In the May 30, 2008 Attorney General's Report to the President on agency progress under Executive Order 13,392, "Improving Agency Disclosure of Information," the Attorney General made a series of three recommendations that "look[ed] forward beyond the end of the Executive Order's implementation period to ensure its policies continue to improve FOIA practice in the years to come." The first recommendation required agencies that reported deficiencies in implementing their FOIA Improvement Plans to submit Updated Status Reports to the President's Management Council by August 1, 2008. The second recommendation required development of backlog reduction plans for any agency which has a backlog and has not made progress in reducing that backlog over the last two years. The third recommendation required agency Chief FOIA Officers to conduct a review of their agency FOIA Reading Rooms, to address any deficiencies in their content, and to certify that they are in compliance with the FOIA. The Office of Information and Privacy (OIP) has issued guidance to agencies on compiling their Updated Status Reports and completing their FOIA Reading Room Certifications. OIP has now also issued guidance to agencies on preparing Backlog Reduction Plans.
As the Attorney General's Report to the President notes, "[a]gencies have shown substantial improvement in the area of backlog reduction." Indeed, the Executive Order's "emphasis on this critical area of FOIA administration . . . has had a significant impact." At the same time, the Report notes that additional work needs to be done. As the Report states: "One point that emerges from the last two years of implementation of the Executive Order is the necessity to continue to focus attention on backlog reduction." With the Department of Justice's development of new requirements for agency Annual FOIA Reports, starting with Fiscal Year 2008, agencies will now be required for the first time to report on backlogged requests and appeals (i.e., those pending beyond the statutory time period). Starting with Fiscal Year 2009, agencies will also be required to report how those figures compare to the number of backlogged requests and appeals from the previous year.
The Attorney General's recommendation concerning the topic of backlogs is designed to "assist in keeping this important topic at the forefront of FOIA administration." Specifically, any agency with a backlog of requests which has not made progress in reducing that backlog over the last two years is required to develop a plan to reduce its backlog. The Attorney General's Report directs agencies, when they are creating their backlog reduction plans, to "consider whether appropriate staffing and agency support is being given to FOIA activities."
Set out below is the text of the guidance dated June 26, 2008, distributed by OIP to agency Chief FOIA Officers and agency principle FOIA contacts concerning development of Backlog Reduction Plans. For those agencies required to prepare such plans, they should be provided to their Chief FOIA Officer by September 8, 2008, for his or her approval. Each agency Chief FOIA Officer must then notify the Department of Justice and OMB by October 6, 2008, that he or she has approved the agency's Backlog Reduction Plan.
________________________________________________From: Department of Justice, Office of Information and Privacy
To: Agency Chief FOIA Officers
Agency Principle FOIA Contacts
Subject: Guidance on Preparing Backlog Reduction Plans
This memorandum provides guidance for preparing Backlog Reduction Plans. All agencies with backlogs which have not made progress in reducing those backlogs over the last two years are required to prepare Backlog Reduction Plans by September 8, 2008. Each agency Chief FOIA Officer must, in turn, notify the Department of Justice and OMB by October 6, 2008, that he or she has approved the agency's Backlog Reduction Plan.
BACKGROUND
On May 30, 2008, the Attorney General issued his third Report to the President pursuant to Executive Order 13,392. This Attorney General Report is based on the Fiscal Year 2007 Annual FOIA Reports that agencies submitted earlier this year and provides an update on the agencies' implementation of the FOIA and of their FOIA Improvement Plans. In accordance with Section 4(a) of the Executive Order, the Attorney General's Report includes recommendations for improving agency FOIA administration. The second recommendation requires each agency with a backlog of requests which has not made progress in reducing that backlog over the last two years to prepare a Backlog Reduction Plan. When doing so, the Attorney General's Report advises agencies to "consider whether appropriate staffing and agency support is being given to FOIA activities."
REPORTING REQUIREMENTS FOR BACKLOG REDUCTION PLANS
A. Determining Whether Your Agency Must Prepare a Backlog Reduction PlanThe requirement to prepare a Backlog Reduction Plan applies to all agencies which have a backlog of requests and which have not made progress in reducing that backlog over the last two years. A backlogged request is one which remains pending beyond the statutory time period. Because agencies were previously not required to report on the number of backlogged requests in their prior Annual FOIA Reports, they should refer to their numbers of requests "pending as of the end of current fiscal year," as reported in Section V of their Annual FOIA Reports, to determine whether they need to prepare a Backlog Reduction Plan.
To do so, agencies should first determine whether they have a backlog. Any agency which had no requests pending as of the end of Fiscal Year 2007, as reported in their Annual FOIA Report for Fiscal Year 2007, need not prepare a plan. For those agencies which had requests pending as of the end of Fiscal Year 2007, they should compare that number with the number pending at the end of Fiscal Year 2005, as reported in the Fiscal Year 2005 Annual FOIA Report. If the number has decreased, then the agency is making progress and the agency need not prepare a plan. Conversely, for all agencies which have a backlog of pending requests, and for which the number of pending requests is higher at the end of Fiscal Year 2007 than it was at the end of Fiscal Year 2005, those agencies are required to prepare Backlog Reduction Plans.
In recognition of the fact that some agencies have been steadily working on reducing their backlogs and may have made progress in reducing them during the nine months subsequent to the close of Fiscal Year 2007, at their option, those agencies may calculate their number of pending requests as of July 9, 2008, and use that as the comparison point with the number of requests pending at the end of Fiscal Year 2005, as reported in the Fiscal Year 2005 Annual FOIA report. If, as of July 9, 2008, the number of pending cases is lower than that pending at the end of Fiscal Year 2005, a Backlog Reduction Plan is not required.
All agencies which have been making progress in reducing their backlogs of pending requests should continue their beneficial work in this area. Those which have not made progress must prepare a Backlog Reduction Plan.
B. Timing of Preparation of the Backlog Reduction PlanThe Attorney General's Report states that each agency required to prepare a Backlog Reduction Plan must provide it to the agency's Chief FOIA Officer by September 8, 2008.
Each agency Chief FOIA Officer must then notify both the Department of Justice and OMB that he or she has approved the plan. That notification must be made no later than October 6, 2008. Each agency must also post its Backlog Reduction Plan on its FOIA Website.
C. Preparing the Backlog Reduction PlanEach agency required to prepare a Backlog Reduction Plan should examine its own FOIA processes and operations to determine how it can best bring about a meaningful reduction in its backlog. Every agency has its own distinct challenges and so necessarily will have varying approaches to reducing its backlog. The goal of each plan must be the same, however, and that is to reduce both the number and age of backlogged requests each year. To achieve this backlog reduction goal agencies' plans must include two elements. First, each agency should create a plan that focuses on reducing the overall number of backlogged requests and second, the plan should focus on reducing the age of the oldest of those backlogged requests. As to this second element, each agency should plan, at a minimum, to close its ten oldest backlogged requests each year. That will work in conjunction with the new reporting requirement for agency Annual FOIA Reports which requires agencies to list each year the date of their ten oldest requests which are still open. In creating their plans to accomplish this backlog reduction goal, agencies should be guided by a few important principles.
First, as noted above, in the Attorney General's Report agencies were directed, in creating their Backlog Reduction Plans, to "consider whether appropriate staffing and agency support is being given to FOIA activities." Second, each agency should also be mindful of the principles set forth in Executive Order 13,392. The Executive Order itself encouraged agencies when developing their FOIA Improvement Plans to "include specific activities that the agency will implement to eliminate or reduce the agency's FOIA backlog, including (as applicable) changes that will make the processing of FOIA requests more streamlined and effective, as well as increased reliance on the dissemination of records that can be made available to the public through a website or other means that do not require the public to make a request for the records under the FOIA." Those same guidelines likewise apply to Backlog Reduction Plans.
Lastly, the goal of Backlog Reduction Plans is to enable agencies to make progress in reducing the number of backlogged requests. The number of such requests will be reported in each agency's Annual FOIA Report starting with Fiscal Year 2008 and so the Backlog Reduction Plan should look forward to Fiscal Year 2009 and 2010, with the goal being the reduction in the number of backlogged requests from year to year.
D. Notifying the Department of Justice and OMBEach agency's Backlog Reduction Plan must be provided to the agency's Chief FOIA Officer by September 8, 2008. Once the plan is approved, the Chief FOIA Officer must notify the Department of Justice by e-mail directed to doj.oip.foia@usdoj.gov and OMB by e-mail directed to FOIAreporting@omb.eop.gov by October 6, 2008.
Agencies with questions regarding this matter should contact Thomas E. Hitter or Kenneth A. Hendricks at the Department of Justice's Office of Information and Privacy at (202) 514-3642. (posted 6/27/2008)
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