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Annual Report Guidance for DHS-Related Agencies

In response to the terrorist attacks of September 11, 2001, the federal government has undergone its largest and most wide-ranging reorganization in more than fifty years. This complex restructuring -- effectuated through enactment of the Homeland Security Act of 2002, Public Law 107-296 last November 25 -- was forged to better deal with potential homeland security vulnerabilities and protect Americans from the ever-increasing threats of international terrorism. The cornerstone of this reorganization, the new Department of Homeland Security (DHS), was created as the fifteenth cabinet department, both to perform entirely new statutory responsibilities and to carry out in a consolidated fashion certain responsibilities of previously existing federal agencies and agency components. It came into existence on January 24 of this year.

Under the Homeland Security Act, DHS absorbed one formerly autonomous agency, the Federal Emergency Management Agency (FEMA); several large components of other cabinet agencies -- including the Immigration and Naturalization Service (INS) from the Department of Justice, the United States Coast Guard and the Transportation Security Administration from the Department of Transportation, and the United States Customs Service and the United States Secret Service from the Department of the Treasury; and several smaller components of other agencies. Additionally, the Department of Justice "added on" the newly renamed Bureau of Alcohol, Tobacco, Firearms, and Explosives, which was transferred to it from the Treasury Department nearly in its entirety. See FOIA Post, "Homeland Security Law Contains New Exemption 3 Statute" (posted 1/27/03). Nearly all of these agency transfers were effective as of either March 1 or April 1, 2003.

This reorganization has greatly impacted many aspects of the operations of these government organizations, at all levels. One of those aspects of agency operations, of course, is the administration of the FOIA. Beyond the functioning of the newly created FOIA office of the new Department of Homeland Security, the reorganization has affected the work of the FOIA offices of the transferred agency components, as well as the FOIA offices within the agencies that became smaller. As such, this mid-year reorganization presents some unique issues for all affected agencies regarding the preparation of their annual statistical reports of their FOIA activities for the current fiscal year, Fiscal Year 2003.

Following the enactment of the Electronic Freedom of Information Act Amendments of 1996, and pursuant to subsection (e)(4) of the FOIA, 5 U.S.C. § 552(e)(4) (2000), the Department of Justice issued formal guidance to all agencies on their revised annual FOIA report responsibilities, see FOIA Update, Vol. XVIII, No. 3, at 3-7 ("OIP Guidance: Guidelines for Agency Preparation and Submission of Annual FOIA Reports"), and it has since supplemented that guidance, see FOIA Post, "Supplemental Guidance on Annual FOIA Reports" (posted 8/13/01); see also FOIA Update, Vol. XIX, No. 3, at 2. That guidance remains applicable to all departments and agencies that have not been affected by the Homeland Security Act's government reorganization this year.

The special guidance below is designed for the use of those departments and agencies that have been affected by the reorganization; it addresses circumstances and issues that are unique to their annual reports for Fiscal Year 2003, which they will begin preparing as of October of this year for compliance with the statutory completion deadline of February 1, 2004. See 5 U.S.C. § 552(e)(1). These issues will not recur in future years for subsequent annual reports.

As of October 1, 2002, the beginning of the current fiscal-year reporting cycle for annual FOIA reports, these federal departments and agencies were in their original, "pre-DHS" configuration. They were receiving and logging in requests for access to records, conducting searches for records, processing requested records, calculating median response times, collecting fees, adjudicating administrative appeals, etc., and each agency was bearing the costs of its own FOIA operations. Then in the middle of the fiscal-year reporting cycle -- in March and April for most affected agencies -- the reorganization occurred.

Consequently, the basic question is this: How should agencies affected by the reorganization calculate and present data for their annual FOIA reports covering the period October 1, 2002 to September 30, 2003? For purposes of coherence and uniformity under such circumstances, the answer is that each such agency component should report all of its data to the agency of which it is a part as of the end of this fiscal year (with one practical exception, as discussed below), which in turn should include that data in its annual FOIA report. In other words, an agency's organizational status as of the end of the fiscal year, September 30, 2003, should control. An elaboration with particular guidance points that must be borne in mind follows.

First, in the annual reports of the agencies that have lost components to DHS, the number of requests that they reported having "on hand" as of the end of Fiscal Year 2002 in last year's report will not be the same as the number of requests now to be reported as "on hand" as of the beginning of Fiscal Year 2003. To illustrate this, the Department of Justice's situation can serve as an example.

In preparing its Fiscal Year 2003 annual FOIA report, the Department of Justice will not include the access requests that were "on hand" at INS as of October 1, 2002, because INS transferred mid-year to DHS. (Rather, DHS will include those requests.) By the same token, though, the Department of Justice will include the access requests "on hand" at the Bureau of Alcohol, Tobacco, Firearms, and Explosives as of October 1, 2002, because as part of the reorganization ATF moved from the Department of the Treasury and is now part of the Department of Justice.

This means that in its Fiscal Year 2003 FOIA report, in this unusual circumstance, the number of access requests that the Department of Justice will report as "on hand" as of October 1, 2002 will not be the same as the number of requests that it reported as "on hand" as of September 30, 2002 in its Fiscal Year 2002 FOIA report. Because these numbers that otherwise should have been the same (see FOIA Post, "Supplemental Guidance on Annual FOIA Reports" (posted 8/13/01)) will not be the same, the Department of Justice will place an asterisk next to the number of requests reported as "on hand" as of October 1, 2002 and will provide an explanatory footnote to the effect that: "This number differs from the number reported as 'on hand' at the end of FY02 in last year's annual report, due to agency reorganization. This report was prepared in accordance with the supplemental annual FOIA report guidance issued by the Department of Justice on August 8, 2003." All other affected agencies should do likewise.

Second, there are two other areas of an affected agency's FOIA annual report where Fiscal Year 2003 data may differ significantly from data reported for Fiscal Year 2002 -- (a) in the section of the report that makes comparisons with previous years, and (b) in the section that specifies FOIA costs and FOIA staffing. In each instance, affected agencies should provide the same type of explanatory footnote -- saying that a substantial difference in the numbers from Fiscal Year 2002 to Fiscal Year 2003 is due to agency reorganization and that the report was prepared in accordance with Justice Department guidance.

Third, one additional area that might cause some concern is the specification of the numbers of administrative appeals received and appeals processed. There are two possibilities here: Some affected agencies adjudicated their own administrative appeals prior to the reorganization; others had their FOIA appeals adjudicated at a higher level within a department in a separate office or component that did not "move" with it. FEMA, for example, is an agency that processed its own administrative appeals prior to the reorganization. Whether or not FEMA continues to adjudicate its own appeals at DHS, FEMA's appeals numbers for Fiscal Year 2003, accrued both before and after the reorganization, should be reported in DHS's annual FOIA report.

The other group of affected agencies consists of those whose administrative appeals had been adjudicated by a separate component that did not "move" with the agency. This is the one instance, referenced above, in which annual report numbers will not "move" with the agency in the reorganization process. Once again, the Justice Department and INS can serve as an example. In past years, the Justice Department's Office of Information and Privacy adjudicated INS's FOIA appeals. INS moved to DHS on March 1, 2003. All INS appeals received and adjudicated by OIP from October 1, 2002 through February 28, 2003 (and associated costs) will be accounted for in the Justice Department's annual report for Fiscal Year 2003. All INS appeals pending in OIP on March 1, 2003 "moved" with INS to DHS and will be accounted for by DHS in its annual FOIA report.

Lastly, it must be remembered that under the statute agencies do not report the number of administrative appeals "on hand" as of the beginning and end of each fiscal year. Rather, agencies report only the numbers of appeals received and processed. So affected agencies may use an explanatory footnote in this part of their Fiscal Year 2003 reports to explain substantial differences in the numbers of appeals processed as reflected in their reports for the current and preceding fiscal years.

This guidance is similar to the annual FOIA report guidance that was issued by the Department of Justice following the enactment of the 1996 FOIA amendments, when the annual reporting cycle was changed from a calendar-year period to a fiscal-year period, causing a nine-month transition period and the filing of "partial-year reports" in the process. See FOIA Update, Vol. XVIII, No. 3, at 7. For the departments and agencies affected by the Homeland Security Act of 2002 and the Department of Homeland Security's creation, each of their Fiscal Year 2003 FOIA reports will necessarily be such a transitional report as well.   (posted 8/8/03)

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