Washington, DC, March 13, 2009 – The Federal Bureau of Investigation (FBI) today won the fifth annual Rosemary Award for the worst Freedom of Information Act performance by a federal agency. The FBI’s reports to Congress show that the Bureau is unable to find any records in response to two-thirds of its incoming FOIA requests on average over the past four years, when the other major government agencies averaged only a 13% “no records” response to public requests.
Given annually during Sunshine Week by the Emmy- and George Polk Award-winning National Security Archive at George Washington University, the Rosemary Award recognizes outstandingly bad responsiveness to the public that flouts the letter and spirit of the Freedom of Information Act. The Award is named after President Nixon’s secretary Rose Mary Woods and the backwards-leaning stretch with which she erased an eighteen-and-a-half minute section of a key Watergate conversation on the White House tapes.
“The FBI knowingly uses a search process that doesn’t find relevant records,” commented Tom Blanton, the director of the Archive. “Not only does this woeful performance lead to unnecessary litigation, but the Bureau apparently uses the same searches in its criminal investigations as well.”
During fiscal year 2008, the FBI gave “no records” responses to 57% of the requests it processed, more than any other major agency. The Bureau only provided documents (most redacted) in less than 14% of cases—the lowest percentage of requests granted among the major agencies in the federal government. In 2007, the FBI responded with “no records” in 70% of its FOIA requests. In 2006, “no records” peaked at 74%; and in 2005, at 66%—the four-year average.
A recent declaration submitted in federal court by FBI FOIA chief David M. Hardy shed some light on these dreadful statistics. Hardy explained that FBI files are indexed only by reference terms that have to be manually applied by individual agents (although Hardy also admitted that agents don’t always index all relevant terms). And unless a requester specifically asks for a broader search, the FBI will only look in a central database of electronic file names at FBI headquarters in Washington. This search will miss any internal or cross-references to people who are not the subject of an investigation, any records stored at other FBI offices around the country, and any records created before the 1970s, which are stored in paper form and only indexed using a manual card catalog. When requesters send their requests directly to relevant field offices for processing, the FBI’s policy is to automatically route all requests back to headquarters for the same inadequate search. Until the requester files suit in federal court, the FBI will not perform a broader search.
“Modern information processing uses search algorithms and full-text retrieval to find and rank search results,” said Blanton. “The FBI’s process in contrast is designed to send FOIA requesters away frustrated, and no doubt has the same effect on the FBI’s own agents.”
The Archive has tracked FBI and other federal agency FOIA performance for the last eight years through a series of government-wide audits supported by the John S. and James L. Knight Foundation. The Knight Open Government Surveys produced a series of recommendations that Congress adopted in the OPEN Government Act of 2007, which requires more accurate reporting by agencies and more responsive FOIA processing.
According to the FBI’s own reporting, the Bureau has also deterred requesters by making them wait—an average of 374 days (about a year) for complex requests, compared with the 20 days mandated in the FOIA. The FBI also has a longstanding practice of refusing to process requests for documents about a living individual without a signed privacy waiver from the person permitting the release of his or her records. Last year, this policy stopped in its tracks a student journalism project to learn about the murder of Wall Street Journal reporter Daniel Pearl in Pakistan—the FBI would not process their requests because they did not submit privacy waivers signed by captured 9/11 planner Khalid Sheikh Mohammed and convicted shoe bomber Richard Reid, among others.
The Archive presented last year’s Rosemary Award to Department of the Treasury for its “sub-prime performance,” including destroying old FOIA request files before answering the requests, repeatedly asking requesters to confirm their interest in long-pending requests before closing them, and sending files to the National Archives so it does not have to process requests for them. In 2007, the award went to the Air Force for losing scores of FOIA requests and requiring a lawsuit before beginning to fix its FOIA process. The 2006 Rosemary Award went to the Central Intelligence Agency for charging processing fees to media representatives for FOIA requests that CIA decided were not really “news.”
For more information about the FBI's FOIA practices:
Background Memo (National Security Archive)
DOJ Freedom of Information Act Annual Report FY2008
SAE Productions v. FBI, No. 07-0866 (D.D.C. 2007), Declaration of David M. Hardy (filed Nov. 28, 2007)
Loren Cochran, “Round and round and round with the FBI: Don Devereaux is caught in a bona fide FOIA loop-de-loop,” Reporters Committee for Freedom of the Press (Winter 2008)
Alex Heard, “The Department of Forgetting,” Slate Magazine (June 24, 2008)
Scott A. Hodes, “FOIA Facts: Understanding FBI Records,” LLRX.com (July 27, 2007)