FOIA Post (2004): Summary of Annual FOIA Reports for Fiscal Year 2003

Summary of Annual FOIA Reports for Fiscal Year 2003

Under the provisions of the Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, all federal departments and agencies must prepare detailed annual reports of their Freedom of Information Act activities. These annual reports are prepared on a fiscal-year basis, and they are more detailed than those that were prepared in earlier years of the FOIA's administration. See 5 U.S.C. § 552(e) (2000).

The Department of Justice has issued formal guidelines and a standard format to be used for this purpose, see FOIA Update, Vol. XVIII, No. 3, at 3-7 ("Guidelines for Agency Preparation and Submission of Annual FOIA Reports"), and it has issued supplemental guidance to facilitate this annual reporting process as well. See FOIA Post, "Supplemental Guidance on Annual FOIA Reports" (posted 8/13/01). As is indicated in that supplemental guidance, the Office of Information and Privacy now compiles governmentwide summaries of the information contained in annual FOIA reports, which is possible only after all agencies have completed their reports for each fiscal year. See id.; see also FOIA Post, "FOIA Counselor Q&A: Annual FOIA Reports" (posted 12/19/03).

Below is a summary compilation of information contained in the annual FOIA reports that were prepared by the fifteen federal departments and seventy-three other federal agencies for Fiscal Year 2003. The fifteenth federal department, the Department of Homeland Security (DHS), came into existence during Fiscal Year 2003 as part of the major reorganization of the federal government, undertaken in response to the terrorist attacks of September 11, 2001, that saw the creation of DHS out of more than twenty component entities and also the shift of the newly named Bureau of Alcohol, Tobacco, Firearms, and Explosives to the Department of Justice. See FOIA Post, "Homeland Security Law Contains New Exemption 3 Statute" (posted 1/27/03) (describing organizational changes made by Homeland Security Act of 2002).

All Department of Homeland Security-related FOIA statistics for this fiscal year have been reported in accordance with special guidance that was issued by the Office of Information and Privacy for that purpose. See FOIA Post, "Annual Report Guidance for DHS-Related Agencies" (posted 8/8/03). Because this reorganization greatly impacted agency functioning and also the administration of the FOIA at many federal agencies, and took effect during the middle of a fiscal year, the Fiscal Year 2003 FOIA reports of those agencies cannot readily be compared with those agencies' previous annual FOIA reports.

Number of Requests Received

The total number of Freedom of Information Act/Privacy Act access requests received by all federal departments and agencies during Fiscal Year 2003 was 3,266,394. This is 863,456 more than the number of requests received during Fiscal Year 2002, an increase of nearly 36%, and it marks the first year in which the three-million-request level has been reached. It also stands as the greatest one-year increase ever in FOIA requests received. More than half of this increase was due to the unusually large number of requests received by the Social Security Administration during the past fiscal year; indeed, reported requests for Social Security Administration records more than doubled in Fiscal Year 2003. The remainder is mostly attributable to large increases in numbers of requests received at the Department of Health and Human Services, the Department of the Treasury, the Department of Agriculture, and the Department of Veterans Affairs.

Of all federal departments, the Department of Veterans Affairs reported the largest number of requests received, 1,854,166, which includes all first-party access requests made by recipients of VA services. This was a 23% increase over the previous year. Among the other cabinet-level agencies, the newly created Department of Homeland Security, as a consolidation of 22 federal agencies and subagencies, received the second-highest number of requests, 161,117, and the Department of Health and Human Services' total was third highest, at 146,257. This is the first time that the Department of Justice was not among the top few agencies in the receipt of FOIA requests, which is due to the fact that the Immigration and Naturalization Service, a Justice Department component that usually received large numbers of requests for access to its records, became part of the Department of Homeland Security in 2003.

Among all other agencies, the Social Security Administration topped the list with 705,280 requests received, which is approximately 2.6 times more than the number that it received in the preceding fiscal year. In fact, the numbers of requests received by the Social Security Administration have increased more than twelve-fold during the five-year period since Fiscal Year 1998. In the past, the Social Security Administration attributed dramatic increases in FOIA requests to the popularity of Social Security documents in general. This year, the majority of the increase occurred in the Social Security Administration's field locations, SSA reported, where its FOIA activities have been enhanced by a recently instituted automated system among other measures.

The federal departments reporting the fewest requests received during Fiscal Year 2003 were the Department of Education, with 1856 requests, and the Department of Commerce, with 1975 requests. Among other agencies, those with the fewest requests were the Office of the National Counterintelligence Executive, which received seven FOIA requests, the Postal Rate Commission, which reported receiving nine requests, and the Farm Credit System Insurance Corporation, which received only ten requests.

Backlog Reduction

In recent years, agencies have been making efforts to reduce their backlogs of FOIA requests, and those efforts can be reflected in their individual annual FOIA reports. Overall, the total number of requests pending at federal departments and agencies as of the end of Fiscal Year 2003 was 155,343, which is approximately a 4.5% increase over the previous year. As of the end of Fiscal Year 2002, this number had been 148,599.

Six of the fourteen federal departments in existence in 2002 reported a decrease in their backlogs from Fiscal Year 2002 to Fiscal Year 2003. These were the Department of State, the Department of Labor, the Department of Justice, the Department of Agriculture, the Department of Commerce, and the Department of Energy. These percentage reductions ranged from slightly more than 1% to almost 44% (at the Department of State). Thirty-two other federal agencies reported decreases in their backlogs as well. The Peace Corps, the Federal Election Commission, the Environmental Protection Agency, Amtrak, the Federal Deposit Insurance Corporation, the Office of Special Counsel, and the Selective Service System reported the most significant percentage reductions among these agencies.

Seven federal agencies had no access requests pending as of the beginning of the fiscal year, then processed all incoming requests during the year, and thereby maintained that zero balance as of the end of the year. Of these, the agencies that processed the greatest numbers of requests were the Railroad Retirement Board (91), the National Endowment for the Arts (79), the Occupational Safety and Health Review Commission (58), the Federal Mine Safety and Health Review Commission (39), and the National Mediation Board (34).

Disposition of Requests

For seven of the fifteen federal departments, the number of "total grants" of their access requests was more than half of the number of requests processed. The departments for which this was not the case were the Department of Commerce, the Department of Homeland Security, the Department of the Interior, the Department of Justice, the Department of Labor, the Department of State, the Department of Transportation, and the Department of the Treasury -- which may be seen as a reflection of the sensitivity of the information requested from these departments. Among all other federal agencies, twenty-eight had "total grants" for more than half of their requests processed and forty-five had fewer. In sum, the total number of access requests processed by all federal agencies during Fiscal Year 2003 was 3,260,694 -- another record number by far -- which exceeded the number of requests processed during the preceding fiscal year by 832,098.

Agencies may withhold information under one or more of the FOIA's nine exemptions or they may respond to requests by citing, in annual report terminology, "other reasons for nondisclosure." Such reasons include such categories as "no records," referrals, "request withdrawn," a fee-related reason, "records not reasonably described," "not a proper FOIA request for some other reason," "not an agency record," and "duplicate request." Nearly 72% of all departments and agencies cited "no records" as the most-often-used such reason for nondisclosure.

Use of Exemptions

The exemption used most often was Exemption 6, in order to protect matters of personal privacy. This statistical count, though, includes a complete breakdown of all individually distinct exemptions and accordingly treats each subsection of Exemption 7 as a separate exemption. If Exemption 7's subparts were taken together, the total would be far greater than that of Exemption 6.

Additionally, under Exemption 3 of the Act, agencies withheld information pursuant to a total of 139 different nondisclosure statutes (three fewer than during the preceding fiscal year), all of which were required to be specified individually by agencies in their annual reports. See also FOIA Post, "Agencies Rely on Wide Range of Exemption 3 Statutes" (posted 12/16/03).

Appeals of Initial Denials of Requests

The Department of Justice was the recipient of the largest number of appeals of initial denials of access requests, even with the loss of the Immigration and Naturalization Service during the year. It received 3574 administrative appeals during Fiscal Year 2003, far more than any other agency. Among cabinet-level agencies, the Department of Homeland Security received the second highest number of appeals, with 1211, and the Department of the Treasury received the third highest, with 683.

Among all other agencies, the Equal Employment Opportunity Commission topped the list with 352 administrative appeals, followed by the Central Intelligence Agency, with 211, and the Environmental Protection Agency, with 137. On the other hand, no fewer than eighteen agencies reported that they did not receive any administrative appeals in Fiscal Year 2003, and an additional twenty-seven agencies reported receiving five or fewer appeals during the year. This means that now more than half of all agencies subject to the FOIA receive no more than five administrative appeals of FOIA denials per year.

Median Number of Days to Process Requests

Three departments reported that they processed relatively simple requests in twenty or fewer working days, expressed in agencywide median numbers. Some departments, such as the Department of Justice, the Department of Health and Human Services, and the Department of the Treasury, did not report a single, agencywide median of the number of days taken to process requests. These departments are divided into components or subagencies, each of which handles its own FOIA processing on a decentralized basis and thus reports its FOIA statistics accordingly. Accord FOIA Post, "FOIA Counselor Q&A: Annual FOIA Reports" (posted 12/19/03) (advising that "[d]ecentralized agencies certainly can best report their annual FOIA statistics on a component-by-component basis, presenting them comprehensively in a chart format"). Overall, only 10.4% of agencies that used single-track processing reported that their median processing time was greater than twenty days. Of the agencies that used multitrack processing, all but six reported a median processing time for complex requests of thirty days or more.

With respect to the median number of days that requests were pending as of the end of the fiscal year, among cabinet-level agencies the Department of Commerce reported the lowest number, at twenty-two days. The highest number was the Department of State's, which reported that the median number of days that requests were pending there during Fiscal Year 2003 was 312, which still was a reduction of 42% from the preceding fiscal year. Only nineteen federal agencies reported that the median number of days that their requests were pending as of the end of the year was greater than fifty.

For Fiscal Year 2003, for only the second time, agency action on requests for expedited processing also was included in agencies' annual reports. Accord FOIA Post, "Supplemental Guidance on Annual FOIA Reports" (posted 8/13/01) (specifying that in addition to reporting the numbers of requests for expedited processing that were granted during the year, as required by the statute, agencies for future fiscal years "should to the extent practicable also report the number of requests for expedited processing that are received each year, in relation to the number granted").

During Fiscal Year 2003, departments and agencies reported receiving nearly 33,000 requests for expedited processing and, in total, granting more than 21,000 of those requests, with the Department of Veterans Affairs reporting the highest number of such grants by a very wide margin. The next highest numbers of such requests were received by the Department of Agriculture, the Department of Defense, the Department of Labor, and the Department of Transportation.

Staffing Levels

A total of 5007.61 employee work-years were devoted to the administration of the FOIA throughout the federal government during Fiscal Year 2003, which was a decrease of 229.62 work-years, or approximately 4.4%, from Fiscal Year 2002. This means that, overall, agencies managed to process a greater number of requests during this fiscal year than last (by a wide margin) even while devoting fewer employee work-years to FOIA administration, doubtless due in no small part to increased use of automation.

Among cabinet-level agencies, the Department of Veterans Affairs reported the greatest number of FOIA work-years, for the first time, at 742. The Department of Justice reported the second-highest number, at 715.62, and the Department of Defense was third highest, at more than 700. The department with the smallest number of FOIA employees (expressed in aggregate work-years) was the Department of Education, with 6.9, followed by the Department of Commerce, with 17.8, and the Department of Housing and Urban Development, with 41.

Among all federal agencies, fifty-one reported having the equivalent of five or fewer FOIA employees during the fiscal year. On the other hand, among the noncabinet agencies with the largest numbers of FOIA employees were the Social Security Administration, with 167, the Environmental Protection Agency, with 155.35, the Central Intelligence Agency, with 72.4, the Securities and Exchange Commission, with 61.5, and the Equal Employment Opportunity Commission, with 41.42.

Costs

In Fiscal Year 2003, the total cost of all FOIA-related activities for all federal departments and agencies, as reported in their annual FOIA reports, was $323,050,337.33. This is the fourth time that this figure has exceeded the quarter-billion-dollar level, and it marks an increase of 7.7% over the preceding fiscal year. Nearly ten million dollars of these costs were reported as spent on litigation-related activities. Of total agency costs, only the amount of $6,725,902.43 (or 2.08%) was reported to have been recouped by the government -- albeit generally not retained by individual federal agencies -- through the collection of FOIA fees.

The federal department with the highest total costs was the Department of Justice, which spent more than sixty-eight million dollars on FOIA-related activities during Fiscal Year 2003, a lesser amount than in the preceding year due to the loss of INS. Second in this category was the Department of Defense, at more than forty million dollars, and in third place was the Department of Veterans Affairs, at more than thirty-nine million dollars. The federal department that reported spending the least amount of money on the FOIA was the Department of Education, at just over $400,000. Also at the lower end of reported FOIA costs for federal departments were the Department of Commerce, the Department of Housing and Urban Department, and the Department of Energy, each of which spent less than four million dollars.

Among other federal agencies, ten reported spending more than one million dollars on FOIA matters during the fiscal year. The Social Security Administration led this list, reporting the expenditure of $13.5 million during the course of the year. Among the others were the Environmental Protection Agency, at $9 million, the CIA, at $8.25 million, the Equal Employment Opportunity Commission, at $1,910,866, and the Federal Deposit Insurance Corporation, at $1,745,799. At the other end of the spectrum, nineteen agencies reported total FOIA costs of $25,000 or less during the year.

Comparisons with Previous Years

The Department of Justice's standard format for annual FOIA reports includes a section (Section VIII) entitled, "Comparisons with Previous Year(s)." Agencies use this section to provide additional information about their administration of the Act that is of particular significance to them, including additional statistics where applicable. Accord FOIA Post, "Supplemental Guidance on Annual FOIA Reports" (posted 8/13/01) (advising agencies that such statistics "can be specified in Section VIII, Part D, of the standard report format").

Many departments and agencies that provided information in this category stated that they had reduced the number of incoming FOIA requests by posting information of public interest on their FOIA Web sites. For example, the National Endowment for the Arts reported that largely due to information that it made available on its FOIA Web site, its volume of FOIA requests continued to decrease from a high of 697 in Fiscal Year 1995 to only seventy-nine in Fiscal Year 2003. Likewise, agencies such as the Department of the Interior, the Department of State, the Department of Agriculture, the Corporation for National Service, the Federal Deposit Insurance Corporation, the Federal Reserve System, NASA, and the Tennessee Valley Authority reported achieving such results as well.

In this regard, many agencies mentioned putting in their electronic reading rooms records that have been frequently requested under the FOIA, as required by the 1996 FOIA amendments. See 5 U.S.C. § 552(a)(2)(D); see also FOIA Post, "FOIA Counselor Q&A: "'Frequently Requested' Records" (posted 7/25/03) (reiterating importance and utility of placing "frequently requested" records in electronic reading rooms). For example, in 2003 NASA reported that the influx of FOIA requests after the loss of the Space Shuttle Columbia caused it to open a special electronic reading room for documents responsive to specific requests about that mission in particular and the Space Shuttle Program in general.

Additionally, under this report heading, four federal departments and sixteen other federal agencies drew attention to significant increases in the numbers of FOIA requests that they received in Fiscal Year 2003 as compared to Fiscal Year 2002. By contrast, three federal departments and twelve other agencies reported in Section VIII receiving fewer requests in 2003 than in 2002.

For Fiscal Year 2003, many departments and agencies reported that they were working to improve their timeliness by various electronic means. Among these were the Department of Agriculture, the Department of Commerce, the Department of Justice, the Department of Education, the Department of the Interior, the National Indian Gaming Commission, and the National Transportation Safety Board, the Agency for International Development, and the Federal Energy Regulatory Commission.

Additionally, many agencies reported the value of using in-house and external training activities for its FOIA personnel. Among these were the Department of Commerce, the Department of Energy, the Department of Justice, the Department of State, the Federal Deposit Insurance Corporation, the Federal Maritime Commission, and the Nuclear Regulatory Commission. Most notably, the Department of Agriculture discussed holding quarterly training sessions and the Department of the Interior reported conducting three agencywide meetings.

Lastly, many agencies reported that they were monitoring and evaluating their internal FOIA administrative procedures in an effort to reduce their request-processing times. Among these were the Department of the Interior, the Federal Deposit Insurance Corporation, the Federal Energy Regulatory Commission, the Federal Maritime Commission, and the Nuclear Regulatory Commission.

As noted above, the Office of Information and Privacy prepares governmentwide annual FOIA report compilations such as this on a regular yearly basis, as soon as possible after the completion of all agency reports following the end of each fiscal year -- which requires increased diligence by all agencies in the timely completion of their reports each year. See FOIA Post, "Supplemental Guidance on Annual FOIA Reports" (posted 8/13/01).

Therefore, all agencies must remember that the untimeliness of the last agency to complete its report each year (which this year was the Office of Management and Budget) necessarily constrains this governmentwide compilation process, and it is important that all agencies heed the Act's requirements for the completion of their annual FOIA reports in a timely fashion. See 5 U.S.C. § 552(e)(1)-(3) (establishing February 1 deadline for completion of individual agency annual FOIA reports). Doing so will permit the Office of Information and Privacy to complete these summary compilations earlier each year. Indeed, this issue of annual report timeliness has been pointedly raised in the Government Accountability Office's review of agency compliance with the Act. See FOIA Post, "Follow-Up Report on E-FOIA Implementation Issued" (posted 9/27/02) (citing 2002 GAO Report drawing prominent attention to cabinet agency that failed to complete its Fiscal Year 2001 report as of July 2002). (posted 7/29/04)

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