000 times. By contrast, some statutes were only  used by a single agency. Specifically, the Department of Veterans Affairs  used a statute related to withholding certain confidential veteran medical  records (38 U.S.C. § 7332) more than 16,000 times. Similarly, EEOC  used a statute related to employment discrimination on the basis of  disability (42 U.S.C. § 12117) more than 10,000 times.

Table 4 shows the 10 most-used statutes under the (b)(3) exemption, the  agency that used each one most frequently, and the number of times they  were used by that agency for the period covering fiscal years 2010  through 2016.

Most Statutes Enacted after 2009 That Were Used by Agencies Did Not Specifically Cite the (b)(3) Exemption

The OPEN FOIA Act of 2009 amended FOIA to require that any federal  statute enacted subsequently must specifically cite paragraph (b)(3) of  FOIA to qualify as a (b)(3) exemption statute. Prior to 2009, a federal  statute qualified as a statutory (b)(3) exemption if it (1) required that the  matters be withheld from the public in such a manner as to leave no  discretion on the issue, or (2) established particular criteria for withholding  or refers to particular types of matters to be withheld.

In response to the amendment, in 2010, Justice released guidance to  agencies stating that any statute enacted after 2009 must specifically cite  to the (b)(3) exemption to qualify as a withholding statute. Further, the  guidance encouraged agencies to contact Justice with questions  regarding the implementation of the amendment.

Even with this guidance, we found that a majority of agency-claimed  statutes during fiscal years 2010 through 2016 did not specifically cite the  (b)(3) exemption. Specifically, of the 237 (b)(3) statutes claimed by  agencies, 103 were enacted or amended after 2009 and, thus, were  subject to the requirement of the OPEN FOIA Act. Of those 103  statutes, 86 lacked the required statutory text that cited exemption (b)(3)  of FOIA.

Figure 7 shows the number of agency-claimed statutes subject to the  OPEN FOIA Act of 2009 requirement that did not cite the (b)(3)  exemption.

Agencies are using these statutes as the basis for withholding information  when responding to a FOIA request. This is despite these statutes not  having a reference to the (b)(3) exemption as required by the 2009 FOIA  amendments.

Federal Court Decisions Have Not Required the Office of Special Counsel to Initiate Disciplinary Actions for the Improper Withholding of Records

In our report, being issued today, we found that, according to the  available information and Justice and OSC officials, since fiscal year  2008, no court orders have been issued that have required OSC to initiate  a proceeding to determine whether disciplinary action should be taken  against agency FOIA personnel. Specifically, officials in Justice’s Office of  Information Policy stated that there have been no lawsuits filed by a FOIA  requester that have led the courts to conduct all three requisite actions  needed for Justice to refer a court case to OSC.

Justice’s litigation and compliance reports identified six court cases  (between calendar years 2013 and 2016) in which the requesters sought  a referral from the courts in an attempt to have OSC initiate an  investigation. However, in all six cases, the courts denied those requests,  finding that each case did not result in the courts taking the three actions  necessary to involve OSC.

Thus, given these circumstances, Justice has not referred any court  orders to OSC to initiate a proceeding to determine whether disciplinary  action should be taken against agency FOIA personnel. For its part, OSC  officials confirmed that the office has neither received, nor acted on, any  such referrals from Justice. As such, OSC has not had cause to initiate  disciplinary actions for the improper withholding of FOIA records.

In summary, the 18 agencies we selected for review fully implemented  half of the six FOIA requirements reviewed and the vast majority of  agencies implemented two additional requirements. However, 5 agencies  published and updated their FOIA regulations in a timely and  comprehensive manner. Fully implementing FOIA requirements will better  position agencies to provide the public with necessary access to  government records and ensure openness in government.

The selected agencies in our review varied considerably in the size of  their backlogs. While 10 reported a backlog of 60 or fewer requests, 4  had backlogs of over 1,000 per year. Agencies identified a variety of  methods that they used to address their backlogs, including practices  identified by Justice, as well as additional methods. However, the  selected agencies varied in the success achieved for reducing their  backlogs. This was due, in part, to a lack of plan that describes how the  agencies will implement best practices for reducing backlogs over time.  Until agencies develop plans to reduce backlogs, they will be limited in  their ability to respond effectively to the needs of requesters and the  public.

Accordingly, our draft report contains 23 planned recommendations to  selected agencies. These recommendations address posting records  online, designating chief FOIA officers, updating regulations consistent  with requirements, and developing plans to reduce backlogs.  Implementation of our recommendations should better position these  agencies to address FOIA requirements and ensure the public is provided  with access to government information.

Chairman Grassley, Ranking Member Feinstein, and Members of the  Committee, this completes my prepared statement. I would be pleased to  respond to any questions that you may have at this time.

If you have any questions on matters discussed in this testimony, please  contact David A. Powner at (202) 512-9286 or at pownerd@gao.gov.  Individuals who made key contributions to this testimony are Anjalique  Lawrence (assistant director), Lori Martinez (analyst in charge), Gerard  Aflague, David Blanding, Christopher Businsky, Rebecca Eyler, James  Andrew Howard, Carlo Mozo, David Plocher, and Sukhjoot Singh.

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