FOIA Post (2003): Summary of Annual FOIA Reports for Fiscal Year 2002

Summary of Annual FOIA Reports for Fiscal Year 2002

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 more detailed annual reports of their FOIA activities, on a fiscal-year basis, than were prepared in previous years. See 5 U.S.C. § 552(e) (2000 & Supp. I 2003). 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.
Below is a summary compilation of information contained in the annual FOIA reports that were prepared by the fourteen federal departments and seventy-five other federal agencies for Fiscal Year 2002. (The fifteenth federal department, the Department of Homeland Security (DHS), came into existence during Fiscal Year 2003; all DHS-related FOIA statistics for that next fiscal year will be reported in accordance with special guidance recently 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).)
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 2002 was 2,402,938. This is 156,726 more than the number of requests received during Fiscal Year 2001, an increase of nearly 7%, and it marks the third consecutive year in which the two-million-request level has been exceeded.
Of all federal departments, the Department of Veterans Affairs reported the largest number of requests received, 1,496,191, which includes all first-party access requests made by recipients of VA services. Among the other cabinet-level agencies, the Department of Justice received the second-highest number of requests, 182,079, and the Department of Health and Human Services' total was third highest, at 105,068. This is the first time in recent years that the Department of Health and Human Services, rather than the Department of Defense or the Department of Agriculture, has received the third-highest number of requests. In Fiscal Year 2002, the Department of Defense and Department of Agriculture totals both were under 80,000.
Among all other agencies, the Social Security Administration topped the list with 268,488 requests received, remaining at the very high level that it reached in the preceding fiscal year (263,756). In fact, the number of requests received by the Social Security Administration have nearly quintupled over a five-year period -- beginning from a level of 55,886 in Fiscal Year 1998. The Social Security Administration attributes this dramatic increase to the popularity of Social Security documents in general and, in particular, to the recent popularity of access provided through its Form SS-5 ("Application for Social Security Number") among genealogists, as well as to better reporting practices.
The federal departments reporting the fewest requests received during Fiscal Year 2002 were the Department of Education, with 1744 requests, and the Department of Commerce, with 2142 requests. Among other agencies, those with the fewest requests were the Inter-American Foundation, which received one request; the Office of the National Counterintelligence Executive, which received two requests; and the Postal Rate Commission, which reported receiving only seven requests.
Backlog Reduction

Within 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 2002 was 148,599, which is a 16.5% decrease over the previous year. As of the end of Fiscal Year 2001, the number had been 177,969.

Half of the fourteen federal departments reported a decrease in their backlogs from Fiscal Year 2001 to Fiscal Year 2002. These were the Department of Defense, the Department of Energy, the Department of Housing and Urban Development, the Department of Justice, the Department of Labor, the Department of State, and the Department of the Treasury. These percentage reductions ranged from 2.8% to 59%. Twenty-seven other federal agencies reported decreases in their backlogs as well. The Social Security Administration, the Environmental Protection Agency, the CIA, the Federal Energy Regulatory Commission, the Small Business Administration, and the Federal Trade Commission reported the most significant percentage reductions among these agencies.
Nine 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 Corporation for National Service (69), the Occupational Safety and Health Review Commission (55), the Federal Mine Safety and Health Review Commission (35), the National Mediation Board (26), and the Defense Nuclear Facilities Safety Board (16).
Disposition of Requests

For nine of the fourteen federal departments, the number of "total grants" of their access requests was more than half of the number of requests processed. The only departments for which this was not the case were the Department of Commerce, the Department of Housing and Urban Development, the Department of Labor, the Department of State, 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-seven had fewer. In sum, the total number of access requests processed by all federal agencies during Fiscal Year 2002 was 2,428,496 -- which exceeded the number of requests processed during the preceding fiscal year by 191,700, or approximately 8.5%.
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 71% 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 added 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 142 different nondisclosure statutes (two more than during the preceding fiscal year), all of which were required to be specified by agencies in their annual reports.
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: It received 3746 administrative appeals during Fiscal Year 2002. Among cabinet-level agencies, the Department of the Treasury received the second highest number of appeals, with 911, and the Department of Defense received the third highest, with 708.
Among all other agencies, the Equal Employment Opportunity Commission topped the list with 416 administrative appeals, followed by the Central Intelligence Agency, with 183, and the United States Postal Service, with 140. On the other hand, no fewer than twenty-three agencies reported that they did not receive any administrative appeals in Fiscal Year 2002, and an additional twenty-four agencies reported receiving five or fewer appeals during the 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. Overall, only 13.2% 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 fourteen 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 Transportation reported the lowest number, at forty-one 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 2002 was 546. Only twenty 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 the first time, agency action on requests for expedited processing also was included in the annual reports for this fiscal year. 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"). For Fiscal Year 2002, departments and agencies reported receiving nearly 102,000 requests for expedited processing and, in total, granting more than 98,000 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 reported by the Department of Agriculture, the Department of Defense, the Department of Labor, and the Equal Employment Opportunity Commission.
Staffing Levels

A total of 5237.23 employee work-years were devoted to the administration of the FOIA throughout the federal government during Fiscal Year 2002, an increase of approximately 312.51 work-years, or 6.34%, from Fiscal Year 2001. Among cabinet-level agencies, the Department of Justice reported the greatest number of FOIA work-years, at 1076.37. The Department of Veterans Affairs reported the second-highest number, at 860.96, 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 8.4, followed by the Department of Commerce, with 21, and the Department of Housing and Urban Development, with 41.
Among all federal agencies, fifty-four 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 Environmental Protection Agency, with 158.92, the Social Security Administration, with 152, the Central Intelligence Agency, with 70.3, the Securities and Exchange Commission, with 61, the Equal Employment Opportunity Commission, with 53.03, and the Small Business Administration, with 38.
Costs

In Fiscal Year 2002, the total cost of all FOIA-related activities for all federal departments and agencies, as reported in their annual FOIA reports, was $300,105,323.51. This is the third time that this figure has exceeded the quarter-billion-dollar level. Nearly ten million dollars of these costs were reported as spent on litigation-related activities. Of total agency costs, only the amount of $6,376,204.36 (or 2.12%) was reported to have been recouped by the government (albeit 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 reported spending more than eighty-one million dollars on FOIA-related activities during Fiscal Year 2002. Second 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-two million dollars. The federal department that reported spending the least amount of money on the FOIA was the Department of Education, at just over $320,000. Also at the lower end of reported FOIA costs for federal departments were the Department of Housing and Urban Department, the Department of Commerce, and the Department of Energy, each of which spent less than four million dollars.
Among other federal agencies, twelve 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 $13.8 million during the course of the year. Among the others were the Environmental Protection Agency, at $9.9 million, the CIA, at $7.8 million, the Securities and Exchange Commission, at $2,968,116, the Equal Employment Opportunity Commission, at $2,158,160, and the Federal Deposit Insurance Corporation, at $1,644,038. On the other hand, twenty-two 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 decreased from a high of 697 in Fiscal Year 1995 to only ninety-nine in Fiscal Year 2002. Likewise, agencies such as the Corporation for National Service, the Federal Deposit Insurance Corporation, the Federal Reserve System, NASA, the Nuclear Regulatory Commission, 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).
Additionally, under this report heading, two federal departments and eighteen other federal agencies drew attention to significant increases in the numbers of FOIA requests that they received in Fiscal Year 2002 as compared to Fiscal Year 2001. By contrast, three federal departments and eighteen other agencies reported in Section VIII receiving fewer requests in 2002 than in 2001.
For Fiscal Year 2002, many departments and agencies reported that they were working to improve their timeliness by various electronic means. Among these were the Department of Commerce, the Department of Justice, the Department of Transportation, the National Indian Gaming Commission, and the National Transportation Safety Board. Additionally, many agencies reported the value of using in-house and external training activities for its FOIA personnel. Among these were the Department of Agriculture, the Department of Commerce, the Department of Energy, the Department of Housing and Urban Development, the Department of the Interior, the Department of Justice, the Department of State, the Federal Deposit Insurance Corporation, the Federal Maritime Commission, NASA, and the Nuclear Regulatory Commission.
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 Education, the Department of the Interior, the Federal Deposit Insurance Corporation, and the Federal Energy 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 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 was pointedly raised in the Government Accounting Office's review of agency compliance last year. 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 9/3/03)

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