A: Yes. An agency is obligated to include in its annual FOIA report "a
complete list of all statutes" that it used in conjunction with Exemption 3
during the reporting year. 5 U.S.C. § 552(e)(1)(B)(2) (2000); see,
e.g., FOIA Post, "Supplemental
Guidance on Annual FOIA Reports" (posted 8/13/01). In doing so, an agency
should be particularly careful to verify the accuracy of the statutory citations
on its list, inasmuch as agencies rely on growing numbers of Exemption 3 statutes
and the citations to such statutes can change due to legislative developments
over time. See FOIA Post, "Agencies
Rely on Wide Range of Exemption 3 Statutes" (posted 12/16/03). Moreover,
if during this annual process of compilation and review an agency finds that
it incorrectly relied on a legal provision as an Exemption 3 statute during
the year, then (beyond keeping that citation in its report in order to accurately
reflect agency action taken during that past year) it should immediately take
all steps necessary to ensure that it does not rely on that statute in any future
year.
Q: If an agency discovers an error in its annual FOIA report after it is completed, should it
correct that error?
A. Yes. Under the 1996 FOIA amendments, agencies are obligated to complete
their annual FOIA reports for each fiscal year and submit them to the Department
of Justice by the following February 1, see 5 U.S.C. § 552(e)(1),
and then also make them available to the public electronically on their FOIA
Web sites, see 5 U.S.C. § 552(e)(2). Errors in these reports
may be detected by the Department of Justice, or by the agencies themselves,
after completion. See FOIA Post, "Follow-Up
Report on E-FOIA Implementation Issued" (posted 9/27/02) (describing Justice
Department review of all agencies' annual FOIA reports); see also FOIA
Post, "GAO E-FOIA Implementation
Report Issued" (posted 3/23/01) (same). Whenever this occurs, the agency
should correct any error and make sure that a corrected copy is available to
the public, in all forms in which the report is made available (i.e., in paper
form and at all applicable Web site locations), promptly. Accord 5
U.S.C. § 552(e)(4) (specifying Justice Department authority to
"establish additional requirements" for annual FOIA reports as are "determine[d]
may be useful"). For clarity, an annual FOIA report should bear an appropriate
notation if it is corrected, supplemented, or amended in any way.
Q: How should an agency deal with a statistical discrepancy between one year's report and the
next?
A: An agency should deal with such a thing directly and openly. A primary
statistic provided in an agency's annual report (in Section V) is the number
of initial requests pending at the end of the fiscal year. This same statistic
is required to appear in the report for the subsequent fiscal year (in Section
V also) as the number of initial requests pending at the beginning of that fiscal
year. In rare cases these numbers, which should be identical, are not. This
can be due to a computational error, an "electronic glitch," or a discrepancy
resulting from a computer system "upgrade." When this occurs, for one reason
or another, an explanation is in order, and it can best be provided in the form
of an explanatory footnote. Cf.
H.R. Rep. No. 104-795, at 29 (1996)
(expressing congressional concern over "the [statistical] reporting burden on
agencies"). Such a footnote should be clear and straightforward. In other words,
it is not sufficient merely to note the discrepancy; rather, an explanation
must be provided, so that the reader of the report can be confident that the
agency is following the proper reporting methodology. Accord FOIA
Post, "Annual Report Guidance
for DHS-Related Agencies" (posted 8/8/03) (advising the use of "asterisks"
and "explanatory footnotes" by all agencies affected by government reorganization
under the Homeland Security Act of 2002 in Fiscal Year 2003). By the same token,
an agency should take pains not to encumber the body of its annual report with
extraneous statements in footnote form or otherwise. Section VIII of the standard
report format, in Parts D and E, is an appropriate location for any such agency
comments that are optional in nature. In all respects when preparing their annual
FOIA reports, agencies should be mindful that both members of the public and
the General Accounting Office regularly review these reports in order to get
a clear and comparative picture of each agency's processes of FOIA administration.
See, e.g., FOIA Post, "FOIA
Officers Conference Scheduled" (posted 9/17/02) (describing GAO review activities).
(posted 12/19/03)
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