FIVE AGENCIES HAVE PENDING INFO REQUESTS OLDER THAN 15 YEARS; OLDEST PENDING SINCE 1987, 1988, 1989

The Knight Open Government Survey

For More Information Contact:
Tom Blanton/Meredith Fuchs, 202/994-7000

Posted - July 2, 2007

Findings: FOIA Backlogs Out of Control

Click here for a PDF version of the complete report

Press Release

Survey Highlights

Acknowledgements

Introduction: The Waiting Game

Findings: FOIA Backlogs Out of Control

Conclusion: FOIA Needs Reform

Methodology

Appendix 1: Glossary of Agency Acronyms

Appendix 2: Distribution of Ten Oldest FOIA Requests by Agency

Appendix 3: Comparison of the Archive's 2005 and 2007 Ten Oldest Audits

Appendix 4: Oldest Pending FOIA Requests

Appendix 5: FOIA Requests Pending 15 Years or More

File Not Found
Agencies Violate Law on Online Information
(March 12, 2007)

Pseudo-Secrets
A Freedom of Information Audit of the U.S. Government's Policies on Sensitive Unclassified Information
(March 14, 2006)

A FOIA Request Celebrates Its 17th Birthday
A Report on Federal Agency FOIA Backlog
(March 12, 2006)

Justice Delayed is Justice Denied
The Ten Oldest Pending FOIA Requests
(November 17, 2003)

The Ashcroft Memo
"Drastic" Change or "More Thunder Than Lightning"?
(March 14, 2003)

Even though President Bush directed agencies in Executive Order 13,392 more than 18 months ago to reduce FOIA backlogs, the Archive's analysis of the ten oldest FOIA requests pending at 87 federal agencies and components found that not much has changed. Some agencies have closed old cases, but several agency FOIA programs are still mired in backlogs. Despite the Executive Order, little progress has been made since our last audit with respect to the age of the oldest requests. Specific findings include:

Agency backlogs are significant; the oldest FOIA request in the federal government has now been pending for more than 20 years.

• Of the 57 agencies and components that responded to our January 29, 2007, FOIA request, 53 reported backlogs. (Note 9) Twelve of the agencies that responded had requests pending ten years or more. (Note 10) Of those 12, five had requests pending 15 years or more. (Note 11)

• Of the 507 requests provided to the Archive in response to its 2007 FOIA request, only 20 had been pending 20 business days or less. The remainder had been pending anywhere from 21 business days to over 4,000 business days, well beyond the statutory response time of 20 business days. The majority of the agencies' oldest requests were filed between 2000 and 2006. However, we also identified 97 requests filed in the 1990s and seven requests filed in the 1980s. (See Appendix 2.) These results include only the ten oldest pending at each agency. The total number of requests still pending from each of those decades may be significantly higher.

• The oldest pending FOIA request we identified was submitted to the Department of State on May 5, 1987. (Note 12) This now 20-year-old FOIA request, filed on behalf of the Church of Scientology, sought all documents from the State Department offices responsible for the Vatican and Italy related to the Church of Scientology or "cults."

• Other requests pending for several years were for documents related to the steel industry in Luxembourg, the 1986 Nobistor incident in which a ship containing U.S. mercenaries on a mission to Ghana was intercepted, the 1961 Berlin Crisis, the South African steel industry, the Iran-Contra Affair, and Armenian genocide during WWI. (See Appendix 5.) One requester, Don Stillman, filed his request in 1991 with the State Department for documents that asked the Overseas Private Investment Corporation (OPIC) to cut off programs involving the then military regime in South Korea. These documents were related to an OPIC case brought by the United Auto Workers union. Although Mr. Stillman won his case in 1991, his FOIA request remains unprocessed.

Five agencies are responsible for the 17 FOIA requests that have been pending 15 years or more.

• Ten of the 17 requests pending 15 years or more were originally sent to the Department of State. All of these cases are pending consultation with other agencies. This illustrates the difficulty many agencies face when they are forced to send documents to other agencies for review: requests can languish for years because the sending agency has no way to compel the receiving agency to respond in a timely manner.

• The Department of Justice, which has been charged with general oversight of FOIA government-wide and has been highly critical of the need for legislative solutions to reform FOIA, is responsible for four of the 17 requests. Three of the requests were sent to Department of Justice's Criminal Division, and one was sent to the Federal Bureau of Investigation.

• The Department of the Air Force is responsible for two of the 17 requests, both of which are National Security Archive requests. In 2005, the Archive sued the Air Force over its poor FOIA responsiveness. Judge Rosemary Collyer of the federal district court in Washington, D.C. concluded in her April 2006 decision that the Air Force had "failed miserably to handle Archive FOIA requests in a timely manner" and "engaged in a pattern or practice of failing to make timely determinations on its FOIA requests and appeals." (Note 13)

• Agencies with requests older than the range reported to Congress Air Force Central Intelligence Agency Department of Agriculture-APHIS Department of Commerce Department of Justice-Office of Information and Privacy* Department of State Department of Treasury Federal Bureau of Investigation National Science Foundation Office of the Director of National Intelligence

  The Central Intelligence Agency is responsible for one of the 17 requests pending 15 years or more. In its FY 2006 Annual FOIA Report to Congress, the CIA reported that its oldest pending FOIA request was from February 1992; however, in response to the Archive's "Ten Oldest" FOIA request, the CIA reported that its oldest pending request was filed on July 7, 1989. Interestingly, five days after providing its "Ten Oldest," to the Archive, the CIA fulfilled a 1992 Archive request for the CIA's "Family Jewels," stating in its response letter that this request "was, in fact, the oldest in [their] backlog." (Note 14)

Mandatory agency reports to Congress about their range of pending requests failed to disclose some of the oldest requests.

• Requests reported to the Archive in 2007 by ten agencies were older than the range of pending requests reported to Congress in the agencies' FY 2006 FOIA Annual Reports. These agencies include: Department of Agriculture APHIS, Department of Commerce, Central Intelligence Agency, Department of the Air Force, Federal Bureau of Investigation, Department of Justice Office of Information and Privacy [see clarification]*, Department of State, Department of the Treasury, National Science Foundation, and the Office of the Director of National Intelligence. (See Appendix 4.)

Agencies found older requests than those they had reported to the Archive two years ago.

• Of the 40 agencies that responded to both the Archive's 2005 and 2007 FOIA requests, four agencies reported requests in 2007 that were older than those identified two years ago. (Note 15) Additionally, 17 agencies provided requests that were within the range of dates of those requests provided to the Archive two years ago, and so should have been reported for the 2005 audit, but were not. (Note 16) These discrepancies indicate a larger problem with how agencies track their FOIA requests. If agencies are unable to locate and provide information about pending requests, some nearly two decades old, this raises questions on how these agencies could be effectively processing these requests.

Executive Order 13,392 has not fixed the problem of FOIA backlogs.

• Although E.O. 13,392 has raised the profile of the FOIA backlog problem within agencies, its impact on improving FOIA processing and reducing backlogs government-wide has so far proved negligible. The FOIA improvement process is self-directed by the very agencies who failed to design adequate FOIA programs and includes no mandates or enforcement mechanisms. The Department of Justice has reported that 41% of agencies have failed to meet one or more of the milestones set under the Executive Order. (Note 17)

• Of the 26 agencies that set backlog reduction goals for 2006, seven failed to meet at least one of their goals. (Note 18)

• The Archive reviewed all 90 FOIA improvement plans issued under E.O. 13,392 and found that several plans included backlog reduction goals that were overly simple or lacked actual long-term goals, such as evaluating the FOIA backlog situation and considering approaches to reduce the backlog (Environmental Protection Agency), or reviewing and analyzing the FOIA backlog at the end of each year (National Science Foundation). Other goals were significantly more ambitious: reducing the backlog of FOIA cases over one year old by 50% (Department of Energy), or eliminating the FOIA backlog by 2008 (Department of Homeland Security and Department of the Interior.)

• Wait out the Requester: Department of Treasury Approach to the FOIA Backlog Oldest pending FOIA request reported to the Archive in 2005: 5/20/1992 Oldest pending FOIA request reported to the Archive in 2007: 5/20/1992 Oldest pending FOIA request reported to Congress, FY 2006: 3/5/1993 Oldest pending Archive FOIA request to Treasury: 3/17/1987 Number of requests for which Treasury asked the Archive two or more times if it was still interested: 27 Number of times Treasury has asked the Archive to re-send a copy of the pending FOIA request since the "request letters may have been among files that were destroyed in error": 42

  Some agencies are taking a "wait out the requester" approach to backlog reduction. Rather than processing older requests, some agencies may simply be hoping requesters will lose interest and eventually withdraw their requests. In some cases, agencies expend time and resources reaching out to determine whether the requester has lost interest in their request rather than actually processing the request. (Note 19) The longer a request languishes without being processed, the more likely the requester will no longer need or be interested in the data sought. A FOIA program that simply pushes papers and does not release any information of significance costs the taxpayer money without providing the desired benefit of improved government accountability. Administrative closures do not fix FOIA processing deficiencies. (Note 20)

Interagency delays contribute to the ongoing backlog problem.

• Consultations with and referrals to other agencies and components continue to add significant delays to the FOIA process. Based on the data provided in agencies' FY 2006 FOIA Annual Reports to Congress, 25 agencies had a backlog of requests pending consultations with other agencies. Of these, 14 had requests pending one year or more. One agency, the Department of State, has a request that has been pending for 18 years and is awaiting consultation with another agency. (Note 21) Often in the same position as requesters, agency FOIA officials have no way to compel other agencies or components to process requests that they have forwarded for consultation. Requests languish awaiting a response from another agency, and the delays experienced by requesters are compounded.

One-third of agencies failed to respond to the Archive's 2007 FOIA request, and some still have not responded to the Archive's 2005 request.

• Though the Archive's Ten Oldest FOIA request is a simple request that asks for information agency FOIA offices should be tracking and have at their disposal, several agency responses to our FOIAs are long overdue. Twenty-six agencies failed to respond to the Archive's January 2007 FOIA request, and 12 agencies have yet to respond to the Archive's April 22, 2005, FOIA request. (Note 22) Of the 57 agencies that responded to our 2007 request, less than half (20 agencies) responded within 20 business days of the date of our request. For example, though the Department of Veterans Affairs claimed in its FY 2006 annual FOIA report to Congress a median processing time of 73 business days for complex requests, it has never responded to the Archive's 2005 FOIA request and took 84 business days to respond to the Archive's 2007 FOIA request. The U.S. Coast Guard claims a median processing time of 12 business days for simple requests and 46 business days for complex requests, yet it failed to respond to the Archive's 2005 and 2007 FOIA requests, which have been pending 550 and 105 business days, respectively.

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Notes

9. Only four agencies reported no backlog of pending FOIA requests. They are: Small Business Administration, Department of Army Materiel Command, Naval Education and Training Command, and Department of Labor Employee Benefits Security Administration.

10. Department of Defense, Department of the Air Force, Defense Intelligence Agency, Department of Justice Criminal Division, Department of State, Department of the Treasury, and the National Archives and Records Administration each had ten requests pending ten years or more. The Federal Bureau of Investigation had seven requests pending 10 years or more. The Central Intelligence Agency and the Department of the Air Force's Air Combat Command each had three requests pending ten years or more. The United States Army Intelligence and Security Command and the Environmental Protection Agency each had one request pending ten years or more.

11. The Department of State had ten requests pending 15 years or more. The Department of Justice's Criminal Division had three requests pending 15 years or more. The Department of the Air Force had two requests pending 15 years or more. The Central Intelligence Agency and the Federal Bureau of Investigation each had one request pending 15 years or more.

12. In our previous "Ten Oldest" audit, we identified the Department of Defense (DOD) as the Agency with the oldest pending FOIA request in the federal government. We are pleased to note that DOD completed processing of this January 31, 1987, FOIA request in December 2006. The Department of State did not respond to our requests submitted in 2003 and 2005, so its now 20-year-old request is first reported here.

13. For information on the Archive's lawsuit against the Air Force, see www.gwu.edu/~nsarchiv/news/20050318/index.htm. For information on Judge Collyer's decision, see www.gwu.edu/~nsarchiv/news/20060419a/index.htm

14. Letter from Scott Koch to Malcolm Byrne, National Security Archive, June 25, 2007.

15. Transportation Security Administration (one request), the Department of Navy's Pacific Command (five requests), the Federal Bureau of Investigation (two requests), and the Environmental Protection Agency (one request).

16. Transportation Security Administration (three requests), Department of Agriculture APHIS (nine requests), Department of Commerce (one request), Department of Defense (one request), Department of the Air Force (three requests), Department of the Air Force's Air Combat Command (two requests), Department of the Air Force's Air Mobility Command (six requests), United States Central Command (one request), United States Army Intelligence and Security Command (nine requests), Defense Intelligence Agency (two requests), Department of the Navy Pacific Command (ten requests), Federal Bureau of Investigation (seven requests), Department of Justice Office of Information and Privacy (one request), Department of Homeland Security Federal Emergency Management Agency (one request), Department of the Treasury (eight requests), General Services Administration (three requests), National Archives and Records Administration (four requests).

17. Attorney General's Report to the President Pursuant to Executive Order 13,392, Entitled "Improving Agency Disclosure of Information," June 1, 2007.

18. The Agency for International Development planned to eliminate its entire pre-2005 backlog. Due to contracting issues, it was able to close only 87% of its pre-2005 cases. The Central Intelligence Agency set a goal of closing 10% of its overall backlog by the end of FY 2006. It eliminated 8% of the backlog. The Drug Enforcement Agency planned to reduce its backlog by 2%. However, due to budget constraints and a lack of human resources, it was unable to meet this goal. The Department of Transportation's Federal Motor Carrier Safety Administration set a goal of closing out requests from 2005 and earlier by the end of FY 2006. Due to the complexity of one of the cases, it has been unable to meet this goal. The Department of Education (ED) planned to implement a policy of closing its ten oldest FOIA requests annually. This goal was pushed back to March 2007. It is not clear whether ED has since implemented this policy. The Office of Science and Technology Policy planned to eliminate its FOIA backlog by the end of FY 2006. This goal has been pushed to August 31, 2007. The Department of Health and Human Services (HHS) planned to complete processing of all FOIA requests from FY 2004 and earlier. Of all the HHS components, only the National Institutes of Health was able to meet this goal.

19. For example, the Department of the Treasury (TRE) FOIA Improvement Plan indicates that TRE planned to tackle both the front end (incoming requests) and back end (administratively stagnant requests) of its backlog with the goal of reducing the backlog ten percent by January 1, 2007. Success is to be measured by the number of closed cases. Over the course of the past year, the Archive has received several letters from TRE asking the Archive to inform TRE whether it is still interested in its long-pending requests. The letters stated that if TRE did not receive a response within 15 business days, the requests would be closed. For 27 of these requests, this was the second time TRE had inquired whether the Archive was still interested; and for one of the cases, it was the third time. In at least 42 instances, TRE asked the Archive to resubmit the original FOIA request because our "request letters may have been among files that were destroyed in error." This seems to indicate that, rather than processing the "administratively stagnant" requests, Treasury hopes to deal with these requests by simply closing them. In its FY 2006 Annual Report to Congress, TRE reported that sixty requests were withdrawn by requesters and 48 were closed because of "no response from requester." (The "no response from requester" category is new to TRE's FOIA annual reports.)

20. It is difficult to determine exactly how many requests government-wide have been closed due to lack of requester interest after several years. This is a study that could be conducted by the Government Accountability Office.

21. The Department of State did not include in its FY 2006 annual FOIA report to Congress the May 5, 1987, request reported to the Archive. This request has been pending consultation with other agencies for over 20 years.

22. These agencies are: the U.S. Agency for International Development, Citizenship and Immigration Services (DHS), Customs & Border Protection (DHS), U.S. Coast Guard (DHS), Immigration and Customs Enforcement (DHS), U.S. Army Materiel Command (DOD), U.S. Army Criminal Investigation Command (DOD), Employment and Training Administration (DOL), Occupational Safety and Health Administration (DOL), Department of State, Department of Health and Human Services, and the Office of Personnel Management.

* CLARIFICATION:  The Department of Justice's Office of Information and Privacy (OIP) has informed the Archive that the October 22, 2001 request reported as OIP's oldest was first received by the DOJ-OIP on February 5, 2002.  OIP indicated that the request was not delayed by intra-agency routing, but likely was delayed as a result of the Anthrax mail screening program that took place in 2001-2002.  Because agencies calculate their response time from the date of receipt of the request, OIP's report to Congress listing its oldest pending request as dating from February 5, 2002 is not inaccurate.