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FOIA Counselor Q&A:   Annual FOIA Reports

Q: When an agency in its annual FOIA report states the costs of its FOIA activities, of which personnel costs are a large part, should it do so based upon only the salaries of its personnel or should it include total personnel costs (i.e., fringe benefits) as well?

A: Agencies should state their total personnel costs, including the costs of employee fringe benefits, in their annual FOIA reports. In calculating personnel costs for budgetary purposes, most agencies use a standard percentage of employee salary (approximately 25%), in addition to basic salary, in order to estimate their total personnel costs. That same approach is no less appropriate for calculating and reporting the personnel-related costs of FOIA administration for purposes of annual FOIA reports. See FOIA Update, Vol. XIX, No. 3, at 2 (advising all agencies that in meeting their annual FOIA report obligations, "a primary concern is the 'practicability' of the means by which they do so"); accord H.R. Rep. No. 104-795, at 29 (1996) (House report encouraging agencies to use "reasonable estimates" in their annual FOIA reports). Further, any agency that maintains an office or staff that is solely devoted to the administration of the FOIA (including the handling of access requests under the Privacy Act) can readily use any distinct budgetary allocation for such an office or staff as a major part of its total FOIA cost estimate. Of course, for any such office or staff that expends time and resources on other Privacy Act activities (e.g., regarding systems notices, routine uses, implementation policy, or other matters of Privacy Act administration apart from the handling of access requests), the agency should estimate and deduct that time as not properly allocable to the costs of FOIA administration. Accord FOIA Update, Vol. XVIII, No. 3, at 4 ("OIP Guidance: Guidelines for Agency Preparation and Submission of Annual FOIA Reports") (specifying that annual FOIA reports are to cover "[a]ll requests for access to records, regardless of which law is cited by the requester").

Q: For larger, decentralized agencies that present their annual report data in multiple-component chart form, are there any special rules that must be followed?

A: Yes. Decentralized agencies certainly can best report their annual FOIA statistics on a component-by-component basis, presenting them comprehensively in a chart format, but in doing so they must be careful to doublecheck the accuracy of their individual component data against the stated totals for the agency overall. In both Section V and Section VII of the standard report, entitled "Initial FOIA/PA Access Requests" and "Compliance with Time Limits/Status of Pending Requests," respectively, multi-component agencies using the chart form of reporting should carefully tabulate the figures in their charts for this verification purpose. Specifically, in the charts for each of these two sections, the numbers reported should reconcile both vertically and horizontally. This means that in both charts the numbers in all of the vertical columns should be added up and then those numbers should be entered in the "total" row at the bottom of the chart. Then, for the chart in Section V, the numbers in each horizontal row, including the "total" row at the chart's bottom, must reconcile horizontally in accordance with the "Section V equation" that is contained in the Justice Department's annual report guidance (see FOIA Update, Vol. XVIII, No. 3, at 5) -- i.e., the number of requests pending at the beginning of the year, plus the number of requests received, minus the number of requests processed, equals the number of requests pending at the end of the year. For the chart in Section VII, the number of requests in each horizontal row, when added together, must equal the total number of requests processed by that component of the agency. Finally, the totals at the bottom of this chart, when added together, must equal the total number of requests processed by the entire agency.

Q: What are the most important rules for enumerating the disposition of appeals of denials of access requests?

A: When enumerating the disposition of appeals of denials of access requests in their annual FOIA reports, agencies should rely on the same basic methodology that they use in enumerating the disposition of initial access requests. Simply put, the total number of appeals adjudicated during a reporting year should equal the sum of the four disposition categories. For example, let's say an agency reports that it received twelve appeals during the fiscal year, but adjudicated only ten of them. The next step is to report the disposition of the ten adjudicated appeals. There are four disposition categories: "completely upheld," "partially reversed," "totally reversed," and the "other reasons for nondisclosure." The total of the numbers in these four categories should equal ten; there is no good reason for this not to be so. Therefore, agencies should be careful to doublecheck this by adding the category numbers together and matching that sum to the proper total. Lastly, an additional way in which report numbers should be reconciled concerns the category called "other reasons for nondisclosure" in Sections V and VI of the standard report. Agencies should be sure to add up the numbers reported in the nine subparts of this category and then state this total immediately following the words "other reasons for nondisclosure (total)."

Q: When an agency lists the Exemption 3 statutes on which it relied during the year, is it necessary to doublecheck the statutory citations that it provides?

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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