Update
13 March 2006
CIA
Wins 2006 "Rosemary Award"
for Worst Freedom of Information Performance by a Federal Agency
Press
Release
Executive
Summary, Findings and Recommendations
The
Ten Oldest FOIA Requests in the Federal Government
Chart
- Summary of Audit Findings and Oldest Pending Requests
Chart
- Agency Response Times
Documents
Released by Agencies in Response to Archive Audit
Graph
- 10 Oldest Outstanding FOIA Requests in 2005
Graphs
- 10 Oldest Outstanding FOIA Requests in 2003 Compared with 2005
Graph
1 - Air
Force - Office of the Secretary; Central Intelligence Agency; Army
Intelligence; Department of Defense; Federal Bureau of Investigation
Graph
2 -
Dept. of Treasury; Defense Intelligence Agency; Environmental Protection
Agency; Dept. of Energy; National Archives
Graph
3 - Dept.
of Interior; Federal Aviation Adminstration; Air Force - Air Combat
Command; Dept. of Justice; Dept. of Commerce
Methodology
Related
Links
FOIA Audit Phase 1: The Ashcroft
Memo, March 14, 2003
FOIA
Audit Phase 2: Justice Delayed is Justice Denied: The Ten Oldest
Pending FOIA Requests, November 13, 2003
|
Click
here for a PDF version of the Executive Summary, Findings and Recommendations
Executive
Summary
In an effort to identify the oldest unanswered Freedom of Information
Act (FOIA) requests in the federal government, the National Security
Archive used the FOIA itself to ask more than 60 federal agencies
for copies of their ten oldest pending FOIA requests. The results
are astonishing-requests as old as 17 years remain unanswered,
some agencies are unable even to identify their oldest requests,
and agency backlogs are significantly more chronic and extensive
than the agencies' annual reports to Congress indicate.
The
oldest FOIA request unearthed by the Archive's Audit
was submitted in March 1989 to the Department of Defense by a
graduate student at the University of Southern California, asking
for records on the U.S. "freedom of navigation" program.
So much time has elapsed since the initial submission of that
request that the requester, William Aceves, is now a tenured professor
at California Western School of Law. Other agencies that have
requests more than 15 years old include the Central Intelligence
Agency, the U.S. Air Force, the National Archives and Records
Administration, and the Department of Energy. The CIA claims four
of the oldest ten pending FOIA requests in the government-from
November 1989, May 1987 (Received at the CIA 1990), January 1991,
and February 1991.
These results are even more shocking because many of the same
ancient requests had turned up in the Archive's
2003 Freedom of Information Act Audit. The 2005 Audit
reveals that 60 requests identified by agencies as their oldest
pending requests in 2003 still have not been answered. Although
the 2003 Audit called attention to certain agencies' shameful
processing failures, many of these FOIA offices continue to let
their oldest requests linger.
The oldest request uncovered in the Archive's 2003 Audit, a 1987
letter from San Francisco Chronicle reporter Seth Rosenfeld
on FBI activities in Berkeley, California, was not provided by
the FBI in their latest list of oldest pending requests, indicating
that the FBI now considers this request closed. According to Mr.
Rosenfeld, the November 1987 request, which clarified an earlier
1981 request, has not yet completely been fulfilled. The FBI has
provided Mr. Rosenfeld more than 200,000 pages over the past 25
years, and provided responsive documents as recently January 31,
2006, but has not completed processing.
Another request designated in 2003 as one of the oldest in the
federal government was an October 1989 request to the CIA, submitted
by Lancaster Pennsylvania's Intelligencer Journal for
documents related to James Howard Guerin and his business ventures.
According to James Bamford's bestselling book Body of Secrets,
Guerin ran a company in the 1970s and '80s that served as a cover
between the National Security Agency (NSA) and South African intelligence
services that allowed the NSA to monitor Soviet naval activity
off the Cape of Good Hope, while overriding official U.S. sanctions
on South Africa's apartheid government. Bobby Ray Inman, head
of NSA from 1977-1981 and Deputy Director of the CIA from 1981-1982,
served on the board of Guerin's company in 1982. In August 2004,
almost a year after the Archive published its 2003 Audit and almost
fifteen years after the Intelligencer Journal's initial
request to the CIA, the newspaper received a final response from
the CIA saying the agency had not found any documents
and was closing the request.
In some situations, agencies can reasonably justify a processing
delay by citing interagency coordination and security review backlogs.
In the case of the Intelligencer Journal's request for
information pertaining to James Howard Guerin, however, no explanation
was offered to justify the need for fifteen years to conduct an
unsuccessful initial search for such a clear FOIA request. Additionally,
it seems likely that the CIA would have documents on Guerin, a
man convicted of smuggling $50 million in arms into South Africa
and a total $1.4 billion in international fraud. Guerin was directly
tied to U.S. intelligence agencies and maintained a longstanding
relationship with the former head of the NSA.
Overall, four of the ten oldest pending FOIA requests in the
federal government identified in the 2003 Audit were identified
as still currently pending. This figure does not include several
1987-89 requests that were provided by agencies in both 2003 and
2005 as among their oldest requests, but were either requests
received on referral from other agencies or requests suspended
for several years in litigation. Such requests, despite their
age, are counted in the Archive's audits from the date the requests
were received by the agency that provided the requests to the
Archive, not the date of the initial request letter. The inter-agency
referral system is a significant source of delay, but the Archive
chose not to attribute such delays to the agency ultimately responsible
for processing the request. As for legal battles, the length and
reason for the delays is fact-specific and not necessarily a sign
of agency non-responsiveness. It is also important to keep in
mind, though, that these 1987-1989 requests asked the government
for documents before the collapse of the Soviet Union, and the
requesters are still waiting for a response.
The data generally shows that the FOIA backlog problem has not
improved over the past three years. Most agencies have a similar
backlog today as they did in 2003. By analyzing the age and date
range of the ten oldest requests provided, the
Archive ranked agencies that have reduced their backlog, maintained
the same backlog, or increased their backlog. The
data shows that some agencies successfully processed all of their
oldest requests since the Archive's initial Audit and maintain
a less significant backlog. Most agencies, however, maintain a
backlog similar to or older than in 2003, and several continue
to fail at processing their oldest requests, some of which date
back ten or fifteen years.
Other highlights of the Archive's 2005 FOIA Audit include:
- Six agencies or components have the same single oldest
request today that they had in 2003: Air Force Education
and Training (Oldest request from June 1994), Air Force Materiel
Command (May 1999), Central Intelligence Agency (May 1987),
Department of Defense (January 1987), DOT/Federal Aviation Authority
(February 1997), and the National Archives and Records Administration
(March 1990).
- Agencies have not established adequate FOIA request
tracking systems. In their latest responses, some agencies
identified requests that should have been included in their
2003 ten oldest requests response, but for unknown reasons such
requests were not identified as pending even though their dates
indicate they were open and pending in 2003. For example, the
Defense Intelligence Agency's current ten oldest included requests
dated October 19, 1995, March 18, 1996, June 4, 7, 8 and June
12 1996. These requests were pending in 2003 and should have
been considered as some of the oldest requests at the agency
in 2003, but were not provided to the Archive in 2003 as part
of the DIA's 10 oldest requests. The DIA provided other younger
requests in 2003, including an August 1, 1996 letter. Similarly,
the Department of Energy reported its oldest request in 2005
was a July 16, 1990 request, but in 2003 it reported its oldest
was dated May 14, 1991. A similar situation is reflected in
the National Archives, FBI and Securities and Exchange Commission
responses, which in 2005 included requests that should have
been, but were not, part of their 2003 responses. All of these
requests referenced in this paragraph were sent directly to
the agency and were not held up in an interagency referral system.
These disparities between the 2003 and latest response may reflect
improved agency FOIA recordkeeping or may indicate that agencies
are generally failing to adequately and consistently track their
FOIA requests.
- Agencies are failing to effectively administer their
FOIA programs and communicate with requesters. Agency
records regarding pending FOIA requests are not consistent with
requesters' expectations. Some agencies' ten oldest requests
fail to reflect requests that FOIA requesters believe are open
and being processed. For example, the Archive never received
a response from the DOT/Federal Railroad Administration (FRA)
in response to its request for the oldest pending requests at
FRA in 2003. A new request was filed with FRA in 2005 for copies
of their oldest requests as of 2005, but FRA's response did
not include the Archive's pending 2003 request, which would
have been its oldest request. Additionally, Army Intelligence
and Security Command, one of the agencies that showed the greatest
backlog reduction between 2003 and 2005, according to their
responses to the Archive's Audit requests (from October 1989
- October 1999 in 2003 to December 1996 - April 2005 in 2005),
did not include several requests the National Security Archive
believes are still open and pending. National Security Archive
records indicate that over 30 requests are pending with Army
Intelligence and Security Command that pre-date April 2005 and
thus should be part of the response. Discrepancies between agency
data and requester data supports the conclusions that the tracking
and monitoring of FOIA administration is not being adequately
conducted at certain agencies and that there is not enough communication
between requesters and agencies over aging FOIA requests.
- Withholding information under the FOIA is a subjective
process and the Audit revealed a rise in secrecy from 2003 to
2005. In several cases the same requests were released
in 2003 and again in 2005 with different excisions. Where the
same records were released during both surveys, they often contained
more information in their 2003 form. The 2005 responses brought
not just different excisions, but also more extensive withholding
claims. This is the case with records released by the National
Archives, Air Force Materiel Command, the Securities and Exchange
Commission, and the FBI. These differences highlight both the
inherent subjectivity in the review and redaction process, and
suggest a greater tendency to withholding information from the
public in 2005 than in 2003.
- Agencies lose FOIA requests. Eleven out of
64, or 17.2 percent of initial requests sent by the National
Security Archive for the 2005 Audit were reported by agencies
as never received. The Archive sent these requests via fax or
e-mail and always used the FOIA contact information provided
by the agency on their website. In spite of confirming that
the Archive had the correct contact information and had followed
agency instructions regarding submitting a FOIA request, a remarkably
high percentage of agencies - 17.2 showed no record of ever
receiving the initial request.
- Despite the passage of eleven months, several agencies
failed to respond to the Archive's request for copies of their
ten oldest pending FOIA requests. Furthermore, several
of these agencies are the same agencies that failed to process
the same Archive FOIA request in 2003. These include the Department
of State, the U.S. Coast Guard, and the Department of Labor.
Agencies that were able to respond in 2003, but failed to fulfill
the Archive's 2005 request in spite of the passage of a comparable
timeframe, include the Agency for International Development,
U.S. Central Command, Health and Human Services, and the Office
of Personnel Management. The Archive has not been able to determine
whether these agencies are incapable of identifying their ten
oldest requests or if these agencies are so under-resourced
that they cannot even come close to meeting the FOIA's time
limits.
In the two years since the Archive's 2003 report, there have
been several hearings in Congress about FOIA and various proposals
for FOIA reform. Most recently, on December 14, 2005 President
George W. Bush issued Executive Order 13392, "Improving Agency
Disclosure of Information." In the Executive Order, the President
ordered agencies to implement citizen-centered FOIA operations
and sought to ensure senior official oversight of FOIA processing
by ordering the appointment of a Chief FOIA Officer at the Assistant
Secretary or equivalent level. The Executive Order has been greeted
with a mixed reaction by the public, in part because the Administration's
only other broad guidance on FOIA was Attorney General Ashcroft's
October 2001 Memorandum encouraging greater use of FOIA exemptions
and reduction in discretionary releases. Because the Executive
Order strongly suggests that agencies will not be given additional
resources to solve the problems they have been unable to solve
over the FOIAs 40-year history, it is hard to imagine that dramatic
changes will result. Moreover, because the Executive Order keeps
the entire process of identifying problems and setting milestones
for improvement within the agencies, it is hard to imagine the
resulting goals will be very ambitious. As Senator John Cornyn
(R-TX) stated, the Executive Order should not be seen as anything
more than a "first step."
The Archive's Audit reveals problems far more systemic and extensive
than the customer service concerns that E.O. 13392 addresses.
Although it certainly is important to have the President reaffirm
the government's commitment to transparency and responsiveness
to Freedom of Information Act requests, a more fundamental change
to FOIA administration may be needed than what is provided in
the Executive Order. Based on these FOIA Audits the National Security
Archive makes five general recommendations regarding FOIA processing.
FOIA
Backlog Audit Findings and Recommendations
The Archive's Audit supports the need for additional steps forward
to ensure that agencies comply with their obligations to the American
public. Without real consequences, agencies have been allowed
to let requests languish for over a decade, maintain faulty FOIA
tracking systems, and at times simply be unresponsive and unhelpful
to legitimate requests for information. The Archive's primary
recommendations include:
Recommendation 1: Government agencies
should consider FOIA processing as central to their mission
and as a duty to the American democracy. FOIA program functioning
should be considered a factor in personnel performance reviews
in order to compel government agencies to recognize the FOIA's
importance to the functioning of the agency and the U.S. government. |
Background: There is a Need for High-Level Endorsement of
the FOIA and Recognition of FOIA Programs in Personnel Performance
Reviews - Currently, too many agencies consider the FOIA a
distraction from their missions and underfund or even marginalize
the work of their FOIA personnel. The Executive Order begins to
address this issue by making top agency officials responsible
for FOIA performance. However, those senior agency officials need
to recognize the importance of the Freedom of Information Act
and endorse comprehensive and efficient FOIA processing by their
agencies. Adopting Senators Cornyn and Leahy's amendment to the
FOIA proposed in the drafted February 2005 Open the Government
Act, which "requires the Office of Personnel Management to
examine how FOIA can be better implemented at the agency level,
including an assessment of whether FOIA performance should be
considered as a factor in personnel performance reviews, whether
a job classification series specific to FOIA and the Privacy Act
should be considered, and whether FOIA awareness training should
be provided to federal employees," would emphasize the importance
of the FOIA within agencies.
Recommendation 2:
The new Agency Chief FOIA Officer should implement a comprehensive
FOIA tracking system and insist that agency FOIA personnel
be vigilant about tracking and systematically processing all
FOIA requests. |
Background: The Quality of Handling, Tracking and Monitoring
FOIA Requests Varies Immensely - Over 17% of agencies included
in this Audit reported they never received the original April
2005 FOIA request, although the Archive had confirmed that the
request was sent to the right e-mail address or fax number, and
contained the correct information necessary for processing. This
indicates that as many as one in six FOIA requests is never properly
received and processed by agencies. Additionally, some requests
were processed in two days, while others remain pending over 200
days later. This discrepancy in response times illustrates how
disparate the quality of FOIA service can be for requesters.
Recommendation 3:
Congress should require agencies to report average processing
times and provide a date range from the oldest pending request
to youngest, in addition to median processing statistics in
order to provide a more representative picture of agency backlogs
for Congress and the public. |
Background: The Annual FOIA Reports Mask the Seriousness of
the FOIA Backlogs - Because the annual reports only require
agencies to provide the median age of their pending requests,
their oldest requests are masked by numerous newly-received requests.
The Archive found that the ten oldest FOIA requests were often
far older than would be imagined from the reported agency statistic
for "Median Days To Process." Furthermore, FOIA officers
are trained to process as many requests as possible as fast as
possible. Complex requests, which may contain valuable information,
can be pushed aside for years.
Recommendation 4: The current
FOIA monitoring systems set up by Congress and most agencies
emphasize quantity over quality. FOIA offices are not rewarded
or recognized for processing time-intensive requests. Agencies
should be recognized for processing complex requests, not
rewarded for putting difficult requests aside indefinitely.
Congress should assign penalties for extraordinary processing
delays. |
Background: Agencies Are Rewarded for Quantity, Not Quality
- FOIA officers are trained to process as many requests as possible,
as quickly as possible. Although the Archive supports multi-track
processing in which simple requests can be processed ahead of
complex ones, agencies have been allowed to exploit the system
and can indefinitely delay processing certain complex requests
for five, ten or more than fifteen years.
Recommendation 5: Spending on
Freedom of Information Act programs at federal agencies should
be directly tied to budgets for public affairs offices and
spending on public relations campaigns. Agencies spend significantly
more money marketing their own messages than they invest in
processing public requests for information regarding the activities
of the agency. Congress needs to mandate that a sizable percentage
of the public affairs budget (30-40%) be spent on FOIA programs.
It is clear from this Audit that current public demand for
information is exceeding processing capacity. |
Background: Most Agency FOIA Programs Lack the Resources to
Response in a Timely Manner to Requests - It is clear that
many agency FOIA programs are not adequately funded. The data
collected in this Audit illustrates how these agencies are unable
to process their oldest pending requests, in some cases even after
nearly two decades has passed. The public need for information
from these agencies exceeds their processing capabilities. On
the other hand, government Public Affairs Offices and public relations
campaigns are well-funded and fully supported by the agency to
publicly disseminate official agency information.
Exact government expenditures on public affairs activities are
unavailable because agencies do not traditionally calculate the
total costs of these programs in annual budgets. (Note
1) In 2005, the Congressional Research Service roughly estimated
the government's annual spending on advertising, "a subset
of public relations and communications," at over $1 billion.
A recent study conducted by the United States Government Accountability
Office (GAO) found that seven federal agencies (Note
2) collectively spent more than $1.6 billion on contracts
with public relations firms, advertising agencies and other media
entities over two and a half years between 2003 and 2005. (Note
3) This figure only estimates what a few agencies have spend
on outside media contracts and does not include internal agency
expenditures on public affairs and media activities. On the other
hand, the entire federal government spends between $300-400 million
annually processing Freedom of Information Act requests. (Note
4) The total government expenditure on the FOIA for the past
two and a half years is less than what seven agencies spent on
contracts to public relations firms distributing official government
information and improving agency images.
Notes
1. Kevin P. Kosar, "Public Relations and
Propaganda: Restrictions on Executive Agency Activities,"
Congressional Research Service, RL32750 (Updated March 21, 2005)
2. GAO surveyed the Departments of Commerce,
Defense, Health and Human Services, Homeland Security, Interior,
Treasury, and Veteran's Affairs.
3. "Media Contracts - Activities and Financial
Obligations for Seven Federal Departments," United States
Government Accountability Office, GAO-06-305 (January 2006)
4. See "Summary of Annual FOIA Reports for
Fiscal Year 2003," U.S. Department of Justice Office of Information
and Privacy (July 29, 2004). Available at http://www.usdoj.gov/oip/foiapost/2004foiapost22.htm
and "Summary of Annual FOIA Reports for Fiscal Year 2002,"
U.S. Department of Justice Office of Information and Privacy (September
3, 2003). Available at http://www.usdoj.gov/oip/foiapost/2003foiapost31.htm
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