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FINDINGS REGARDING ADMINISTRATIVE
PROCESSING OF FOIA REQUESTS
The Archive's initial findings regarding agency
processing of FOIA requests and agency backlogs raised great
concern. The FOIA process does not work well for the ordinary
FOIA requester. During the course of the audit the Archive encountered
a number of stumbling blocks and inconsistencies in the way
that each agency processes FOIA requests that make it extremely
likely that the average member of the public will be frustrated,
discouraged and ultimately unsuccessful in obtaining access
to federal government records. Fortunately there also are many
best practices that alleviate barriers to access, and the Archive
also highlights some of those practices in this report. The
problems the Archive identified include:
- Inaccurate or incomplete information about agency FOIA
contacts. During the course of the audit, the Archive made
its FOIA requests to those persons listed on the Department
of Justice's "Principal
FOIA Contacts at Federal Agencies" page. Then the
Archive was frequently told by the agencies involved that requests
and appeals should be transmitted to agency contacts other than
those available on the "Principal FOIA Contacts" page.
The information available on the DOJ "Principal FOIA Contacts"
page and on individual agency websites also occasionally included
inaccurate or incomplete listings of contact people, telephone
and fax numbers, and addresses. The Archive also sought contacts
on individual agency web pages and found that information provided
was also often deficient. The CIA FOIA page, for instance, provides
minimal contact information. It lists only:
Information and Privacy Coordinator
Central Intelligence Agency
Washington, D.C. 20505
There is no contact individual, telephone number or fax number,
and no appeal instructions or contacts for the CIA. There is
a contact listed for requests for retired files at the National
Archive and Records Administration. The DOJ "Principal
FOIA Contacts" page does include a phone number and contact
name for CIA, but also does not include a fax number.
The Central Command ("CENTCOM") website also was
deficient. There is no FOIA page link available from the CENTCOM
homepage and the single Annual FOIA Report posted on its FOIA
page is illegible. The FOIA site does provide a convenient e-mail
FOIA template, but, when the Archive attempted to send a FOIA
request to the listed e-mail contact, an error message was returned
indicating that the address linked was undeliverable. The phone
number listed as a contact on the website, (813) 828-6383 leads
to a disconnection recording that does not forward the correct
number. The correct number is (813) 828-6382. The website does
not list a fax number and although it does list the addresses
of the CENTCOM FOIA components, it does not provide a description
of the duties of these components and does not provide the name
of any contact individuals or telephone or fax numbers. It would
be quite difficult for an individual to submit a FOIA request
to an office whose listed FOIA phone number and e-mail contact
information are inaccurate and there is no given fax number.
The DOJ listing of the "Principal FOIA Contacts,"
does not provide any contact information for CENTCOM.
FOIA Requesters would be better served by an up-to-date, comprehensive
listing of FOIA contacts that specifies each contact's responsibilities.
Thus, a standard part of assigning FOIA responsibilities to
agency personnel should include updating the agency's FOIA contact
information available to the public.
- Failure to acknowledge requests. The Archive received
acknowledgments within the 20-business day statutory time limit
for a response to its Ashcroft Memorandum requests from only
15 of the 35 agencies. 12 agencies provided substantive responses
within the 20-business day limit. The only agency to both send
an initial acknowledgment and a substantive response within
the 20-business statutory time limit was the CIA. Although the
contents and the format of the initial acknowledgements varied
widely, various agencies included the following information
in acknowledgments: (1) agency tracking numbers; (2) actual
fee determinations or, at least a statement of fee policy; (3)
the name and contact information for a person, such as a FOIA
specialist, who could assist the requester; (4) the estimated
length of the backlog or position in the queue of outstanding
requests; (5) the requester's rights if the agency failed to
meet its statutory time limit for substantively responding to
the request; (6) an identification of the components that the
request was forwarded to; (7) a Privacy Act notice; (8) conditions
regarding the scope of the search; and (9) identification of
the "track" on which the request was placed, such
as the simple or complex track. Most acknowledgements were letters,
although the Department of Defense and the Department of Education
used lower-cost postcards.
Although the FOIA does not specifically require acknowledgment
short of a substantive determination within 20 days of the
submission of the FOIA request, it is clear from the Archive's
experience, that most agencies are unable to substantively
respond to an FOIA request within 20 days. Where an agency
is unable to meet its statutory obligation to respond within
20-days, an acknowledgment postcard has several benefits.
First, information about the components who will search for
records, the track the request is placed on, or the backlog,
give the requester tools to work with the agency to narrow
or focus a request, and to avoid unnecessary searches. The
acknowledgement thus opens a channel for communication between
the agency and the FOIA requester. Second, immediate assignment
of a tracking number and acknowledgment of requests may prevent
the problem of "lost" FOIA requests, as well as
provide a means for requesters and others to track the progress
of the request through the agency. Third, identification of
the components to which the request is referred is critical
for putting the FOIA requester in a position to know when
the processing has been completed and, if necessary, for appealing
an actual or constructive denial of records. These impacts
will both further the congressional intent to make disclosable
records readily available to the public and will tend to reduce
litigation against the agencies.
The use of a postcard probably is preferable than a letter
in most instances. The Department of Defense uses a postcard
to acknowledge all FOIA requests. The postcard can easily
be completed by the FOIA officer by hand and immediately place
it in the mail, without additional printing, folding, and
envelope-stuffing time. Moreover the cost of the postcards,
and the mailing of the cards, is lower than with other methods
of acknowledgment.
- Lost requests. Out of the 35 Ashcroft Memorandum requests,
three of the requests were not in agencies' FOIA processing
systems when appeals were filed 99-100 days after the requests
had been submitted. In each case the Archive confirmed that
it had transmitted the request to the correct contact. Thus,
9% of the requests were missing. One additional request that
was not in an agency's FOIA system was due to the Archive's
own error. Only one agency, the Veteran's Administration, conceded
that a request probably had been lost due to fax messages being
picked up by personnel other than the FOIA specialists. Discussions
with this and other agencies' FOIA offices disclosed conditions
that make lost requests a significant possibility. For example,
the Archive learned that some agencies do not have dedicated
contact points for FOIA requests. The Department of Education
informed the Archive that faxed FOIA requests are received on
the same fax machine as many other general faxes sent to the
agency. They suggested that non-FOIA personnel may inadvertently
pick up a FOIA request and it could never make its way to the
FOIA office. The Archive's experience was similar with its White
House Memorandum and "10 Oldest" FOIA requests. One
of the White House Memorandum requests was "lost"
and two of the "10 Oldest" requests were lost. There
was no one agency that "lost" more than one request.
When a request is lost, the requester has little or no remedy,
and may lose weeks or months in the processing of the request.
- Excessive Backlogs. The FOIA mandates that agencies
respond to requests within 20 business days of submission. Courts
have found a constructive denial when an agency has failed to
provide a substantive response within the 20-day statutory time
limit spelling out (1) the agency's determination of whether
or not to comply with the request; (2) the reasons for its decision;
and (3) notice of the right of the requester to appeal to the
head of the agency if the initial agency decision is adverse.
See Oglesby v U. S. Dep't of Army, 920 F.2d 57, 65 (D.C.
Cir. 1990) (citing 5 U.S.C. § 552(a)(6)(A)(i)). Agency
response times concerning the request for information regarding
implementation of the Attorney General's memorandum ranged from
1 day to 127 days. Only 12 out of 35 agencies met the FOIA's
statutory time limit of 20 business days. For the Ashcroft Memorandum
requests, the Archive filed an appeal after 99-100 days. In
many cases the Archive was contacted about the appeal within
a short time of the filing and, in several cases, the processing
delay was quickly addressed.
The Archive views the Ashcroft Memorandum FOIA request as a
simple request. It related primarily to documents that should
be in the possession of the agencies' FOIA offices and does
not relate to any sensitive matters. Yet, the Archive frequently
found the request being processed as a complex or substantive
FOIA request. Repeatedly it was circulated to numerous component
FOIA offices, delaying its processing with little apparent benefit.
The Archive's request to the Department of Labor was sent to
the Office of the Solicitor in that Department. An acknowledgement
from the Department indicated that the request had been referred
to unspecified "components." Twenty-four days after
the Archive had faxed the initial request to the Office of the
Solicitor, the Employment Standards Administration's Office
of Labor-Management Standards and the Employment Standards Administration's
Office of Worker's Compensation Programs sent two separate no
documents responses to the Attorney General request. The response
from the Office of Workers Compensation Programs indicated that
"any guidance, directives or training" related to
"the Department of Labor's implementation of U.S. Attorney
General Ashcroft's October 12, 2001 memorandum" "would
have been developed and conducted by the Office of the Solicitor
of Labor." An administrative appeal to the Office of the
Solicitor 99 days after the initial request yielded a call from
the Department asking which component should be tasked to finish
the search, although the agency contact could not say which
components had originally received the referral from the Office
of the Solicitor. After the Archive requested that the Officer
of the Solicitor search its own records, three relevant documents
totaling seventeen pages of material originating from that office
were released. These materials were received 112 days after
the original request was faxed to the Solicitor of Labor.
Moreover, to the credit of the agencies, they generally follow
first-in, first-out policies. While this ensures that no requester
is given preference over another, it may lead to extensive
delay for even simple requests. Generally a requester who
seeks documents that require extensive search and review will
understand the reason for time extensions. For requesters
who identify documents with reasonable specificity or seek
information on a narrow topic, such delay is less reasonable.
The EFOIA amendments sought to encourage agencies to utilize
multiple queues to keep the FOIA system from grinding to a
halt due to a few major requests. It does not appear that
agencies are using the multiple queue systems effectively.
One FOIA officer reported that she processes both simple and
complex requests simultaneously and that all are actually
processed it the order received. The Archive intends to address
the backlog issue further in Phase Three of this audit.
- Complete Decentralization Leading to Delay and Lack of
Oversight. Many agencies have decentralized FOIA processing
systems, but also maintain principal agency FOIA contacts. The
Archive directed its FOIA requests to the principal FOIA contact
at the agencies. Many agencies then referred the requests to
agency components for processing, sometimes after several weeks
already had passed since the time that the FOIA request had
been received. In these cases the Archive often was informed
that the response time for the agency would not begin to run
until the component received the request.
To compound the issue, in most cases the Archive was not
informed to which components the request had been referred.
Thus, the Archive was not able to determine when processing
had been completed, what component to follow up with, or how
to properly couch its appeals. See, e.g., Discussion of Department
of Labor under "Excessive Backlogs." One agency
refused to disclose to the Archive which components had not
responded to the FOIA request.
Finally, the Archive learned that agencies such as the Department
of Labor, the Army and the Navy do not maintain any central
tracking or oversight over the requests once they have been
referred to a component. In contacting the agencies about
the "10 Oldest" requests, the Archive learned that
at least 20 out of 35 agencies could not respond to a FOIA
request that required them to locate their "10 Oldest"
FOIA requests, within the 20-day statutory time limit required
by FOIA. For those agencies that decentralize processing,
there should be some centralized oversight over the process
at the agency level.
- Inconsistent Practices Regarding the Acceptance of Administrative
Appeals. The FOIA mandates that agencies respond to requests
within 20 business days of submission. Courts have found a constructive
denial when an agency has failed to provide a substantive response
within the 20-day statutory time limit spelling out (1) the
agency's determination of whether or not to comply with the
request; (2) the reasons for its decision; and (3) notice of
the right of the requester to appeal to the head of the agency
if the initial agency decision is adverse. See Oglesby v
U. S. Dep't of Army, 920 F.2d 57, 65 (D.C. Cir. 1990) (citing
5 U.S.C. § 552(a)(6)(A)(i)). While the audit did not require
the Archive to file an appeal with each of the 35 agencies,
the Archive was informed by several agencies - the Department
of Housing and Urban Development, the Department of State, and
the Social Security Administration - that those agencies do
not permit a FOIA requester to administratively appeal an agency's
failure to meet the statutory time limit. Instead, those agencies
take the position that the only remedy for constructive denial
of a FOIA request is a lawsuit in court. Of the 9 appeals filed
concerning non-responsiveness with respect to the request for
information regarding implementation of the Attorney General's
memorandum, 7 agencies accepted the appeals. Limiting the right
to administratively challenge a failure to meet statutory deadlines
will have the tendency to increase agency litigation costs,
does not promote judicial economy, and unfairly penalizes requesters
seeking a timely response.
In enacting FOIA, Congress provided for both appeals to the
agency processing the request, 5 U.S.C. § 552(a)(6)(A),
and judicial review of adverse agency decisions, 5 U.S.C.
§ 552(a)(4)(B). Both serve important functions in promoting
public access to information. Appeals within the agency allow
for more rapid resolution of requests without the costs of
litigation and give a high-level agency official an opportunity
to review the agency processing of the request and adverse
determination. Judicial review provides for independent review
of agency determinations. Thus, judicial review is not intended
to duplicate the administrative appeals process.
It is beneficial for both agencies and FOIA requesters to
be able to use the administrative appeal process to resolve
disclosure issues without recourse to a court. First, a rule
that encourages litigation will tend to increase the agency
litigation costs, as it generally will cost more to defend
lawsuits, and potentially pay attorneys' fees to successful
litigants, than it would have cost to resolve them through
the administrative appeals process. Second, providing for
administrative review of constructive denials of FOIA requests
promotes judicial economy. Courts have consistently emphasized
the need for judicial economy and the role that full administrative
procedures play in ensuring that courts are not unnecessarily
burdened by appeals of agency decisions. Since government
agencies can generally resolve matters within their domain
more quickly and efficiently than courts, it is in the best
interests of all parties involved to see these matters resolved
within the agency where possible. This is certainly true in
the FOIA context, where the agency has access to the records
at issue, but the court and the requester do not. To the extent
that the agency has already begun processing the request,
then this processing time will not be wasted. Moreover, FOIA
appeal officers should be able to identify problems with agency
handling of a request more quickly than a court. Third, the
central goal of FOIA is to promote broad public access to
government information in a timely fashion. A regulation that
pushes FOIA requesters into court frustrates this purpose
for requesters who wish to expeditiously resolve issues at
the agency level. The burden on the requester is significant
because these requesters, like the agency, will incur substantial
costs in pursuing litigation, costs which could be avoided
in many cases through the administrative appeals process.
- The Effect of Appealing FOIA Determinations. The Archive
was consistently told that filing an administrative appeal due
to an agency's lack of response would slow the processing of
a request. The Archive was told that an appeal processed without
an actual denial necessitated the involvement of another level
of administration, frequently the Office of General Counsel,
and would generate gratuitous paperwork that would ultimately
slow processing. This information, although probably for the
most part accurate, is something the Archive cannot confirm.
The involvement of appellate personnel, however, appeared to
often accelerate the response process. The Archive filed 9 appeals
(to DOI, DOL, DOS, DOT, GSA, FDA, CDC, HUD, and VET) based on
the lack of a substantive response to the Ashcroft Memorandum
FOIA request. The FDA and CDC appeals were withdrawn upon receiving
a response from HHS that incorporated all HHS components. GSA
and VET had no record of receiving the initial September request
and therefore had to start processing the request at a later
date. Of the five remaining agencies, DOI, DOL, DOS, DOT and
HUD, all sent a substantive response to the initial request
within 20 working days of receiving the administrative appeal.
- Conflation of Fee Categorization and Fee Waiver Standards.
In the course of the audit, the Archive examined the practices
of agencies regarding fee categorization and fee waiver. Fee
categorization concerns the determination of the type of FOIA
requester that has made a request. In particular, the FOIA provides
for categorization as a commercial use request, an educational
institution request, a noncommercial scientific institution
request, a representative of the news media request, or other
request. The determination of whether a FOIA requester is obligated
to pay for search, review and/or duplication depends on the
fee categorization of the requester. All requesters, other than
commercial use requesters, regardless of their fee categorization,
are entitled to receive the first 100 pages of duplication without
charge and the first two hours of search without charge. A requester
may also qualify to have all fees waived, however, if disclosure
of the requested information is in the public interest because
it is likely to contribute significantly to public understanding
of the operations or activities of government. In the Archive's
experience, the determination of fee categorization and fee
waiver has been blended by many agency personnel.
The Archive observed a disturbing trend among federal agencies
to conflate the standards for fee categorization and fee waiver
or reduction. Agency response letters piled jargon upon boilerplate
to the point that attorneys contacting the Archive could not
distinguish between the fee categorization and fee waiver
determinations. Yet, courts have overwhelmingly ruled in favor
of the FOIA requester when agencies have conflated the fee
categorization and fee waiver standards. The apparent confusion
among agency personnel about the appropriate application of
these standards potentially will have the impact of (1) discouraging
FOIA requesters from exercising their right to view government
records; (2) encouraging unnecessary litigation as FOIA requesters
seek to challenge what appear to be incorrect determinations
of the fee issues; and (3) denial of the appropriate fee status
to FOIA requesters.
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