It has been forty years since the Freedom of Information
Act (FOIA) went into effect, yet the FOIA system continues to
be plagued by delay and backlogs. When Congress passed the FOIA
in 1966, the law did not set a deadline for agencies to respond
to FOIA requests. In 1974, after years of agencies failing to
process FOIA requests, Congress amended the FOIA to require agencies
to respond in ten business days. Even then, courts routinely allowed
agencies to delay processing under Open America v. Watergate
Special Prosecution Force (Note 1) and subsequent
cases. Agencies' persistent failure to meet the ten-day deadline
led Congress to extend it to 20 business days in 1996. (Note
2) The legislative history reflects Congressional disapproval
of the Open America case. Nevertheless, the courts have
continued to allow agencies to delay processing for several years.
Congress has never approved of agencies delaying responses as
long as five, ten, fifteen, or even twenty years, as has been
the case. For most federal agencies, meeting the statutory 20
business day response time is an exception rather than a standard
practice.
The extent of the delay problem has always been difficult to
ascertain, despite congressionally mandated annual reports about
FOIA processing. The National Security Archive (the Archive) set
out in 2003 to determine just how bad the government-wide backlog
had become by looking at the ten oldest pending FOIA requests
at 52 federal agencies and components. The Archive's first report,
"Justice Delayed is Justice Denied: The Ten Oldest Pending
FOIA Requests," was released in November 2003, and found
requests as old as 16 years. The second report, "A
FOIA Request Celebrates its 17th Birthday: A Report on Federal
Agency FOIA Backlogs," issued in March 2006, followed the
same methodology to determine whether any progress had been made
in backlog reduction. The 2006 audit found that, in some cases,
agency backlogs were worse than in 2003; in others, requests that
agencies reported as their oldest in 2003 were still pending three
years later. (Note 3) Both audits demonstrated
that agencies' annual reports to Congress failed to convey the
scale of the backlog problem.
On December 14, 2005, President Bush issued Executive Order 13,392
on "Improving Agency Disclosure of Information." Among
other mandates, the Order calls for Agencies to review their FOIA
programs and "identify ways to eliminate or reduce [their]
FOIA backlog, consistent with available resources and taking into
consideration the volume and complexity of the FOIA requests pending
with the agency." (Note 4) The Executive
Order directed agencies to develop plans and establish goals to
improve FOIA processing. In its guidance on E.O. 13,392 implementation,
the Department of Justice's Office of Information and Privacy
stressed that the reduction or elimination of backlogs should
be a "major underpinning" of the improvement plans for
those agencies with FOIA request backlogs. (Note
5) The guidance also instructed agencies to include in their
annual FOIA reports to Congress information on the time range
of their pending requests. (Note 6)
A review of the FOIA improvement plans drafted pursuant to the
Executive Order shows that the Archive's previous "Ten Oldest"
audits had an impact on agency backlog goals. Some agencies specifically
stated they would try to close their ten oldest pending FOIA requests
annually. (Note 7) Additionally, in his report
to the President on the agencies' FOIA improvement plans, the
Attorney General cited the Archive's Ten Oldest audits and reported
on the progress made by agencies in closing the oldest requests
exposed by the Archive. (Note 8)
The Archive's latest "Ten Oldest" audit, "40 Years
of FOIA, 20 Years of Delay: Oldest Pending Freedom of Information
Requests Date Back to the 1980s," surveys 87 agencies and
major components and finds that extensive backlogs persist. Requests
from as early as 1987 are still waiting to be processed 20 years
later. Additionally, some agencies have located pending requests
older than those reported to the Archive in 2003 and those reported
to Congress as recently as this year, suggesting not only a broken
system, but one immersed in confusion and disarray.
Notes
1. 547 F.2d 605 (D.C. Cir. 1976).
2. Electronic Freedom of Information Act Amendments
of 1996, P.L. 104-231.
3. See "Justice
Delayed is Justice Denied: The Ten Oldest Pending FOIA Requests,"
The National Security Archive, November 17, 2003; and "A
FOIA Request Celebrates its 17th Birthday: A report on Federal
Agency FOIA Backlogs," The National Security Archive,
March 2006.
4. E.O. 13,392, "Improving Agency Disclosure
of Information," December 14, 2005.
5. See Department of Justice, Office of Information
and Privacy, "Executive Order 13,392 Implementation Guidance,"
FOIA Post, 2006.
6. Ibid.
7. These include the Department of Education,
Department of Commerce, Department of Justice, Department of the
Treasury, Department of Veterans Affairs, and the Social Security
Administration. The Office of the U.S. Trade Representative set
as one of its goals closing its three oldest requests annually,
and the National Aeronautics and Space Administration indicated
it would strive to close its five oldest requests each year.
8. The "Attorney General's Report
to the President Pursuant to Executive Order 13,392, Entitled
'Improving Agency Disclosure of Information'" failed to address
adequately many of the problems and challenges facing the FOIA
program and the improvement plan process. The National Security
Archive responded to the report by providing the Attorney General
and Congress with a critical assessment of some of the serious
challenges not acknowledged in the Report and calling for congressional
oversight hearings to make optimistic FOIA processing goals a
reality. (The Archive's response can be viewed at: www.gwu.edu/~nsarchiv/news/20061019/index.htm)
