FOIA Post (2002): Follow-Up Report on E-FOIA Implementation Issued

Follow-Up Report on E-FOIA Implementation Issued

Another forward step in the continued governmentwide implementation of the Electronic Freedom of Information Act Amendments of 1996 ("E-FOIA") has been taken, one that should assist all federal agencies in their continuing efforts to fully and properly implement all provisions of those Freedom of Information Act amendments.

As had been anticipated -- see FOIA Post, "GAO to Update Its E-FOIA Implementation Study" (posted 3/8/02); see also FOIA Post, "FOIA Officers Conference Scheduled" (posted 9/17/02) -- the General Accounting Office (GAO) this week issued a report of its supplemental examination of agency E-FOIA implementation activities. On September 25, GAO released its report, entitled "Update on the Implementation of the 1996 Electronic Freedom of Information Act Amendments" (2002 GAO Report), which is a follow-up to the initial such report that it issued in March 2001. See FOIA Post, "GAO E-FOIA Implementation Report Issued" (posted 3/23/01).

In this follow-up study, undertaken at the request of the committees holding FOIA oversight responsibility in both the House and the Senate, GAO built upon the study that it conducted in 2000-2001 when it initially selected twenty-five federal agencies (accounting for an estimated 97% of all FOIA requests governmentwide) for review of their FOIA Web sites and annual FOIA reports and eight agencies for further interviewing and document review. (It also addressed a collateral question of the "impact of the post-September 11 environment" on the FOIA, reaching the conclusion that "FOIA officials and requesters view the impacts very differently." 2002 GAO Report at 55, 62.)

Continuing with the same selected group of agencies, and this time using their annual FOIA reports for fiscal year 2001, GAO's 2002 review focused primarily on the following three areas of agency FOIA operations:

• the "processing times" in which agencies are handling their FOIA requests, including in multiple tracks where applicable, and any resultant backlogs of pending requests;

• the availability of information in electronic form on agency FOIA Web sites, in accordance with the requirements of subsections (a)(2) and (g) of the Act; and

• the quality of agency annual FOIA reports, particularly regarding their usefulness in facilitating governmentwide assessments of the time taken by agencies to process FOIA requests.

In the first of these areas, GAO found that it was "unable to identify any clear trends in processing time needed to fulfill requests because agencies have made changes in how they report these data." 2002 GAO Report at 12. Nevertheless, though, GAO made the following observation: "Governmentwide . . . agency backlogs of pending requests are substantial, and growing, indicating that agencies are falling behind in processing requests." Id. Thus, this is an area of FOIA administration that is, as GAO puts it, a matter of "concern." Id. at 61.

Second, GAO gave agencies only mixed reviews with respect to full compliance with the electronic availability requirements of the Electronic FOIA amendments. In conducting a careful comparison of agency FOIA Web sites in 2002 versus 2000, it found that the reviewed agencies had made quite noticeable "progress in making materials available on line." 2002 GAO Report at 45. It found this with respect to the "required elements" of the amended FOIA as well as with respect to "use of Web features that facilitate public access to information into their Web site," such as links to FOIA offices. Id. at 45-50.

On the other hand, though, GAO found several respects in which some agencies, as identified in its report, fell short of their electronic availability obligations -- in such categories as electronic reading room availability of administrative staff manuals and frequently requested records under FOIA subsections (a)(2)(C) and (a)(2)(D). See 2002 GAO Report at 45-47. It also found in this review that agency FOIA Web sites "varied in terms of how easy or difficult it was to find" the categories of information in question. Id. at 53. GAO therefore concluded that "[a]gencies are not devoting sufficient attention to the on-line availability of materials and ensuring that Web site content is adequately maintained, including accuracy and currency of the material and Web site links." Id. at 54.

Indeed, in consulting with the Office of Information and Privacy during its review, GAO related that there even were some instances in which it had found that certain agencies had "backslid" in meeting their electronic availability obligations between the time of GAO's 2000 and 2002 reviews. This makes agency review of GAO's detailed findings, and prompt corrective action where indicated, all the more warranted. As GAO concluded in this part of its report: "[A]gencies are not yet adequately ensuring that [posted FOIA] materials are properly maintained as agency Web sites change over time." 2002 GAO Report at 61.

In the third area, pertaining to agencies' annual FOIA reports, GAO continued to emphasize these reports' importance as a means of assessing the FOIA's administration throughout the executive branch. Significantly, in this review, GAO found that "fewer agency FOIA reports had data quality and consistency problems, compared with" the annual reports that it had examined in its 2000 review. 2002 GAO Report at 59. It attributed this to the continuing efforts of the Office Information and Privacy, together with individual agencies, to carefully review the reports that are prepared, as well as to the supplemental annual report guidance -- see FOIA Post, "Supplemental Guidance on Annual FOIA Reports" (posted 8/13/01) -- that OIP issued in implementation of GAO's recommendations in 2001. See 2002 GAO Report at 62 (concluding that OIP's actions "have resulted in improvements to both the quality of agencies' annual reports and on-line availability of information").

However, GAO still found a few "data quality problems" in the fiscal year 2001 reports it reviewed that certainly warrant further attention. 2002 GAO Report at 59. Such "anomalies," it noted, should be taken care of through the continuation of the annual report review process that OIP commenced as of fiscal year 2000 and with greater diligence by the agencies that create them. Id. GAO fully credited the work that all agencies and OIP had done, in this as well as in all other reviewed areas, to make considerable improvements since the time of its previous study, and it noted that these actions were continuing. Most significantly, it therefore made no new recommendation for agency action in any of the areas of its review. See id. at 62.

Nonetheless, this GAO "update" report stands as an important basis upon which all agencies can carefully review and wherever necessary improve their compliance with E-FOIA's requirements, just as GAO's original report did. See FOIA Post, "GAO E-FOIA Implementation Report Issued" (posted 3/23/01) (urging all principal agency FOIA officers "to take the findings of this GAO report very seriously and to make effective use of it throughout your agency in order to ensure that your agency both attains and maintains proper compliance with all of E-FOIA's electronic availability requirements"). Its level of detail with respect to both electronic availability compliance and annual reporting accuracy, in particular, should be relied upon by all agencies both in identifying continued areas needing improvement and in making all such improvements at this time. The objective, of course, must be full compliance with all requirements of the law.

Careful agency attention to their full FOIA responsibilities is all the more important in that it comports with the high degree of interest in it that is held by Congress. As has been pointed out, see FOIA Post, "GAO to Update Its E-FOIA Implementation Study" (posted 3/8/02), this updated GAO study was requested by Rep. Stephen Horn, Chairman of the Subcommittee on Government Efficiency, Financial Management, and Intergovernmental Relations of the House Committee on Government Reform (the subcommittee that currently holds jurisdiction over FOIA matters in the House), and Senator Patrick Leahy, Chairman of the Senate Judiciary Committee, thus representing high-level, bipartisan interest in this subject. See also 2002 GAO Report at 1.

Moreover, this may be viewed by all agencies as only the second in a series of three such GAO reviews of governmentwide FOIA administration in that Senator Leahy, on behalf of the Senate Judiciary Committee, earlier this year requested an additional such GAO FOIA study. OIP has learned that GAO may begin conducting this further study very soon. See FOIA Post, "FOIA Officers Conference Scheduled" (posted 9/17/02). Accordingly, GAO's new E-FOIA implementation report, released on September 25, will be discussed at a FOIA Officers Conference to be conducted by OIP on Monday, September 30. See id. (posted 9/27/02)

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