Backlogs continue to plague FOIA programs across
the government. Despite some agencies' recent efforts to close
out old FOIA cases, the oldest requests continue to be left behind.
And although a case that has been pending for one or two years
is not as shocking as a case that has been pending five, ten,
or even fifteen years, it is still well beyond the statutory 20
business days response time. The extensive backlogs of both older
and newer requests call attention to the disturbing fact that
many requesters wait more time for a response than Congress prescribed.
Not even an Executive Order from the President has the power to
overcome decades of bureaucratic neglect. Agencies should not
be focusing on eliminating older cases at the expense of processing
newer FOIA requests. Comprehensive backlog reduction plans should
both aim to complete processing of old cases as well as improving
FOIA processing overall in order to stem the growing backlog of
more recent cases.
Agencies also need to improve FOIA tracking. Our audit found
several discrepancies in the data that agencies have reported
about their own FOIA programs. If agencies are unable to accurately
track pending FOIA requests, there is an increased risk of requests
falling through the cracks or languishing for months or years
awaiting consultation with other agencies or components. To this
end, FOIA reform legislation pending in Congress (Note
23) includes provisions to compel agencies to track FOIA requests
more accurately and keep tabs on their oldest pending cases. (Note
24) The Department of Justice has objected to this provision
in the proposed legislation. (Note 25) Yet,
as this report and the two prior Ten Oldest audits show, many
agencies do not adequately keep track of FOIA requests.
It is also clear that insufficient reporting requirements have
allowed agencies to conceal severe deficiencies in FOIA processing
for far too long. Both S. 849 and H.R. 1309 would require agencies
to report "data on the ten active requests with the earliest
filing dates pending at each agency, including the amount of time
that has elapsed since each request was originally received by
the agency," (Note 26) thus making the
metric pioneered by the Archive's Ten Oldest Audits standard reporting
procedure. This important step forward in reporting would help
both Congress and the public understand the scope of agency backlogs
and hold agencies accountable for the performance of their FOIA
Although E.O. 13,392 has been instrumental in raising the profile
of FOIA and FOIA backlogs at federal agencies, it is far from
a comprehensive solution to the problem. Many of the agencies
reviewed for this audit included backlog reduction as part of
their improvement plan goals. As indicated by some of the goals
already missed, lack of adequate personnel and insufficient resources
are roadblocks agencies encounter in tackling their FOIA backlogs.
In addition, currently there are no incentives in the FOIA to
spur agencies to be timely. S. 849 and H.R. 1309 would alter the
incentives to encourage agencies to process without delay. If
agency FOIA programs cannot succeed during a period of intense
public scrutiny under the mandate of a presidential executive
order, then stronger legislation is necessary. The public already
has been waiting 40 years for an effective access and disclosure
law. Waiting longer in the hope that things will improve is not
a solution to FOIA delay.
23. Freedom of Information Act
Amendments of 2007, HR 1309, 110th Cong., 1st sess., Cong.
Rec. 153 (March 5, 2007): H2164 (passed by a vote of 308-117
in the House on March 14, 2007); OPEN Government Act of 2007,
S 849, 110th Cong., 1st sess., Cong. Rec. 153 (March
13, 2007): S3066 (referred out of the Senate Committee on the
Judiciary April 30, 2007, with bipartisan support).
24. HR 1309, Sec. 7; S 846, Sec. 7.
25. See Department of Justice, Office
of the Assistant Attorney General, Letter from Acting Assistant
Attorney General Richard A. Hertling to Chairman of the Senate
Judiciary Committee the Honorable Patrick J. Leahy, March 26,
26. HR 1309, Sec. 9; S 846, Sec. 9.