Selected Agencies Adapted to the COVID-19 Pandemic but Face Ongoing Challenges and Backlogs (GAO-22-105040)
Summary
A GAO report to congressional addressees, GAO-22-105040, dated January 2022, on the Freedom of Information Act (FOIA). It states that FOIA, enacted more than 50 years ago, seeks to improve the public's access to government information. GAO reports that the COVID-19 pandemic affected some measures of FOIA administration government-wide: requests received declined by 8 percent in fiscal year 2020, the first year of the pandemic, compared to fiscal year 2019, and agencies processed about 12 percent fewer requests in the same period. Its title states that selected agencies adapted to the pandemic but face ongoing challenges and backlogs.
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United States Government Accountability Office
Report to Congressional Addressees
FREEDOM OF
January 2022
INFORMATION ACT
Selected Agencies
Adapted to the
COVID-19 Pandemic
but Face Ongoing
Challenges and
Backlogs
GAO-22-105040
January 2022
FREEDOM OF INFORMATION ACT
Selected Agencies Adapted to the COVID-19
Pandemic but Face Ongoing Challenges and
Highlights of GAO-22-105040, a report to
Backlogs
congressional addressees
Why GAO Did This Study What GAO Found
FOIA, enacted into law more than 50 The COVID-19 pandemic affected some measures of Freedom of Information Act
years ago, seeks to improve the (FOIA) administration government-wide. For example, FOIA requests received
public’s access to government declined government-wide by 8 percent in fiscal year 2020, the first year of the
information and promote the principles pandemic, compared to fiscal year 2019. Overall, agencies processed about 12
of openness and accountability in percent fewer requests during this same period. Other measures continued
government. longer-term trends, such as increasing FOIA request backlogs.
The CARES Act includes a provision FOIA Requests Received and Processed Government-wide, Fiscal Years 2012 through 2020
for GAO to monitor and oversee the
federal government’s response to the
COVID-19 pandemic. GAO also was
asked to review how the pandemic
affected FOIA processes and
procedures. This report examines (1)
how key measures of FOIA
administration changed from fiscal
years 2019 to 2020 and over time
since fiscal year 2012; (2) how
selected agencies adapted their FOIA
operations during the pandemic; and
(3) how selected agencies’ backlog
reduction plans aligned with standards
for internal control and performance
management practices.
GAO selected five agencies based on
a variety of factors including the
number of FOIA requests received,
processed, and backlogged. GAO
reviewed documents and interviewed Four of the five selected agencies—the Departments of Agriculture (USDA),
officials from the selected agencies Homeland Security (DHS), and Labor (DOL), and the Environmental Protection
and the National Archives and Records Agency—initially faced pandemic-related challenges such as access to
Administration. information technology networks and FOIA requests received by mail. FBI’s use
of a classified FOIA system meant that staff could not telework. Thus, they had to
What GAO Recommends ensure workforce safety in the office.
GAO is making a total of four
All five agencies employed strategies and leading practices to maintain
recommendations, with one each to
operations during the pandemic, including processing requests based on their
DOL, DHS, USDA, and OIP. These
complexity, increased communication with requesters, and interim releases.
include that OIP should evaluate the
usefulness and burden of collected These agencies also continued long-term, non-pandemic related planning efforts,
performance information, and identify such as technology updates to FOIA systems and organizational changes.
ways reporting can inform current and Some of the agencies reviewed did not have key performance information in their
emerging challenges. The agencies backlog reduction plans. For example, USDA could better document planned
agreed with the recommendations. actions and milestones and DOL may not have reliable backlog data.
Additionally, DHS components with significant backlogs could develop plans.
Such information could help, for example, ensure agencies sustain backlog
View GAO-22-105040. For more information, reduction efforts. GAO found opportunities for the Office of Information Policy
contact James R. McTigue, Jr. at (202) 512- (OIP) to collect and publicly report additional data, such as the causes of FOIA
6806 or mctiguej@gao.gov. litigation, which could help agencies address emerging challenges.
United States Government Accountability Office
Contents
Letter 1
Background 4
The Pandemic Affected Some Key Measures for FOIA
Administration, while Other Measures Showed Continuation of
Longer-Term Trends 14
Selected Agencies Effectively Addressed Pandemic-Related
Challenges to FOIA Operations, but Long-Term Challenges
Remain 32
Selected Agencies Could Address FOIA Request Backlogs with
Improvements to Backlog Reduction Plans 41
Conclusions 52
Recommendations for Executive Action 53
Agency Comments and Our Evaluation 53
Appendix I Objectives, Scope, and Methodology 58
Appendix II Key Examples of Backlog Reduction Initiatives and Guidance 63
Appendix III Average and Median Number of Days to Process Simple,
Complex, and Expedited Requests 66
Appendix IV Key Measures of Freedom of Information Act Processing for
the Chief Financial Officers Act Agencies 73
Appendix V Comments from the Department of Homeland Security 74
Appendix VI Comments from the Department of Justice 77
Appendix VII Comments from the Department of Labor 79
Page i GAO-22-105040 Freedom of Information Act
Appendix VIII Comments from the Environmental Protection Agency 81
Appendix IX Comments from the National Archives and Records Administration 83
Appendix X GAO Contact and Staff Acknowledgments 84
Table
Table 1: Selected Agencies’ Complex Requests Processed in
Fiscal Years (FY) 2012 and 2020 43
Figures
Figure 1: Simplified Overview of the Federal Government’s
Freedom of Information Act Request and Appeal Process 8
Figure 2: Performance Plan Describing Major Management
Challenges Required for Reporting by Executive
Agencies under GPRA Modernization Act of 2010 12
Figure 3: FOIA Requests Received and Processed Government-
wide, Fiscal Years 2012 through 2020 15
Figure 4: Processing Time for Simple Requests Government-wide,
Fiscal Years 2012 through 2020 18
Figure 5: Processing Time for Expedited Requests Government-
wide, Fiscal Years 2012 through 2020 19
Figure 6: Processing Time for Complex Requests Government-
wide, Fiscal Years 2012 through 2020 21
Figure 7: Processing Time for Appeals Government-wide, Fiscal
Years 2012 through 2020 22
Figure 8: Request Backlogs Government-wide, Fiscal Years 2012
through 2020 24
Figure 9: Backlogged Appeals as Percent of Appeals Received
Government-wide, Fiscal Years 2012 through 2020 25
Figure 10: Percentage of Total Backlogged Requests
Government-wide by Number of Backlogged Requests
for Fiscal Year 2020 26
Page ii GAO-22-105040 Freedom of Information Act
Figure 11: Comparison of Backlogs for Department of Homeland
Security Components and Other Federal Agencies, Fiscal
Year 2020 27
Figure 12: Reported FOIA Full-Time Equivalents Government-
wide, Fiscal Year 2012 through 2020 28
Figure 13: Reported FOIA Costs Government-wide, Fiscal Year
2012 through 2020 29
Figure 14: Comparison of Request Disposition Government-wide,
Fiscal Years 2019 and 2020 30
Figure 15: FOIA Appeals Received and Processed Government-
wide, Fiscal Years 2012 through 2020 31
Figure 16: Comparison of Appeals Disposition Government-wide,
Fiscal Years 2019 and 2020 31
Figure 17: FOIA Litigation Cases Received and Decided in
Federal District Courts, 2012 through 2020 39
Figure 18: FOIA Request Backlogs as a Percentage of Requests
Received for Selected Agencies, Fiscal Years 2012
through 2020 42
Figure 19: Examples of Selected Agencies’ Actions to Reduce
Freedom of Information Act (FOIA) Request Backlogs 46
Figure 20: Summary of Our Assessment of Selected Agencies’
FOIA Backlog Reduction Plans 47
Figure 21: Average and Median Number of Days to Process
Simple, Complex, and Expedited Requests and Appeals
at the Department of Agriculture, Fiscal Years 2012-2020 66
Figure 22: Average and Median Number of Days to Process
Simple, Complex, and Expedited Requests and Appeals
at the Department of Homeland Security, Fiscal Years
2012-2020 67
Figure 23: Average and Median Number of Days to Process
Simple, Complex, and Expedited Requests and Appeals
at Customs and Border Protection, Fiscal Years 2012-
2020 68
Figure 24: Average and Median Number of Days to Process
Simple, Complex, and Expedited Requests and Appeals
at the Department of Justice, Fiscal Years 2012-2020 69
Figure 25: Average and Median Number of Days to Process
Simple, Complex, and Expedited Requests and Appeals
at the Federal Bureau of Investigation, Fiscal Years
2012-2020 70
Page iii GAO-22-105040 Freedom of Information Act
Figure 26: Average and Median Number of Days to Process
Simple, Complex, and Expedited Requests and Appeals
at the Department of Labor, Fiscal Years 2012-2020 71
Figure 27: Average and Median Number of Days to Process
Simple, Complex, and Expedited Requests and Appeals
at the Environmental Protection Agency, Fiscal Years
2012-2020 72
Figure 28: Key Measures of Freedom of Information Act
Processing for the Chief Financial Officers Act Agencies
for Fiscal Year 2020 73
Page iv GAO-22-105040 Freedom of Information Act
Abbreviations
CBP Customs and Border Protection
DHS Department of Homeland Security
DOJ Department of Justice
DOL Department of Labor
EPA Environmental Protection Agency
FBI Federal Bureau of Investigation
FOIA Freedom of Information Act
GPRA Government Performance and Results Act of 1993
GPRAMA GPRA Modernization Act of 2010
GSA General Services Administration
ICE Immigration and Customs Enforcement
NARA National Archives and Records Administration
NPRC National Personnel Records Center
OGIS Office of Government Information Services
OIA Department of Agriculture Office of Information Affairs
OIP Office of Information Policy
OMB Office of Management and Budget
OPM Office of Personnel Management
USDA U.S. Department of Agriculture
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Page v GAO-22-105040 Freedom of Information Act
Letter
441 G St. N.W.
Washington, DC 20548
January 26, 2022
Congressional Addressees
The Freedom of Information Act (FOIA), signed into law more than 50
years ago, is one of several laws that seeks to improve the public’s
access to government information and promote the principles of
openness and accountability in government.1 FOIA requires federal
agencies to provide the public with access to certain government
records.2 Each year, individuals and entities file hundreds of thousands of
FOIA requests for information on numerous topics that contribute to the
understanding of government actions. These topics have included,
among others, the disclosure of waste, fraud, and abuse; unsafe
consumer products and harmful drugs; and more recently, agencies’
responses to the Coronavirus Disease 2019 (COVID-19) pandemic. In
recent years, we have reported on various aspects of federal agencies’
efforts to implement FOIA.3
1We recently reported on more of these federal efforts to increase government
transparency. See GAO, Federal Spending Transparency: Opportunities Exist to Further
Improve the Information Available on USAspending.gov, GAO-22-104702 (Washington,
D.C.: Nov. 8, 2021); and Open Data: Agencies Need Guidance to Establish
Comprehensive Data Inventories; Information on Their Progress is Limited, GAO-21-29
(Washington, D.C.: Oct. 8, 2020). The Open, Public, Electronic and Necessary
Government Data Act, which is Title II of the Foundations for Evidence-Based
Policymaking Act of 2018, Pub. L. No. 115-435, 132 Stat. 5534 (2019), the FOIA
Improvement Act of 2016, Pub. L. No. 114-185, 130 Stat. 538 (2016), and the Digital
Accountability and Transparency Act, Pub. L. No. 113-101, 128 Stat. 1146 (2014), among
other efforts, have sought to improve the availability, transparency, and quality of federal
data.
25 U.S.C. § 552(a).
3For example, GAO, Freedom of Information Act: Actions Needed to Improve Agency
Compliance with Proactive Disclosure Requirements, GAO-21-254 (Washington, D.C.:
Mar. 10, 2021); Freedom of Information Act: Update on Federal Agencies’ Use of
Exemption Statutes, GAO-21-148 (Washington, D.C.: Jan. 12, 2021); Freedom of
Information Act: Federal Agencies’ Recent Implementation Efforts, GAO-20-406R
(Washington, D.C.: Mar. 11, 2020); Freedom of Information Act: Agencies Are
Implementing Requirements, but Additional Actions Are Needed, GAO-18-365
(Washington, D.C.: June 25, 2018); Freedom of Information Act: Litigation Costs for
Justice and Agencies Could Not Be Fully Determined, GAO-16-667 (Washington, D.C.:
Sept. 8, 2016); Freedom of Information Act: Department of Labor Can Improve
Management of Its Program, GAO-16-248 (Washington, D.C.: June 2, 2016); and
Freedom of Information Act: Additional Actions Can Strengthen Agency Efforts to Improve
Management, GAO-12-828 (Washington, D.C.: July 31, 2012).
Page 1 GAO-22-105040 Freedom of Information Act
We recently reported that the COVID-19 pandemic significantly affected
how federal employees performed their work as agencies adopted a
maximum telework posture and only allowed on-site work for limited
agency operations.4 In May 2020, the Office of Information Policy (OIP) in
the Department of Justice (DOJ), which is responsible for encouraging
and overseeing agency compliance with FOIA, published guidance
encouraging agencies to focus on finding workable solutions to maximize
the efficiency and effectiveness of FOIA administration during the
pandemic.5 In the guidance, DOJ acknowledged that many agencies
faced challenges due to the pandemic, such as staffing and technology
limitations, but affirmed that FOIA’s statutory response times continued to
apply.
The CARES Act, passed in March 2020, included a provision for us to
monitor and oversee the federal government’s response to the COVID-19
pandemic.6 We were asked to review the impact of the COVID-19
pandemic on FOIA processes and procedures. This report examines:
how key measures of FOIA administration, such as the number of
requests received, processed, and backlogged, changed from fiscal
years 2019 to 2020 and over time from fiscal years 2012 through
2020;
how selected agencies adapted their FOIA operations during the
COVID-19 pandemic; and
the extent to which selected agencies’ backlog reduction plans
aligned with standards for internal control and performance
management practices.
To address the first objective, we analyzed government-wide data on key
measures of FOIA administration for fiscal years 2012 through 2020. We
also selected a nongeneralizable sample of five agencies to provide
additional FOIA information. We based our selection on a variety of
factors, including number of FOIA requests received, processed, and
backlogged and size of FOIA offices, among other criteria. In addition, we
selected one component for each of the two largest agencies based on
4GAO, COVID-19: Federal Agencies’ Initial Reentry and Workplace Safety Planning,
GAO-22-104295 (Washington, D.C.: Oct. 25, 2021).
5Department of Justice, Office of Information Policy, Guidance for Agency FOIA
Administration in Light of COVID-19 Impacts, May 28, 2020.
6Pub. L. No. 116-136, § 19010, 134 Stat. 281, 579-81 (2020).
Page 2 GAO-22-105040 Freedom of Information Act
FOIA volume and backlog (Department of Homeland Security [DHS] and
DOJ). Based on this, we selected the
Department of Agriculture,
DHS and Customs and Border Protection (CBP),
DOJ and FBI,
Department of Labor, and
Environmental Protection Agency.
To assess data reliability, we reviewed relevant documentation on steps
taken to ensure the consistency of data on FOIA.gov and interviewed
DOJ officials. We found the data to be sufficiently reliable for reporting
changes from fiscal years 2019 to 2020 and long-term trends from fiscal
years 2012 through 2020.7
To address the second objective, we reviewed selected agencies’
documents related to FOIA processing—including policies, procedures,
guidance, and published reports—and interviewed agency officials about
pandemic-related and other long-term challenges. We assessed changes
to FOIA processing in response to the pandemic at selected agencies
against criteria for FOIA statutory requirements and OIP guidance and
best practices.
To address our third objective, we assessed selected agencies’
documents related to backlog reduction plans and how selected agencies
measured, tracked, and reported FOIA data—and in particular, data on
request backlogs. We also interviewed officials at OIP; the Office of
Government Information Services (OGIS) within the National Archives
and Records Administration (NARA), which provides FOIA assistance to
the public and reviews FOIA policies, procedures, and compliance of
federal agencies; and selected agencies about backlog reduction
activities and how they measured and assessed those activities. We
compared this information with DOJ guidance, Standards for Internal
7We used fiscal year 2012 as the starting point for those analyses to be consistent with
analyses presented in our prior work. GAO, Freedom of Information Act: Update on
Federal Agencies’ Use of Exemption Statutes, GAO-21-148 (Washington, D.C.: Jan. 12,
2021); Freedom of Information Act: Federal Agencies’ Recent Implementation Efforts,
GAO-20-406R (Washington, D.C.: Mar. 11, 2020); and Freedom of Information Act:
Agencies Are Implementing Requirements, but Additional Actions Are Needed,
GAO-18-365 (Washington, D.C.: June 25, 2018).
Page 3 GAO-22-105040 Freedom of Information Act
Control in the Federal Government, and key practices for addressing
major management challenges from Managing For Results: Agencies
Need to Fully Identify and Report Major Management Challenges and
Actions to Resolve them in their Agency Performance Plans
(GAO-16-510) to determine the extent to which selected agencies’ plans
aligned with these criteria.8 See appendix I for more details on our scope
and methodology.
We conducted this performance audit from February 2021 to January
2022 in accordance with generally accepted government auditing
standards. Those standards require that we plan and perform the audit to
obtain sufficient, appropriate evidence to provide a reasonable basis for
our findings and conclusions based on our audit objectives. We believe
that the evidence obtained provides a reasonable basis for our findings
and conclusions based on our audit objectives.
Background FOIA, enacted into law more than 50 years ago and amended most
recently by the FOIA Improvement Act of 2016, establishes a legal right of
access to government records and information on the basis of the
principles of openness and accountability in government.9
FOIA Oversight and OIP, OGIS, and the Chief FOIA Officers Council each have roles
Implementation supporting agency implementation of FOIA. Specifically:
OIP is responsible for encouraging agencies’ compliance with FOIA
and overseeing their implementation of the act. OIP, among other
things, issues policy guidance, promotes accountability by compiling
and reviewing information on agency compliance, and provides
training. OIP also offers counseling services to agencies on a broad
range of FOIA-related subjects, including guidance on managing the
effect of the pandemic.
8GAO, Managing For Results: Agencies Need to Fully Identify and Report Major
Management Challenges and Actions to Resolve Them in Their Agency Performance
Plans, GAO-16-510 (Washington, D.C.: June 15, 2016); and Standards for Internal
Control in the Federal Government, GAO-14-704G (Washington, D.C.: Sept. 2014).
95 U.S.C. § 552.
Page 4 GAO-22-105040 Freedom of Information Act
OGIS’s responsibilities include reviewing agencies’ policies,
procedures, and compliance with FOIA. OGIS also identifies
procedures and methods to improve compliance.10
The Chief FOIA Officers Council is responsible for, among other
things, developing recommendations for increasing FOIA compliance
and efficiency. The council is co-chaired by the Directors of OIP and
OGIS.11
FOIA Reporting Each year, FOIA requires federal departments and agencies to submit an
Annual FOIA Report to the Attorney General and OGIS Director, and a
Chief FOIA Officer Report to the Attorney General.12 FOIA also authorizes
the Attorney General to establish additional requirements for these
agency reports.13
The Annual FOIA Report contains detailed statistics including the
numbers of requests processed and received, the size of the backlog
of requests, and the time taken to process requests. DOJ provides
guidance to agencies on proper tracking and detailed instructions for
preparing the annual report data. In fiscal year 2020, 119 agencies
submitted an Annual FOIA Report.
In addition, DOJ also requires all agencies to provide quarterly reports
of four key FOIA statistics:
the number of requests received during the reporting period,
the number of requests processed during the reporting period,
the number of requests in an agency’s backlog at the end of the
reporting period, and
105 U.S.C. § 552(h)(2).
115 U.S.C. § 552(k)(5)(A).
12FOIA requires the Chief FOIA Officer of each agency to review and report to the
Attorney General on the agency’s performance in implementing FOIA, in accordance with
guidance from the Attorney General. 5 U.S.C. § 552(j)(2)(D). For the purposes of FOIA,
“agency” is defined as each authority of the United States government, whether or not it is
within or subject to review by another agency, but excludes, among others, Congress,
courts, territories or possessions, and the District of Columbia. 5 U.S.C. § 551(1).
135 U.S.C. §§ 552(e)(5), (j)(2)(D).
Page 5 GAO-22-105040 Freedom of Information Act
the progress being made to close each agency’s 10 oldest
pending FOIA requests from the prior fiscal year.14
According to DOJ guidance, the quarterly reports facilitate federal
agencies and the public in identifying trends and assessing progress
throughout the year.
In recent years, OIP’s Chief FOIA Officer Report guidelines have required
agencies receiving more than 50 FOIA requests to report on five key
areas of FOIA administration, including a section on steps taken to
improve timeliness in responding to requests and reducing backlog. OIP
updates these guidelines every year, such as adding a new question on
how agencies worked to mitigate the impact of the pandemic for the 2021
Chief FOIA Officer Report. Likewise, The Summary of Agency Chief FOIA
Officer Reports for 2021 and Assessment of Agency Progress in FOIA
Administration with OIP Guidance for Further Improvement assessed 27
high-volume agencies that received more than 1,000 requests and 42
medium-volume agencies that received between 50 to 1,000 requests.
DOJ makes the data from the Annual FOIA Report and quarterly reports
available on FOIA.gov, a central, government-wide website launched in
2011. Since 2018, FOIA.gov has allowed members of the public to submit
a FOIA request to an agency through the website or be directed to an
agency’s online submission form if that agency’s FOIA system is not
linked to FOIA.gov.
The FOIA Process Agencies are generally required to respond to a FOIA request within 20
business days with a determination of the scope of the documents they
will produce and the exemptions they will claim with respect to any
withheld document. Agencies are then required to promptly provide the
responsive documents, if any.
Once received, the request may go through multiple phases at an
agency, which include assigning a tracking number, searching for
responsive records, and releasing records (see fig. 1). In their Annual
FOIA Reports, agencies are to account for the disposition of each
14Department of Justice Handbook for Agency Annual Freedom of Information Act
Reports, October 7, 2021.
Page 6 GAO-22-105040 Freedom of Information Act
processed request as fully granted, partially granted and partially denied,
or fully denied based on exemptions.15
15DOJ uses the disposition category of “partial grant/partial denial” when an agency
provides the requester with some, but not all, of the information requested. This typically,
but not always, means that an agency used exemptions in its response. The number of full
denials reflects withholding all of the requested information based on a FOIA exemption
list at 5 U.S.C. § 552(b). FOIA specifies nine exemptions agencies may cite to withhold
information when responding to requests, which can be applied to portions of records or
the entire record. These exemptions generally cover information related to (1) classified
national defense or foreign policy; (2) internal agency personnel rules and practices; (3)
certain nondisclosure provisions in other statutes; (4) trade secrets and commercial or
financial information that is privileged or confidential; (5) interagency or intra-agency
memorandums or letters; (6) personal privacy; (7) law enforcement; (8) the regulation or
supervision of financial institutions; and (9) geological and geophysical information and
data. DOJ also specifies nine disposition categories for which agencies may close
requests for reasons other than exemptions, such as determining that they do not have
responsive records or to close duplicate requests submitted from the same requester.
Page 7 GAO-22-105040 Freedom of Information Act
Figure 1: Simplified Overview of the Federal Government’s Freedom of Information Act Request and Appeal Process
a
Under FOIA, a requester must exhaust all administrative remedies prior to seeking judicial review of
a federal agency’s decision. Such remedies include administrative appeals filed within a period
determined by the agency that is not less than 90 days. However, agency failure to comply with
statutory time limits is treated as an exhaustion of administrative remedies. When an agency fails to
comply with the 20-day statutory time limit, the requester is considered to have exhausted
administrative remedies and can seek judicial review. 5 U.S.C. §§ 552(a)(6)(A)-(C); Calhoun v. FBI,
546 F.App’x 487, 490 (5th Cir. 2013).
FOIA authorizes agencies to establish processes for responding to
requests by establishing a system for multiple processing tracks, referred
to as multitrack processing, based on the amount of work or time (or both)
involved in processing requests. Using this authority, agencies may
further define multitracking procedures through their FOIA regulation. For
the Annual FOIA Reports, agencies are required to categorize all FOIA
requests into only three processing tracks: simple, complex, and
Page 8 GAO-22-105040 Freedom of Information Act
expedited requests.16 DOJ defines simple requests as requiring relatively
minimal review that agencies place in their fastest (nonexpedited) track
based on, for example, the low volume and the simplicity of the records
requested. Complex requests typically seek a high volume of material or
require additional steps to process, such as the need to search for
records in multiple locations.17
Agencies process requests in each track on a “first-in, first-out” basis.
This is designed to facilitate more timely simple request processing and
allow agencies to offer requesters the option of tailoring their request so
that it fits within the simple track for faster processing.
Agencies may consider some FOIA requests as presenting “unusual
circumstances,” defined in statute as
the need to search for and collect records from field facilities or other
establishments that are separate from the office processing the
request;
the need to search, collect, and examine a voluminous amount of
separate and distinct records which are demanded in a single request;
and
the need for consultation with another agency having a substantial
interest in the determination of the request, or among two or more
components of an agency having substantial subject-matter interest.18
In “unusual circumstances,” the 20-working-day time limit may be
extended by up to 10 days for a total of 30 working days by notifying the
requester in writing, setting forth the unusual circumstances for an
16FOIA requires agencies to establish procedures in their regulations that provide for
expedited processing of requests in certain cases when the person requesting the records
demonstrates a compelling need and in other cases determined by the agency. The
expedited processing regulations must also ensure that a determination of whether to
provide expedited processing is made within 10 days.
17Factors that increase the complexity of a request include the volume of information
involved, the number of offices that might have responsive documents, the extent to which
the information is technical or difficult to understand, and the need to communicate with
third parties, such as other agencies or owners of proprietary information.
185 U.S.C. § 552(a)(6)(B)(iii).
Page 9 GAO-22-105040 Freedom of Information Act
extension and the date the agency expects to send its determination.19
FOIA allows a requester to challenge an agency’s final determination on a
request through an administrative appeal or a lawsuit. Agencies generally
have 20 business days to respond to an administrative appeal unless
“unusual circumstances” apply.20
Agencies may collect fees from FOIA requesters. Under FOIA, agencies
are required to publish regulations specifying a schedule of fees
applicable to processing requests and establishing procedures and
guidelines for waivers or reductions in fees. Fees are generally calculated
based on the direct costs of search, review, and duplication of records
responsive to a request depending on the use of the records (commercial,
non-commercial, or other).21
Proactive Disclosures FOIA also requires agencies to proactively disclose certain records—
making the records publicly available without waiting for specific
requests.22 When agencies make proactive disclosures, they enhance
transparency by ensuring that certain information about the operations
and activities of the government is readily and efficiently made available
195 U.S.C. § 552(a)(6)(B)(i). If the agency needs to extend the deadline beyond the
additional 10 days, it must also provide the requester an opportunity to limit the scope of
the request so that it may be processed within the time limit and offer the services of its
FOIA Public Liaison and OGIS. 5 U.S.C. 552(a)(6)(B)(ii).
205 U.S.C. § 552(a)(6)(A)-(B).
215 U.S.C. § 552(a)(4)(A). For non-commercial use, fees assessed also depend on the
identity of the requester. For example, requesters who are news media do not pay for
search time or document review and may be eligible for 100 pages of free duplication.
Moreover, FOIA also limits agencies on when they can charge fees if the FOIA’s time
limits are not met. Finally, the fees paid by requesters are not recouped by the agency or
the agency’s FOIA office, but rather deposited into the Treasury of the United States. An
agency cannot assess search fees for ‘commercial-use’ and ‘all other’ requesters or
duplication fees for ‘news media, educational institutions, and non-commercial scientific
institutions’ if it failed to comply with statutory time limits, unless one of the following
exceptions apply: (1) “exceptional circumstances” for requests in litigation that excuses
agency for the length of time provided by the court order, (2) “unusual circumstances” with
timely written notice to the requester and agency processes the request within the 10
additional days, and (3) “unusual circumstances” with more than 5,000 pages necessary
to respond to the request if the agency has provided timely written notice to the requester
and has made at least three good-faith attempts to discuss how the requester could limit
the scope of the request. 5 U.S.C. § 552(a)(4)(A)(viii).
225 U.S.C. § 552(a)(2).
Page 10 GAO-22-105040 Freedom of Information Act
to all.23 Additionally, publicly releasing records on a popular topic could
reduce the number of FOIA requests for the same records an agency
receives. The FOIA Improvement Act of 2016 added proactive disclosure
obligations by specifically requiring, among other things, the posting of
records that have been requested three or more times.24 The act also
created a new requirement for agencies to report on the number of
proactive disclosures in their annual FOIA reports.25
Backlog Reduction Efforts Reducing the backlog of agencies’ FOIA requests has been a long-
standing issue. Over the last two decades, backlog reduction has been
the subject of various executive orders, memorandums, and guidance
documents. Key examples are described in appendix II.
We have reported that agencies can use performance information to
guide efforts to address major management challenges, such as FOIA
request backlogs.26 The Government Performance and Results Act
(GPRA) Modernization Act of 2010 (GPRAMA) provides tools that can
help agencies resolve their major management challenges.27 For
example, under GPRAMA, agencies are required to identify their major
management challenges that are government-wide or crosscutting in
nature and plan for addressing them, including relevant performance
goals, performance indicators (hereafter referred to as performance
measures), and milestones.28 We have concluded that agencies not
covered under these requirements can benefit from using these
23GAO, Freedom of Information Act: Actions Needed to Improve Agency Compliance with
Proactive Disclosure Requirements, GAO-21-254 (Washington, D.C.: Mar. 10, 2021).
24FOIA Improvement Act of 2016, Pub. L. No. 114-185, § 2, 130 Stat. 538 (2016), codified
at 5 U.S.C. § 552(a)(2)(D).
25Pub. L. No. 114-185, 130 Stat. at 540, codified at 5 U.S.C. § 552(e)(1)(Q).
26GAO, Managing For Results: Agencies Need to Fully Identify and Report Major
Management Challenges and Actions to Resolve Them in Their Agency Performance
Plans, GAO-16-510 (Washington, D.C.: June 15, 2016).
27The GPRA Modernization Act of 2010, Pub. L. No. 111-352, 124 Stat. 3866, 3868
(2011), codified at 31 U.S.C. § 1115(a)(6).
28Major management challenges mean “programs or management functions, within or
across agencies, that have greater vulnerability to waste, fraud, abuse, and
mismanagement (such as issues identified by the Government Accountability Office as
high risk or issues identified by an Inspector General) where a failure to perform well could
seriously affect the ability of an agency or the Government to achieve its mission or
goals.” 31 U.S.C. § 1115 (h)(5).
Page 11 GAO-22-105040 Freedom of Information Act
requirements as leading practices.29 The performance information
agencies are required to report under GPRAMA is described in figure 2
below.
Figure 2: Performance Plan Describing Major Management Challenges Required for
Reporting by Executive Agencies under GPRA Modernization Act of 2010
Federal Telework during We recently found that prior to the COVID-19 pandemic, many federal
the COVID-19 Pandemic agencies had established telework policies and information technology
infrastructure, which allowed their FOIA programs to transition to remote
operations during the pandemic.30 We previously reported on telework as
a tool that agencies can use to help accomplish their missions during
29This can include the application of strategic planning requirements related to the
development and implementation of results-oriented goals and meaningful performance
measures in contexts where the requirements do not otherwise apply by law. GAO, Office
of Congressional Workplace Rights: Using Key Management Practices Would Help to
Fully Implement Statutory Requirements, GAO-20-222 (Washington, D.C.: Dec. 30, 2019).
30GAO, COVID-19: Selected Agencies Overcame Technology Challenges to Support
Telework but Need to Fully Assess Security Controls, GAO-21-583 (Washington, D.C.:
Sept. 30, 2021).
Page 12 GAO-22-105040 Freedom of Information Act
periods of disruption, such as during severe weather events and major
emergencies, including the current pandemic.31
The Office of Management and Budget (OMB) encouraged agencies to
maximize the use of telework for employees to enable the workforce to
remain safe while ensuring that government operations continue during
the pandemic.32 OMB, the Office of Personnel Management (OPM), and
the General Services Administration (GSA) also directed agencies to
update their workplace safety plans in line with revised Centers for
Disease Control and Prevention guidance and in preparation for the
increased return of employees to the workplace. In this memorandum,
they stated their expectation that many agencies will implement policies
that support a “hybrid” work environment—a mix of telework and on-site
work—where appropriate.33
31Congress has encouraged federal agencies to expand staff participation in telework,
most recently in 2010 by passing the Telework Enhancement Act of 2010. Pub. L. No.
111-292, 124 Stat. 3165 (2010). The act defines telework as a work flexibility arrangement
under which an employee performs the duties and responsibilities of such employee’s
position and other authorized activities from an approved worksite other than the location
from which the employee would otherwise work. The act also requires executive agencies
to establish telework policies, incorporate those policies into their respective continuity of
operations plans, and provide interactive telework training to employees eligible to
telework and managers of teleworkers. 5 U.S.C. §§ 6502-6504. GAO, COVID-19: Federal
Agencies’ Initial Reentry and Workplace Safety Planning, GAO-22-104295 (Washington,
D.C.: Oct. 25, 2021), and Federal Telework: Key Practice That Could Help Ensure the
Success of Telework Programs, GAO-21-238T (Washington, D.C.: Nov. 18, 2020).
32Office of Management and Budget, Federal Agency Operational Alignment to Slow the
Spread of Coronavirus COVID-19, Memorandum M-20-16 (Washington, D.C.: Mar. 17,
2020).
33OMB, OPM, and GSA, Integrating Planning for A Safe Increased Return of Federal
Employees and Contractors to Physical Workplaces with Post-Reentry Personnel Policies
and Work Environment, Memorandum M-21-25 (Washington, D.C.: June 10, 2021).
Page 13 GAO-22-105040 Freedom of Information Act
The Pandemic
Affected Some Key
Measures for FOIA
Administration, while
Other Measures
Showed Continuation
of Longer-Term
Trends
FOIA Requests Received FOIA requests received declined government-wide by 8 percent in fiscal
and Processed Declined in year 2020 (790,688) compared to fiscal year 2019 (858,952).34 Prior to
the First Year of the the pandemic, FOIA requests received and processed government-wide
rose nearly every year, increasing by 32 percent from fiscal year 2012 to
Pandemic fiscal year 2019 (see fig. 3).
34We later discuss challenges related to receiving requests by mail, so the number of
requests received may not account for unlogged requests.
Page 14 GAO-22-105040 Freedom of Information Act
Figure 3: FOIA Requests Received and Processed Government-wide, Fiscal Years 2012 through 2020
Declines in FOIA requests during the pandemic were not uniform across
agencies, as illustrated by the selected agencies in our review. For
example, EPA officials told us that they experienced a decline in the
volume of requests for records regarding possible enforcement or
cleanup actions at specific property addresses often requested in
connection with real estate transactions. They found this decline to be
consistent with reports of slower activity in the real estate sector in the
early months of the pandemic. Conversely, the FBI said it had received a
high volume of requests in fiscal year 2019. Officials attributed this to an
increase in public interest and media attention on its activities. Other
Page 15 GAO-22-105040 Freedom of Information Act
agencies in our review stated that the pandemic did not significantly
change their respective request volume.35
Government-wide, agencies also processed fewer FOIA requests in fiscal
year 2020.36 Agencies processed 12 percent fewer requests in fiscal year
2020 (772,868) than in fiscal year 2019, when requests processed
reached a record high (877,964).37 Prior to the pandemic, FOIA requests
processed government-wide rose nearly every year, increasing by 32
percent from fiscal year 2012 through fiscal year 2019.
Selected agencies told us that the pandemic had a varied effect on their
capacity to process requests. Officials at some agencies stated that they
continued to meet their processing metrics or made processing
improvements. Other agency officials stated that their agencies
processed fewer requests due to their efforts to protect employees’ safety
and provide staff with work-life balance, among other reasons.
In addition, the Office of Government Information Services (OGIS)
collected FOIA website notices showing that many agencies government-
wide cited the inability to access mailed or faxed requests as causing
potential delays in processing at the beginning of the pandemic.38 For
example, National Archives and Records Administration (NARA) officials
stated that the National Personnel Records Center’s closure largely
accounted for the agency’s 62 percent decrease in both the number of
requests received and requests processed from fiscal year 2019 to 2020.
35NARA officials stated that the National Personnel Records Center (NPRC) receives
more than 60,000 FOIA requests annually and mostly by mail. They said the NPRC facility
closure and reduced operations due to the pandemic resulted in a significant number of
requests that did not get recorded as received in fiscal year 2020.
36Agencies may vary in whether they include certain types of procedural denials such as
“Records Not Reasonably Described” in processing data on simple, complex, and
expedited requests. Therefore, total processed requests may not equal the sum of simple,
complex, and expedited processed requests.
37DOJ officials stated that FOIA statistics may have also been affected by a partial
government shutdown in fiscal year 2019.
38OGIS reported challenges to FOIA programs government-wide due to the pandemic,
particularly for agencies not telework ready, agencies that work with largely paper-based
records, or agencies that work with classified records or systems for processing records
responsive to FOIA requests. See National Archives and Records Administration, Office of
Government Information Services, OGIS Issue Assessment: Follow-up on Agency
Freedom of Information Act (FOIA) Website Communications on COVID-19 (Jan. 27,
2021).
Page 16 GAO-22-105040 Freedom of Information Act
Many NARA Federal Records Centers remained closed and operated on
an emergency-only basis, which officials said had a greater effect on
some federal agencies that relied on these sites. As we will discuss later,
we also found access to mailed requests and paper records contributed
to initial challenges in FOIA processing.
Request Processing Time Agencies government-wide took less time on average to process simple
Changed in the First Year and expedited requests, while taking more time to process complex
requests from fiscal years 2019 to 2020.39 Specifically, average
of the Pandemic
processing time improved government-wide for simple requests with a
decrease in average days (39 to 30), while the estimated median number
of days stayed about the same (17 to 16) from fiscal years 2019 to 2020
(see fig. 4).
39Processing time for complex requests may not necessarily be directly comparable to
processing time for simple requests within a single fiscal year because complex request
data may include older requests processed in that year but received in a previous year.
Thus, an increase in processing time for complex requests may instead reflect the agency
closing a number of older requests from prior years.
Page 17 GAO-22-105040 Freedom of Information Act
Figure 4: Processing Time for Simple Requests Government-wide, Fiscal Years
2012 through 2020
Notes: FOIA data provides means and medians for processing times at the agency level, as well as
the number of requests per agency for each year. From this, we are able to calculate government-
wide means each year. We also know from the agency level statistics that extreme values skew the
processing times, i.e., the means are generally greater than the medians within each agency. In this
situation, a median is a helpful measure of central tendency since it is not sensitive to extreme
values. However, there are no government-wide data on individual requests and appeals that could
be used to compute median processing times, and the median processing time government-wide
cannot be directly calculated based on the agency medians. As an alternative, we estimate
government-wide medians by weighting the agency-level medians by the numbers of
requests/appeals processed by each agency. See appendix I for more information.
According to the Department of Justice (DOJ), the statutory time period for responding to a request
does not begin until an agency receives a perfected request. DOJ defines a perfected request as a
request for records which reasonably describes such records and is made in accordance with
published rules stating the time, place, fees (if any) and procedures to be followed. Accordingly,
agencies do not assign a track to unperfected requests that do not reasonably describe the records
sought or are otherwise improperly made. Agencies may vary in the percentage of their unperfected
requests that have not been labeled as simple, complex, or expedited. The numbers are still
sufficiently reliable for the purposes of tracking government-wide year-over-year trends.
Likewise, from fiscal years 2019 to 2020, the average number of days to
process an expedited request decreased (62 to 53), while the estimated
median number of days stayed about the same (20 to 21). Both fiscal
Page 18 GAO-22-105040 Freedom of Information Act
years 2019 and 2020 reflected a decrease in processing time from an
average of 86 days and estimated median of 30 days in fiscal year 2018
(see fig. 5).
Figure 5: Processing Time for Expedited Requests Government-wide, Fiscal Years
2012 through 2020
Notes: FOIA data provides means and medians for processing times at the agency level, as well as
the number of requests per agency for each year. From this, we are able to calculate government-
wide means each year. We also know from the agency level statistics that extreme values skew the
processing times, i.e., the means are generally greater than the medians within each agency. In this
situation, a median is a helpful measure of central tendency since it is not sensitive to extreme
values. However, there are no government-wide data on individual requests and appeals that could
be used to compute median processing times, and the median processing time government-wide
cannot be directly calculated based on the agency medians. As an alternative, we estimate
government-wide medians by weighting the agency-level medians by the numbers of
requests/appeals processed by each agency. See appendix I for more information.
According to the Department of Justice (DOJ), the statutory time period for responding to a request
does not begin until an agency receives a perfected request. DOJ defines a perfected request as a
request for records which reasonably describes such records and is made in accordance with
published rules stating the time, place, fees (if any) and procedures to be followed. Accordingly,
agencies do not assign a track to unperfected requests that do not reasonably describe the records
sought or are otherwise improperly made. Agencies may vary in the percentage of their unperfected
requests that have not been labeled as simple, complex, or expedited. The numbers are still
sufficiently reliable for the purposes of tracking government-wide year-over-year trends.
Page 19 GAO-22-105040 Freedom of Information Act
The Office of Information Policy’s (OIP) COVID-19 guidance stated
agencies should strategically manage their FOIA programs, including the
use of multitrack processing to prioritize requests that could be processed
more efficiently while facing temporary limitations, such as an inability to
access certain records, during the pandemic. Accordingly, we found some
of the agencies in our review sought opportunities to process simpler
cases. For example, FBI stated that it normally has a dedicated small
case team to handle simple cases (internally defined as requests
involving one to 50 pages), but distributed more of these cases across
processing support units to mitigate reduced staffing levels during the
pandemic and keep pace with the largest proportion of its requests.
In contrast to changes to simple and expedited request processing time,
complex request processing time increased government-wide from fiscal
years 2019 to 2020, from an average of 120 to 127 days and an
estimated median of 43 to 51 days (see fig. 6).40 However, both of these
years showed a decrease from the higher numbers in fiscal years 2017
(average of 139, estimated median of 109) and 2018 (average of 143,
estimated median of 103).
40Complex request data may include older requests processed in that year but received in
a previous year. Thus, an increase in processing time for complex requests may instead
reflect the agency closing older requests from prior years.
Page 20 GAO-22-105040 Freedom of Information Act
Figure 6: Processing Time for Complex Requests Government-wide, Fiscal Years
2012 through 2020
Notes: FOIA data provides means and medians for processing times at the agency level, as well as
the number of requests per agency for each year. From this, we are able to calculate government-
wide means each year. We also know from the agency level statistics that extreme values skew the
processing times, i.e., the means are generally greater than the medians within each agency. In this
situation, a median is a helpful measure of central tendency since it is not sensitive to extreme
values. However, there are no government-wide data on individual requests and appeals that could
be used to compute median processing times, and the median processing time government-wide
cannot be directly calculated based on the agency medians. As an alternative, we estimate
government-wide medians by weighting the agency-level medians by the numbers of
requests/appeals processed by each agency. See appendix I for more information.
According to the Department of Justice (DOJ), the statutory time period for responding to a request
does not begin until an agency receives a perfected request. DOJ defines a perfected request as a
request for records which reasonably describes such records and is made in accordance with
published rules stating the time, place, fees (if any) and procedures to be followed. Accordingly,
agencies do not assign a track to unperfected requests that do not reasonably describe the records
sought or are otherwise improperly made. Agencies may vary in the percentage of their unperfected
requests that have not been labeled as simple, complex, or expedited. The numbers are still
sufficiently reliable for the purposes of tracking government-wide year-over-year trends.
Selected agency officials said it takes longer to process complex requests
than in prior years because of a higher volume of complex requests
received. They added that this trend began prior to the pandemic. DOJ
Page 21 GAO-22-105040 Freedom of Information Act
defines complex requests by the amount of work or time (or both)
involved in processing. Such requests often have a high volume of
records, complex searches, or multiple consultations. DOJ officials told us
that not every complex request meets the statutory requirements for
unusual circumstances.
Processing time for appeals also showed improvement as the average
number of days decreased (63 to 55) and the estimated median stayed
about the same from fiscal years 2019 to 2020 (15 to 14). Appeals
processing time generally improved from the 67 average days and 44
estimated median days to process appeals in fiscal year 2014 (see fig. 7).
Figure 7: Processing Time for Appeals Government-wide, Fiscal Years 2012
through 2020
Note: FOIA data provides means and medians for processing times at the agency level, as well as
the number of requests per agency for each year. From this, we are able to calculate government-
wide means each year. We also know from the agency level statistics that extreme values skew the
processing times, i.e., the means are generally greater than the medians within each agency. In this
situation, a median is a helpful measure of central tendency since it is not sensitive to extreme
values. However, there are no government-wide data on individual requests and appeals that could
be used to compute median processing times, and the median processing time government-wide
Page 22 GAO-22-105040 Freedom of Information Act
cannot be directly calculated based on the agency medians. As an alternative, we estimate
government-wide medians by weighting the agency-level medians by the numbers of
requests/appeals processed by each agency. See appendix I for more information.
According to the Department of Justice (DOJ), the statutory time period for responding to a request
does not begin until an agency receives a perfected request. DOJ defines a perfected request as a
request for records which reasonably describes such records and is made in accordance with
published rules stating the time, place, fees (if any) and procedures to be followed. Accordingly,
agencies do not assign a track to unperfected requests that do not reasonably describe the records
sought or are otherwise improperly made. Agencies may vary in the percentage of their unperfected
requests that have not been labeled as simple, complex, or expedited. The numbers are still
sufficiently reliable for the purposes of tracking government-wide year-over-year trends.
FOIA Request and
Appeals Backlog, FOIA-
Related Costs, and Fees
Assessed Continued
Longer-Term Government-
wide Trends
Request and Appeals Backlog FOIA request backlogs increased by 18 percent (from 120,436 to
141,762) from fiscal year 2019 to fiscal year 2020. Backlogged requests
have been trending generally upwards since fiscal year 2016 (see fig.
8).41 From fiscal year 2012 to fiscal year 2020, backlogs increased by a
total of 97 percent. While the number of backlogged requests increased,
backlogged requests as a percent of total requests received ranged
between 14 and 15 percent and remained relatively steady between fiscal
years 2015 to 2019. Backlogged requests as a percent of total requests
then rose slightly in fiscal year 2020 (18 percent). As requests increased
government-wide, the backlog generally grew at a similar rate with the
exception of fiscal year 2014. This shows the long-term and persistent
nature of the challenge of reducing backlog.
41DOJ reported a 3-week government shutdown during which some agencies could not
process requests in fiscal year 2014. The government-wide FOIA backlog rose 67 percent
from fiscal year 2013.
Page 23 GAO-22-105040 Freedom of Information Act
Figure 8: Request Backlogs Government-wide, Fiscal Years 2012 through 2020
From fiscal year 2012 through fiscal year 2020, the appeals backlog
increased by 63 percent (see fig. 9). The Chief FOIA Officer Report has
additional questions for agencies with backlogged requests and appeals,
which includes asking about contributing factors if their backlog
increased. As part of its annual assessment of agency compliance with
FOIA, OIP grades certain metrics, such as whether backlogged requests
and appeals decreased, stayed the same, or increased from the previous
year. According to OIP, information provided by agencies in this report
informs its guidance addressing the importance of various topics, such as
strategically managing backlogs.
Page 24 GAO-22-105040 Freedom of Information Act
Figure 9: Backlogged Appeals as Percent of Appeals Received Government-wide, Fiscal Years 2012 through 2020
In fiscal year 2020, most federal agencies had fewer than 100 backlogged
requests, but these 87 agencies represented only 1 percent of the total
backlogged requests government-wide. The 16 agencies with backlogs of
more than 1,000 requests (an increase of 3 agencies from fiscal year
2019) represented 94 percent of the total backlogged requests
government-wide (see fig. 10).
In contrast, six agencies reported backlogs of more than 1,000 requests
in fiscal year 2012.
Page 25 GAO-22-105040 Freedom of Information Act
Figure 10: Percentage of Total Backlogged Requests Government-wide by Number
of Backlogged Requests for Fiscal Year 2020
Further, the Department of Homeland Security (DHS)—which had more
than 1,000 backlogged requests in fiscal year 2020—accounted for 26
percent of the total backlogged requests government-wide in fiscal year
2020. In fact, several DHS components had backlogs greater than some
federal departments and independent agencies (see fig. 11).
Page 26 GAO-22-105040 Freedom of Information Act
Figure 11: Comparison of Backlogs for Department of Homeland Security Components and Other Federal Agencies, Fiscal
Year 2020
Page 27 GAO-22-105040 Freedom of Information Act
FOIA-Related Employees and In fiscal year 2020, agencies government-wide reported 5,559 FOIA
Costs employees and full-time equivalents, which has generally risen since
fiscal year 2012 (see fig. 12). The total number of FOIA employees and
full-time equivalents who agencies reported performing FOIA duties
across the federal government grew by 557 (11 percent) from fiscal year
2019 to fiscal year 2020. From fiscal year 2012 through fiscal year 2020,
the total number of employees and full-time equivalents increased by
1,494 (37 percent).
Figure 12: Reported FOIA Full-Time Equivalents Government-wide, Fiscal Year 2012 through 2020
Government-wide FOIA costs have increased on both a nominal and
inflation-adjusted basis in most years from fiscal year 2012 through fiscal
year 2020. Total FOIA costs reflect a sum of request processing costs,
including administrative appeals, and litigation-related costs. OIP
guidance states that costs should include employee salaries, overhead,
and any other related expenses. From fiscal years 2019 through 2020,
the total nominal FOIA cost government-wide increased by 13 percent (12
percent adjusted for inflation, see fig. 13). From fiscal year 2012 through
Page 28 GAO-22-105040 Freedom of Information Act
fiscal year 2020, total cost increased 39 percent on a nominal basis (22
percent adjusted for inflation). Selected agency officials attributed
increased costs to factors such as obtaining contractor support,
technology investments and software licenses, or litigation.
a
Figure 13: Reported FOIA Costs Government-wide, Fiscal Year 2012 through 2020
a
Total FOIA costs reflect the sum of agency-reported request processing costs and litigation-related
costs.
FOIA Fees From fiscal years 2012 through 2020, FOIA fees collected by agencies
government-wide have steadily decreased by a total of 56 percent, from a
reported $4,788,880 to $2,113,456. Each of the selected agencies in our
review collected less in FOIA fees in fiscal year 2020 compared to fiscal
year 2019. Agencies in our review provided mixed responses, however,
on whether and to what extent the pandemic affected fees. Some
agencies cited pandemic-related issues such as the inability to provide
paper records precluding them from charging and collecting fees to cover
duplication costs or delays in processing checks sent through the mail.
Page 29 GAO-22-105040 Freedom of Information Act
Others pointed to legislative changes to FOIA, including the FOIA
Improvement Act of 2016 that changed whether federal agencies can
charge for search and duplication fees if response time is delayed.
Other FOIA Measures Agencies government-wide reported that percentages for the disposition
Showed No Significant of FOIA requests in fiscal year 2020 remained about the same compared
to fiscal year 2019 (see fig. 14). In January 2021, we reported that the
Changes in the First Year
percentage of partially granted and partially denied requests increased
of the Pandemic since fiscal year 2012.42
Compared with the
Previous Year Figure 14: Comparison of Request Disposition Government-wide, Fiscal Years 2019
and 2020
Agencies also reported little change in appeals-related metrics in fiscal
year 2020 compared to fiscal year 2019. For example, in fiscal year 2020,
agencies government-wide received 14,944 appeals (3 percent decrease
from fiscal year 2019), processed 15,243 appeals (1 percent increase),
and had 5,072 backlogged appeals (0 percent change). While the number
of appeals received and processed rose between fiscal years 2012
through 2015, these numbers have remained relatively steady since fiscal
year 2015 (see fig. 15).
42GAO-21-148.
Page 30 GAO-22-105040 Freedom of Information Act
Figure 15: FOIA Appeals Received and Processed Government-wide, Fiscal Years
2012 through 2020
In addition, agencies government-wide reported similar percentages for
appeal disposition from fiscal year 2019 to fiscal year 2020 (see fig. 16).
Figure 16: Comparison of Appeals Disposition Government-wide, Fiscal Years 2019
and 2020
Page 31 GAO-22-105040 Freedom of Information Act
Selected Agencies
Effectively Addressed
Pandemic-Related
Challenges to FOIA
Operations, but Long-
Term Challenges
Remain
Selected Agencies Took In the early months of the pandemic, which started in March 2020, four of
Steps to Resume Their the five selected agencies encountered temporary challenges preparing
employees to work in the maximum telework environment, such as
Regular Operations within
ensuring access to equipment at home or adjusting to virtual meetings.
a Few Months despite The Departments of Agriculture (USDA), Homeland Security (DHS), and
Challenges Labor (DOL), and the Environmental Protection Agency (EPA) had
telework policies and agreements in place prior to the pandemic that
enabled their FOIA programs to maintain operations. The fifth agency,
FBI, encountered different challenges because its FOIA processing must
be performed on a classified system. This limited its ability to allow FOIA
staff to telework. However, FBI officials stated they resumed limited on-
site operations by the end of April 2020.
Common challenges agencies faced at the beginning of the pandemic,
and the steps these agencies took to address them, included:
Access to information technology equipment and networks.
While telework ready, DHS and EPA described temporary challenges
related to transitioning to maximum telework. For example, DHS
officials stated management had to ensure that staff had the
equipment at home to perform work as efficiently as in the office. The
DHS telework policy enables components to provide technology and
equipment for staff to participate in telework. EPA officials stated that
moving all eligible staff to maximum telework initially strained
information technology and network systems, but said the agency
rapidly addressed the problem of interruptions in access posed by
approximately 13,000 remote employees. EPA officials also said the
agency deployed new software during the pandemic to improve the
quality of virtual meetings.
FOIA requests by mail. For example, DHS officials stated that some
components that received a low volume of mailed requests had
Page 32 GAO-22-105040 Freedom of Information Act
volunteers go into the office or asked non-FOIA staff already required
to be in the office to scan mail. They stated, however, that
components that received higher volumes of mailed requests could
not use this strategy. USDA officials also stated that generally FOIA
offices had one staff member come into the office to review and scan
mail and, if needed, mail out paper records to those requesters
without email access. Some selected agencies told us that mail
accumulated until some staff returned to the office a few months into
the pandemic. The four selected agencies that maintained their
operations through telework also encouraged requesters to submit
requests electronically.
Paper records. For example, EPA’s National FOIA Office developed
template letters and provided training to staff on giving notice to
requesters affected by its inability to search for paper records. DOL
issued a bulletin in April 2020 for FOIA coordinators to inform
requesters about inaccessible records and options for fulfilling
requests. USDA officials also stated that they encouraged staff to
contact requesters about accepting electronic records within the
scope of their requests and providing the option of receiving paper
records later. DHS officials cited activities such as logging requests
sent through the mail and scanning files responsive to requests for
teleworking staff as part of a workforce management challenge
caused by the pandemic.
Process Improvements. For example, DOL implemented electronic
signatures that facilitated its ability to finalize FOIA letters. USDA
officials told us that their legal sufficiency reviews for administrative
FOIA appeals became an entirely electronic process once OMB
mandated telework for federal employees. Several agencies stated
that these process improvements would strengthen administrative
efficiency as they continue to rely on electronic documents and
communication during the pandemic.
FBI had some unique challenges given its dual law enforcement and
intelligence mission. For example, FBI had to ensure workforce safety in
a physical office setting rather than being able to rely on telework. FBI’s
staff handles a large volume of sensitive and classified records
maintained within a classified information technology system. As a result,
all FOIA processing had to be performed on site. FBI’s FOIA and Privacy
Act program temporarily suspended operations with staff placed on
administrative leave early in the pandemic. It then resumed in-person
operations with limited staffing at varying levels until resuming full staffing
in April 2021.
Page 33 GAO-22-105040 Freedom of Information Act
Although the selected agencies said they effectively managed challenges
related to the pandemic to maintain their FOIA operations, their
experience was not necessarily representative of all federal agencies.
Office of Government Information Services (OGIS) officials told us that
some federal agencies had more difficulty managing these challenges or
encountered additional challenges. Further, OGIS’s January 2021
published assessment of agency website communications stated that 81
percent of FOIA programs receiving more than 10,000 FOIA requests in
fiscal year 2019 alerted requesters about pandemic-related delays.43
Selected Agencies OIP’s guidance includes strategies and leading practices agencies can
Employed Existing use to implement FOIA. We found the selected agencies used the
following strategies and leading practices to maintain operations during
Strategies and Leading
the pandemic:
Practices to Maintain
Operations during the Multitrack processing. All five selected agencies divided requests
Pandemic into three or more tracks for processing prior to the pandemic, which
OIP guidance recommends for agencies to achieve greater efficiency
by avoiding a scenario where a single complex request delays the
responses for many simple requests.44 USDA, DHS and FBI officials
also stated that they used performance information such as monthly
reports or real-time dashboards on the number of requests received
by component and processing time to make decisions on prioritizing
types of requests for multitrack processing, to identify opportunities for
improvement, or to allocate resources.
Increased communication with requesters. All selected agencies
posted notices on their websites describing the effects of the
pandemic on FOIA operations. These notices generally alerted
requesters to potential delays in receiving requests by mail or other
limitations related to processing. The FBI took additional steps and
implemented specialized teams that aligned personnel with certain
types of requests to develop expertise as a strategy to improve the
number of requests processed, processing time, and backlog. In
particular, FBI used specialized staff to contact requesters and
provide additional assistance in narrowing the scope of their requests.
FBI stated that its efforts resulted in approximately 540 requesters
reducing complex requests into smaller track requests by narrowing
43National Archives and Records Administration, Office of Government Information
Services, OGIS Issue Assessment: Follow-up on Agency Freedom of Information Act
(FOIA) Website Communications on COVID-19 (Jan. 27, 2021).
44Department of Justice, OIP Guidance: Processing Reminders for the Last Quarter of
Fiscal Year 2017 (July 20, 2017).
Page 34 GAO-22-105040 Freedom of Information Act
the scope of their requests in fiscal year 2020. This helped FBI reduce
associated request processing times.
Regular engagement with management. Officials at all selected
agencies held regular meetings with management and took other
steps to provide updates on progress, ensure accountability, and
obtain leadership support for making decisions about priorities and
resources. For example:
EPA discussed progress towards its strategic goal of eliminating
the backlog at quarterly performance reviews with agency senior
leadership and reported on this metric monthly. FBI officials stated
they held both monthly and weekly meetings with management
that provided information on issues such as the effect of reduced
processing capabilities during the pandemic on pending litigation.
DHS officials told us that the DHS Chief FOIA Officer sets the
strategic agenda and uses the DHS FOIA Council for its activities,
including developing goals and performance measures. The
council, comprised of component FOIA officers and other
members, met quarterly.
DOL’s Deputy Secretary and Chief FOIA Officer issued a
memorandum in January 2020 to agency heads addressing the
department’s backlog. DOL officials stated that their leadership
held regular meetings to address the backlog, hear the concerns
of agency components regarding the support needed to promote
efficiencies in FOIA processing, and provide direction concerning
new initiatives.
Routine review of processing metrics. For example, DHS produces
a monthly report to analyze FOIA production and trends. The DHS
Privacy Office stated it used this information to ask components about
increases in backlog and offer assistance when necessary. USDA
developed a FOIA dashboard that officials said is continuously
updated with progress on backlog and processing time per request.
This helped focus management attention on which offices needed to
improve performance. USDA officials told us that productivity metrics
such as the number of pages reviewed, number of consultations
required, or age of cases improved in part due to increased morale of
staff as a result of greater consideration of work-life balance during
the pandemic.
Interim releases. OIP’s COVID-19 guidance encouraged agencies to
provide interim releases as another opportunity to communicate with
requesters, such as asking whether the requester would like to revise
or narrow the scope of the request based on the initial information
Page 35 GAO-22-105040 Freedom of Information Act
received. All five selected agencies noted the helpfulness of such
interim releases that sometimes fully satisfied a requester’s
information needs, causing them to close their requests, or potentially
reduced litigation when requests could not be fulfilled within statutory
timeframes.
Proactive disclosures. OIP’s COVID-19 guidance reiterated
proactive disclosures as a practice to provide the public with efficient
access to information. OIP’s guidance stated that agencies
significantly affected by processing limitations due to the pandemic
could consider other ways to maximize efficiency, such as focusing on
proactive disclosures. For example, FBI officials said their electronic
library has more than 8,000 documents and other media available.
FBI also told us that it closed 666 requests in fiscal year 2019 and 503
requests in fiscal year 2020 by directing the requester to information
already posted online.
Selected Agencies Made
Technology and
Organizational Changes to
Address Long-Term, Non-
Pandemic Related
Challenges
Technology Updates Selected agencies continued long-term information technology
modernization efforts to improve their FOIA operations. According to the
FOIA Advisory Committee, technology remains an ongoing challenge.
The committee is considering potential solutions and best practices for
processing FOIA requests and meeting the needs of FOIA requesters.45
In addition, agencies we reviewed implemented various technology
upgrades to improve FOIA processing. For example:
FBI has been developing upgrades to its document processing
system. FBI officials told us these enhancements may help reduce
45The National Archives and Records Administration (NARA) established the FOIA
Advisory Committee in 2014 to foster dialog between the Administration and the requester
community, solicit public comments, and develop consensus recommendations for
improving FOIA administration and proactive disclosures. During the 2020 through 2022
term, the committee established a Technology Subcommittee to examine the functionality
and operation of technology-driven solutions. The Chief FOIA Officers Council also has a
Technology Committee that studies the utilization and deployment of technology in FOIA
programs.
Page 36 GAO-22-105040 Freedom of Information Act
backlog. FBI’s backlog reduction plan also includes a long-term goal
of a procurement strategy for its next generation processing system.
DHS’s Departmental Freedom of Information Act (FOIA) Backlog
Reduction Plan: 2020-2023 included a goal to improve FOIA
information technology infrastructure and described the business case
for a department-wide FOIA processing solution. The plan envisions a
consolidated, interoperable solution to eliminate duplicate processing
systems across the department.46 DHS officials stated this solution
also would create efficiencies for staff in an all-telework environment
and improve management flexibility to address, for example, an influx
of requests at a component agency or streamline reporting processes.
In DHS’s 2021 Chief Freedom of Information Act Officer Report, the
Privacy Office reported the launch of the DHS FOIA Public Access
Link. This web portal enables requesters to create accounts to submit
and track requests, as well as download released records. DHS
officials said that this portal also allows requesters to submit requests
through FOIA.gov. However, the lack of interoperability between
systems requires some components to find their own solutions for
accepting requests through FOIA.gov. While the Public Access Link
eliminates some administrative steps, DHS officials stated they must
still review all requests submitted through FOIA.gov to identify all
FOIA requests, determine duplicates, and perform other quality
checks.
DOL reported that, beginning in January 2019, the Deputy Secretary
of Labor instituted a Departmental FOIA Modernization Initiative to
promote more effective, efficient, and improved FOIA operations. As
part of this initiative, DOL began planning to implement a new case
management system before the pandemic. DOL officials stated they
moved forward with the launch during the pandemic from August
through October 2020. DOL stated that the new system is specifically
46We previously made a recommendation to DHS to determine the viability of re-
establishing the service-level agreement between components to eliminate the duplicate
processing of FOIA requests for immigration files, which was closed after DHS established
such an agreement for fiscal year 2020 and renewed it for fiscal year 2021. See GAO,
Freedom of Information Act: DHS Should Take Steps to Improve Cost Reporting and
Eliminate Duplicate Processing, GAO-15-82 (Washington, D.C.: Nov. 19, 2014). The DHS
Backlog Reduction Plan takes this a step further with its goal to eliminate duplication by
reducing the number of systems used to process FOIA requests.
Page 37 GAO-22-105040 Freedom of Information Act
configured to meet OGIS best practices and comply with DOJ
reporting requirements.47
Organizational Changes EPA, USDA, and DHS made organizational changes to improve long-
Organizational Changes term FOIA implementation. Specifically:
According to EPA officials, since at least 2014, the agency has been
implementing an agency-wide Lean Management focus to promote
continuous improvement.48 EPA officials stated that their actions to
address significant increases in FOIA requests received in fiscal years
2017 and 2018 relied on Lean Management tools and included
organizational changes. EPA officials told us that they used Lean
Management methods to analyze expedited processing and reduce
average time during fiscal year 2021 by 63 percent, and also
adjudicated 76 percent of requests for expedited processing within 10
calendar days, up from 42 percent in fiscal year 2020.
EPA also moved the FOIA program from the Office of Environmental
Information to the Office of General Counsel and merged it with the
FOIA Expert Assistance Team to form the National FOIA Office. As
part of these changes, EPA identified areas to improve FOIA
processing. For example, in 2019, EPA’s National FOIA Office
restructured internal processing steps to centralize the initial intake
review of all FOIA requests. According to EPA officials, this enabled
increased speed and efficiency for the intake review and assignment
process.
In 2019, USDA realigned its FOIA functions under its General
Counsel as the Office of Information Affairs. USDA officials stated that
prior to the realignment, personnel in staff offices processed requests
as an additional duty. They said having full-time staff process these
requests allows for faster processing and reduced backlog. USDA
47We previously reported that OGIS, in conjunction with the Department of Commerce and
EPA, identified 12 capabilities of an automated system considered as best practices for
FOIA processing. We also recommended that DOL establish a time frame for
implementing, and take actions to fully implement, recommended best practice capabilities
for enhanced processing of requests in the department’s FOIA system and online portal.
GAO-16-248.
48We recently reported that since 2014 EPA has used Lean Management principles and
tools as a means to promote continuous improvement. Other Lean Management principles
include customer focus, leadership, partnering, and information architecture. For more
information, see GAO, Chemical Assessments: Annual EPA Survey Inconsistent with
Leading Practices in Program Management, GAO-21-156 (Washington, D.C.: Dec. 18,
2020).
Page 38 GAO-22-105040 Freedom of Information Act
officials also stated that the realignment reduced the number of FOIA
offices, which improved coordination for multi-component requests.
DHS officials stated that the Privacy Office sought to consolidate or
enter into processing agreements with smaller FOIA Offices within
headquarters to improve efficiencies in FOIA processing. For
example, the Privacy Office agreed to absorb the Office of Operations
Coordination’s and the Office of Biometric Identity Management’s
respective FOIA programs. DHS reported that since the Privacy Office
now processes requests for most headquarters offices, this
centralization has helped improve the consistency of FOIA operations.
Selected Agencies Cited All five selected agencies cited a general increase in litigation as a current
Litigation as a Growing or emerging challenge prior to the pandemic. Overall, in the Department
of Justice Freedom of Information Act Litigation and Compliance Report,
Challenge to Their FOIA
DOJ annually reported on the FOIA litigation cases received in federal
Programs district courts, which increased by 117 percent (333 to 724) from 2012 to
2020, and cases decided, which increased by 105 percent (442 to 904)
during the same time period (see fig. 17).
Figure 17: FOIA Litigation Cases Received and Decided in Federal District Courts, 2012 through 2020
Our selected agencies stated that FOIA litigation affects the resources
available for processing FOIA requests and administrative appeals.
Further, they said litigation can negatively impact a FOIA program office’s
Page 39 GAO-22-105040 Freedom of Information Act
ability to process nonlitigation FOIA requests in a timely manner by
requiring them to prioritize work on responses in litigation. This can result
in an increase in backlogged requests if an office has insufficient staff to
process both litigation and nonlitigation requests. Agency officials told us
they had to assign more FOIA staff to meet court deadlines, which
resulted in less staff available for timely response to queued requests. For
example:
DHS officials reported having to reassign staff to its Litigation and
Appeals team on a long-term or permanent basis. DHS told us that
the proportion of FOIA staff on the Litigation and Appeals team
increased from 13 percent in fiscal year 2018 to 21 percent in fiscal
year 2021.
FBI officials stated that they prioritized litigation processing when
resuming operations with limited staffing at the end of April 2020. FBI
officials also told us that, in March 2021, 32 percent of their FOIA and
Privacy Act processing staff was devoted to litigation, which
represented 1 percent of all pending requests.
Several of the agencies reviewed cited litigation as a contributing cause
of increasing backlogs. In its 2021 Chief FOIA Officer Report, DOL
reported a significant increase in litigation over the past 2 years that
shifted resources away from addressing its backlog. Selected agencies
also stated requests that involve litigation tend to be complex requests.
This can involve reviewing thousands of pages of records, multiple
locations for records, or coordination between components or other
federal agencies. Additionally, USDA officials stated litigation could delay
the processing of initial requests and administrative appeals for its FOIA
components with smaller teams. Analysts on these teams may need to
balance the processing of initial requests and administrative appeals
while also assisting with the preparation of legal pleadings and the
production of records in response to FOIA lawsuits.
Finally, OGIS officials, as well as some of our selected agencies, raised
concerns about requesters’ ability to sue under FOIA after the 20-day
statutory deadline has passed.49 While agencies have used strategies
that may have helped avoid litigation, such as negotiating extended
deadlines with requesters or providing interim releases, these actions did
not always preclude their agency from being sued. Officials at selected
49See figure 1 for a simplified overview of the federal government’s Freedom of
Information Act request and appeal process.
Page 40 GAO-22-105040 Freedom of Information Act
agencies that collect data attributed the majority of their FOIA litigation to
complaints that the agency did not respond to requests within statutory
time frames, which can be particularly challenging for complex requests.
Selected Agencies
Could Address FOIA
Request Backlogs
with Improvements to
Backlog Reduction
Plans
Selected Agencies As discussed previously, FOIA request backlogs have been trending
Identified New and generally upward since fiscal year 2015 and have increased by 97
percent from fiscal year 2012 to fiscal year 2020. Among our selected
Ongoing Challenges to
agencies, we found that backlog as a percentage of requests received
Reducing FOIA Backlogs rose between fiscal years 2012 and 2020 for USDA, DOJ, FBI, DOL, and
EPA (see fig. 18). At DHS, backlogged requests have declined due, in
part, to recent temporary backlog surge efforts at Customs and Border
Protection and other components. For more information on processing
times at selected agencies, see appendix III.
Page 41 GAO-22-105040 Freedom of Information Act
Figure 18: FOIA Request Backlogs as a Percentage of Requests Received for Selected Agencies, Fiscal Years 2012 through
2020
The selected agencies identified one or more of the following new or
ongoing challenges to reducing their backlogs: increasing complexity of
requests, technology-related issues, staffing limitations, and increasing
litigation. We discussed challenges related to increasing litigation earlier
in this report and address the remaining issues below.
Increasing Complexity of Several of our selected agencies have processed rising numbers of
Requests complex requests and identified this as a contributing factor to their
backlogs. Between fiscal years 2012 and 2020, the number of complex
requests processed rose for every agency except EPA, while the share of
Page 42 GAO-22-105040 Freedom of Information Act
complex requests processed rose at three of the five agencies (see table
1 below). For example, USDA officials said that the complexity of the
requests they received increased; many of these requests required
consultations with other federal agencies and took more time to review
and process. FBI officials also cited growth in complex requests that have
multiple parts or national security sensitivities.
Table 1: Selected Agencies’ Complex Requests Processed in Fiscal Years (FY) 2012 and 2020
FY 2012 Complex FY 2020 Complex Percent
FY 2012 Complex Requests Processed FY 2020 Complex Requests Processed change, FY
Requests as Share of Total Requests as Share of Total 2012 through
Selected Agency Processed Processed Processed Processed 2020
Department of 1,696 7.8% 2,190 9.5% 29
Agriculture
Department of 111,811 58.8% 184,957 50.8% 65
Homeland Security
Department of Justice 9,738 16.0% 13,837 19.2% 42
Department of Labor 9,872 51.3% 10,639 68.0% 8
Environmental 4,135 49.2% 1,528 21.3% -63
Protection Agency
Source: GAO analysis of agency-reported Freedom of Information Act (FOIA) data on FOIA.gov. | GAO-22-105040
Technology Challenges Selected agencies cited technology-related issues as challenges to
reducing their backlogs. For example, FBI officials stated that their
system for processing FOIA requests needs an upgrade, and accordingly,
made improving its FOIA IT systems one of its backlog reduction goals.
Similarly, DHS also identified a need to update its department-wide FOIA
processing system, and included it as part of its backlog reduction plan.
In fiscal year 2020, DOL discovered 685 FOIA requests that had not been
counted during its move from its prior system to a new one. Officials said
these requests date back to fiscal year 2006. DOL attributed this to (1)
data entry and coding errors, and (2) difficulties processing increasingly
complex requests, which often involved multiple duplicate records the
prior system could not easily manage. These errors contributed to DOL’s
increased backlog, which rose from 991 in fiscal year 2019 to 1,714 in
fiscal year 2020. DOL officials reported recurring discrepancies between
internal FOIA offices about requests received, processed, and
backlogged compared to information posted on FOIA.gov and DOL’s
website, going back to 2012 and continuing through the second quarter of
fiscal year 2021. DOL attributed this to data entry errors.
Page 43 GAO-22-105040 Freedom of Information Act
Standards for Internal Control in the Federal Government states that
management should externally communicate the necessary quality
information to achieve the entity’s objectives.50 We also previously
reported that performance information should be sufficiently complete,
accurate, and consistent to document performance and support decisions
on how best to manage programs.
DOL officials told us they have adjusted their approach to training to
respond to technology-related issues. For example, agency officials told
us they trained employees on the new processing system through training
videos, providing documents with frequently asked questions on migrating
information, and establishing “rules of behavior” for working in the new
system. Since DOL was in the first year of implementing the system,
officials told us training for employees on using the new system is
ongoing. As a result, we were unable to determine if these trainings would
resolve the persistent data quality issues. Without quality information,
DOL lacks the information to not only monitor its progress in reducing its
FOIA backlog, but also accurately represent its FOIA activity to the public,
and make strategic decisions for managing its overall FOIA program.
Staffing-Related Limitations Our selected agencies also cited staffing-related issues as limitations to
addressing their backlogs. For example, USDA officials stated that the
department lost staff to other agencies in part due to a 2018 agency
policy that limited telework options. Officials said that it took time to hire
and train new employees, which contributed to slower FOIA processing
times in 2019 and 2020. FBI stated in its backlog reduction plan that
current staffing levels of its FOIA program cannot keep pace with
incoming demand and backlog reduction efforts, which were exacerbated
by an increase in litigation workload.
50GAO, Standards for Internal Control in the Federal Government, GAO-14-704G
(Washington, D.C.: Sept. 2014).
Page 44 GAO-22-105040 Freedom of Information Act
Selected Agencies’ Agencies are asked to have a backlog reduction plan if they have more
Backlog Reduction Plans than 1,000 requests in the previous year, according to DOJ guidance.51 In
Varied in the Extent to addition, the guidance states that agencies should focus on closing their
10 oldest backlogged requests and describe how they intend to close
Which They Met those requests (see fig. 19 for examples of actions agencies reported
Requirements and they took to address their backlogs). Office of Information Policy (OIP)
Performance Management officials confirmed that this requirement is current, although agencies are
Practices no longer required to report separate backlog reduction plans outside of
their Chief FOIA Officer Report.
51DOJ’s guidance for agency Chief FOIA Officer Reports states that, as part of their
reports, agencies with a backlog of more than 1,000 requests in the previous fiscal year
should explain their plans to reduce backlogs in the next fiscal year. Agencies are also
asked to detail how the agency developed and plans to execute their plan. Department of
Justice, Office of Information Policy, Guidelines for 2021 Chief FOIA Officer Reports
(Sept. 24, 2020); and OIP Guidance for Further Improvement Based on 2019 Chief FOIA
Officer Reports (January 22, 2020).
Page 45 GAO-22-105040 Freedom of Information Act
Figure 19: Examples of Selected Agencies’ Actions to Reduce Freedom of
Information Act (FOIA) Request Backlogs
We have previously reported that agencies can address major
management challenges with the performance management practices
required under GPRAMA.52 These challenges may include FOIA
backlogs. As such, we compared our selected agencies’ backlog
reduction plans to the requirements described above as well as
Standards for Internal Control in the Federal Government. Our
assessment is shown in figure 20.
52GAO-20-222 and GAO-16-510.
Page 46 GAO-22-105040 Freedom of Information Act
Figure 20: Summary of Our Assessment of Selected Agencies’ FOIA Backlog
Reduction Plans
Legend: ● – Generally met, ◑ - Partially Met, ○ – Not met
Note: For the purposes of our analysis, we are excluding the Department of Justice (DOJ). DOJ’s
FOIA program is decentralized, with 31 separate FOIA offices handling requests under Office of
Information Policy oversight. Many DOJ components develop their own backlog reduction plans, such
as FBI.
Performance Goals Our selected agencies had performance goals for reducing their FOIA
request backlogs. As stated above, a performance goal is a target level of
performance expressed as a tangible, measurable objective, against
which actual achievement can be compared. For example, DHS’s backlog
reduction plan established five backlog reduction goals, including
reducing high-volume component backlogs by 10 percent and low-volume
component backlogs by 15 percent annually. EPA officials stated that the
agency’s draft fiscal year 2022-2026 strategic plan sets a goal to
eliminate EPA’s FOIA backlog by the end of the fiscal year 2026. DOL
officials cited the OMB’s Open Government Directive instructing agencies
to plan a backlog reduction of at least 10 percent per year as their
backlog reduction goal.
Performance Measures Each of our selected agencies had performance measures—specifically
the number or percent of FOIA requests in backlog—that they used to
track their progress in meeting their backlog reduction goals. However,
although DOL has performance measures, as previously discussed, it
Page 47 GAO-22-105040 Freedom of Information Act
may not have reliable data to track its backlog. As stated above,
performance measures are particular values or characteristics used to
measure output or outcome.
Planned Actions As described previously, all but one of the agencies in our review
documented the planned actions they are taking to reduce their backlog.
Additionally, while Customs and Border Protection (CBP) documented
some actions, we found it unclear whether they are sufficient to result in
sustained backlog reduction at CBP. As stated above, planned actions
are actions intended to address particular major management challenges.
CBP identified a number of actions it planned to take in fiscal year 2021,
including using Privacy Office and contract employees to assist with
processing requests. We found that while CBP has reduced its backlog
temporarily as a result of surge efforts described to us by officials, its
backlog rose when the efforts ended. DOJ does not require component-
level backlog reduction plans. DHS components are generally responsible
for their own FOIA program operations with some oversight from the
Privacy Office. However, we have previously reported that agencies
should document comprehensive backlog reduction plans to effectively
respond to the needs of requesters and the public.53 Thus, although a
component may not be required to develop a backlog reduction plan,
such plans could help ensure that backlogs remain manageable.
While USDA provided examples of written assessments of its FOIA
administration, we found that more emphasis could be placed on planned
activities for further backlog reduction. An official stated they have
ongoing conversations with components and reviews of real-time
performance data, but these plans are not documented. However, the
USDA official added that the agency’s FOIA program lacks a direct
funding source and obtains funding from inter-agency agreements, which
limits its ability to make longer-term plans.
Standards for Internal Control in the Federal Government states that
documentation provides a means to retain organizational knowledge and
mitigate the risk of having that knowledge limited to a few personnel, as
well as a means to communicate that knowledge as needed to external
parties. By better documenting its backlog reduction efforts, USDA could
53GAO, Freedom of Information Act: Agencies Are Implementing Requirements, but
Additional Actions Are Needed, GAO-18-365 (Washington, D.C.: June 25, 2018).
Page 48 GAO-22-105040 Freedom of Information Act
ensure continuity in its efforts and demonstrate how such efforts
contributed to meeting backlog reduction performance goals.
Milestones DHS, EPA, DOL, and FBI established milestones for when they expected
to complete key events in reducing their respective backlogs. For
example, EPA charts progress toward backlog reduction monthly and
quarterly to monitor whether it is on track to meet its strategic goal of
eliminating the backlog. As stated above, milestones are scheduled
events signifying the completion of a major deliverable or a set of related
deliverables or a phase of work.
However, other selected agencies either had not established milestones
for their backlog reduction efforts or had not documented them. For
example, within DHS, CBP officials pointed to their ability to maintain
operations during the pandemic and significant reduction in their backlog
as an example of progress toward backlog reduction. It was unclear that
they had interim milestones established or documented progress toward
annual goals. USDA tracks the department’s and components’ progress
toward meeting end-of-year backlog reduction goals in real time.
However, progress is not documented against milestones.
Responsible Office/Officials All of our selected agencies had appointed officials and established
offices to manage FOIA processing and backlog reduction activities. As
stated above, agencies should identify an agency official responsible for
resolving the challenge. FOIA requires that each agency designate a
Chief FOIA Officer who is a senior official at the Assistant Secretary or
equivalent level responsible for efficient and appropriate compliance with
FOIA, as well as recommending to the head of the agency such
adjustments to agency practices, policies, personnel, and funding as may
be necessary to improve its implementation.54 In addition, our selected
agencies each established offices to support FOIA activities.
545 U.S.C. § 552(j)(1)-(2).
Page 49 GAO-22-105040 Freedom of Information Act
Data Reporting OIP annually updates guidance to agencies for submitting their Annual
Requirements Do Not FOIA Reports and Chief FOIA Officer Reports.55 OIP uses these reports
Always Capture to assess agency compliance with FOIA. Agency officials at DHS stated
that the reporting requirements created incentives for agencies to pay
Information Agencies attention to key statistics, including the backlog. A USDA official stated
Need to Manage Their that the requirements provided opportunities to discuss shared issues
FOIA Programs among agencies. FBI officials stated that the reporting requirements
helped ensure agencies collected data they found useful for informing the
requester community about agency FOIA operations. DOL and EPA
officials did not express a view on the usefulness of the reporting
requirements.
However, officials from all five of the agencies told us that the reporting
requirements can take significant time and resources to compile. We
have previously reported that agencies should ensure that performance
information is used, not simply collected and reported as a compliance
exercise.56
We found potential opportunities to streamline or reduce reporting
requirements. OIP requires agencies to report data on, for example,
backlogged requests for both the current and previous fiscal year in each
annual report. This information is duplicative of what is reported in annual
reports or previously reported in annual reports from prior years. As
stated above, reporting duplicative data is an administrative burden for
agencies.
We also found two areas where data could help agencies address
emerging challenges: (1) the causes of FOIA litigation, and (2) requests
involving unusual circumstances.
Litigation Causes. As discussed previously, FOIA litigation is
increasing, which can contribute to slower request processing and
55OIP publishes a handbook for agencies to use in reporting FOIA data for their Annual
FOIA Reports. This handbook covers guidance for processing requests and appeals
throughout the fiscal year, as well as guidance and instructions for preparing the Annual
FOIA Report. Additionally, OIP issues guidance to agencies for the Chief FOIA Officer
Report that asks agencies to provide an overall picture of their activities, organized by five
key topical areas with data and examples. The five key topical areas are applying the
presumption of openness, ensuring an effective system for responding to requests,
increasing proactive disclosures, utilizing technology, and reducing backlogs.
56GAO, Government Performance: GPRA Modernization Act Provides Opportunities to
Help Address Fiscal, Performance, and Management Challenges, GAO-11-466T
(Washington, D.C.: Mar. 16, 2011).
Page 50 GAO-22-105040 Freedom of Information Act
increasing backlogs. The Annual FOIA Report requires agencies to
report on the sum of all costs expended on litigation, but not other key
information about emerging issues such as the number of FOIA
litigation cases filed as the result of the agency not responding to a
request within statutory deadlines. Such information is important to
understand the extent to which this challenge affects agencies’ ability
to effectively implement FOIA. More information on litigation, such as
the complexity of the request tied to litigation or how long a request
remained backlogged before a requester filed a lawsuit, may help
agencies manage this emerging issue. Officials at OGIS, DHS, and
FBI also suggested that reporting information related to litigation
would be useful.
Unusual Circumstances. According to OIP officials, agencies must
track when they claim unusual circumstances in order to count
requests beyond the statutory time period, ordinarily 20 working days
that may be extended up to 10 additional working days (30 days), and
therefore backlogged. However, neither the Annual FOIA Report nor
the Chief Officer Report publicly document the number of times
agencies invoke unusual circumstances.57 Officials at USDA and EPA
confirmed they did not independently track the total number of
requests claiming unusual circumstances. OGIS officials told us that
30 days is an unrealistic time frame for processing complex requests
when there are unusual circumstances. More information on FOIA
requests that meet the conditions for unusual circumstances, such as
how many and the reasons why, would help agencies and requesters
understand the effect of FOIA’s time limits on backlogs.
Standards for Internal Control in the Federal Government states that
management should use quality information to achieve the entity’s
objectives. In particular, information should be used to evaluate the
entity’s performance in achieving key objectives and addressing risks.
Further, we have previously stated that agencies like OIP need to
consider the differing information needs of various users to ensure that
performance information will be both useful and used in decision-
making.58 A more holistic reassessment of the reporting requirements
could help align the work required from agencies to collect the information
57OIP officials told us that the number of requests citing unusual circumstances may be
determined in the raw data submitted by agencies for the Annual FOIA Report. However,
we did not find always find the raw data available for each of our selected agencies or for
all years for this review.
58GAO-11-466T.
Page 51 GAO-22-105040 Freedom of Information Act
along with its usefulness in managing performance and addressing
challenges such as request backlogs.
Conclusions The COVID-19 pandemic has had various effects on key metrics for FOIA
administration. In general, we found that the selected agencies in our
review managed the effects of the pandemic quickly and effectively after
facing initial challenges. However, increasing FOIA request backlogs
remain a persistent challenge. Other challenges also have emerged that
may affect the efficiency of FOIA processing, such as FOIA litigation and
the increasing complexity of requests. Together, these challenges may
limit agencies’ ability to respond to the needs of requesters and the
public, which is critical for an open and transparent government.
Individual agencies we reviewed have taken some and could take
additional steps to address various deficiencies. DOL identified errors
leading to inaccurate reporting of FOIA data, which officials attributed to
their prior FOIA processing system. DOL has taken steps to train
employees on the new system and strengthen controls. These efforts are
ongoing. However, we were unable to determine if these trainings would
resolve persistent data quality issues at DOL. Without ensuring the quality
of data in the system, DOL may not have information needed to address
its FOIA backlog and effectively manage its FOIA program.
DHS developed a broad backlog reduction plan that includes a number of
goals for addressing the department’s persistent backlog. However,
individual DHS components have significant backlogs that contribute to
the department’s backlog. Documenting a backlog reduction plan that
includes key performance information—including performance goals,
measures, milestones, and planned actions for backlog reduction—could
help ensure sustained backlog reduction at both the component and
department level.
USDA’s FOIA program included a number of elements important to
addressing its backlog, including backlog reduction goals, real-time
performance tracking, and dedicated senior leadership. However, USDA
could better document key elements of its backlog reduction efforts, such
as planned actions to address the backlog and milestones for assessing
progress. Documenting these actions and milestones could better ensure
that USDA makes data-driven decisions for allocating resources and
assessing progress toward backlog reduction efforts.
Agencies regularly report a number of data points related to their FOIA
processing and operations to OIP. While some of our selected agencies
Page 52 GAO-22-105040 Freedom of Information Act
found these requirements useful for managing their performance, they
also noted that collecting and reporting data used significant time and
resources. Additionally, we identified information that OIP did not require
agencies to report on, but affected our selected agencies’ ability to
effectively manage their FOIA programs, such as data on causes of FOIA
litigation and use of the “unusual circumstances” designation. By
reassessing the reporting process, OIP could help align the workload
required for agencies to meet the reporting requirements and ensure they
have the information they need to meet their responsibilities under FOIA.
Recommendations for We are making four recommendations: one each to DOL, DHS, USDA,
and OIP.
Executive Action
The Chief FOIA Officer of the Department of Labor should address
risks to sustained backlog reduction efforts by identifying training and
other needs to resolve data quality issues as part of its regular
oversight of component FOIA programs. (Recommendation 1)
The Chief Privacy Officer of the Department of Homeland Security, as
the department’s Chief FOIA Officer, should work with agency
components to develop backlog reduction plans that specify goals and
measures for reducing the FOIA backlog, provide specific milestones
for backlog reduction efforts, and identify planned actions to reduce
backlog. (Recommendation 2)
The Chief FOIA Officer of the Department of Agriculture should better
document agency backlog reduction efforts, including its milestones
and planned actions for reducing its FOIA backlog, and address
challenges and risks to departmental backlog reduction efforts.
(Recommendation 3)
The Director of the Office of Information Policy should evaluate the
usefulness and burden of performance information collected, and
identify ways reporting can inform current and emerging FOIA
challenges and risks, such as the number of requests for which
unusual circumstances apply or the effect of litigation on overall FOIA
request processing and backlog. (Recommendation 4)
Agency Comments We provided a draft of this report to CBP, DOJ, DOL, DHS, EPA, FBI,
NARA, and USDA.
and Our Evaluation
DOJ’s Office of Information Policy provided written comments, which are
reproduced in appendix VI, and technical comments, which we
incorporated as appropriate. In its written comments, DOJ agreed with
our recommendation stating that they will continue to seek ways to
Page 53 GAO-22-105040 Freedom of Information Act
reduce reporting burden on agencies and collect metrics necessary for
effective FOIA administration. However, DOJ wrote that some examples
we included as potential opportunities to streamline reporting
requirements, such as removing comparison data, would not meaningfully
reduce agency reporting burden and there were costs to updating the
Annual FOIA Report metrics. We suggest that DOJ explore whether the
FOIA.gov Annual Report tool could automate the comparison metric by
obtaining the data from other required sections of the current and
previous year’s report. DOJ also may identify other opportunities by
evaluating the usefulness of metrics for the varying users of the data. This
could help reduce agencies’ burden or mitigate the burden from new
requests for data on emerging challenges.
DOL provided written comments, which are reproduced in appendix VII.
In its written comments, DOL agreed with our recommendation stating
that it was in line with DOL’s continuing plans to improve FOIA
processing.
DHS provided written comments, which are reproduced in appendix V,
and technical comments, which we incorporated as appropriate. In its
written comments, DHS agreed with our recommendation stating that the
DHS Privacy Office will direct components to develop backlog reduction
plans in fiscal year 2022 for implementation beginning in fiscal year 2023.
The USDA Director for the Office of Information Affairs provided oral
comments and examples of recent FOIA program assessments via email.
USDA intends to use these assessments and others to develop a more
refined backlog reduction plan. We reviewed the assessments and
agreed that they could support agency backlog reduction efforts. USDA
stated that it concurred with our recommendation via email.
EPA provided written comments, which are reproduced in appendix VIII.
NARA provided written comments, which are reproduced in appendix IX,
and technical comments, which we incorporated as appropriate. FBI also
provided technical comments, which we incorporated as appropriate.
We are sending copies to the appropriate congressional committees, the
Attorney General of the United States, the Secretary of Agriculture, the
Secretary of Homeland Security, the Secretary of Labor, the Administrator
of the Environmental Protection Agency, and the Archivist of the United
States. In addition, the report will be available at no charge on the GAO
website at http://www.gao.gov.
Page 54 GAO-22-105040 Freedom of Information Act
If you or your staffs have any questions about this report, please contact
me at (202) 512-6806 or mctiguej@gao.gov. Contact points for our
Offices of Congressional Relations and Public Affairs may be found on
the last page of this report. GAO staff members who made key
contributions to this report are listed in appendix X.
James R. McTigue, Jr.
Director, Strategic Issues
Page 55 GAO-22-105040 Freedom of Information Act
List of Addressees
The Honorable Patrick Leahy
Chairman
The Honorable Richard Shelby
Vice Chairman
Committee on Appropriations
United States Senate
The Honorable Ron Wyden
Chairman
The Honorable Mike Crapo
Ranking Member
Committee on Finance
United States Senate
The Honorable Patty Murray
Chair
The Honorable Richard Burr
Ranking Member
Committee on Health, Education, Labor, and Pensions
United States Senate
The Honorable Gary C. Peters
Chairman
The Honorable Rob Portman
Ranking Member
Committee on Homeland Security and Governmental Affairs
United States Senate
The Honorable Dick Durbin
Chair
The Honorable Chuck Grassley
Ranking Member
Committee on the Judiciary
United States Senate
The Honorable Rosa L. DeLauro
Chair
The Honorable Kay Granger
Ranking Member
Committee on Appropriations
House of Representatives
Page 56 GAO-22-105040 Freedom of Information Act
The Honorable Frank Pallone, Jr.
Chairman
The Honorable Cathy McMorris Rodgers
Republican Leader
Committee on Energy and Commerce
House of Representatives
The Honorable Bennie G. Thompson
Chairman
The Honorable John Katko
Ranking Member
Committee on Homeland Security
House of Representatives
The Honorable Carolyn B. Maloney
Chairwoman
The Honorable James Comer
Ranking Member
Committee on Oversight and Reform
House of Representatives
The Honorable Richard E. Neal
Chairman
The Honorable Kevin Brady
Republican Leader
Committee on Ways and Means
House of Representatives
The Honorable John Cornyn
United States Senate
Page 57 GAO-22-105040 Freedom of Information Act
Appendix I: Objectives, Scope, and
Appendix I: Objectives, Scope, and
Methodology
Methodology
Our objectives were to assess (1) how key measures of Freedom of
Information Act (FOIA) administration have changed during the
Coronavirus Disease 2019 (COVID-19) pandemic from fiscal years 2019
through 2020 and over time from fiscal years 2012 through 2020; (2) the
extent to which selected agencies adapted their operations to meet FOIA
requirements during the pandemic; and (3) the extent to which selected
agencies’ backlog reduction plans align with FOIA requirements, internal
controls, and leading practices for performance management.
To address our first objective, we analyzed the changes in key FOIA
measures government-wide from fiscal years 2019 to 2020 related to:
the number of FOIA requests received and processed;
the number of backlogged FOIA requests and appeals;
the disposition of processed FOIA requests and appeals;
the processing time for FOIA requests and appeals;
FOIA fees assessed; and
FOIA staffing and costs.
For context, we also analyzed FOIA data for long-term trends from fiscal
years 2012 through 2020. We used fiscal year 2012 as the starting point
for those analyses to be consistent with analyses presented in our prior
work.1 We retrieved aggregated data from the required annual and
quarterly reports filed with the Department of Justice (DOJ) and available
on DOJ’s FOIA.gov website. The number of distinct agencies captured in
the data fluctuated between 99 (fiscal year 2012) and 119 (fiscal year
2020). We also reviewed DOJ guidance and DOJ’s Office of Information
Policy (OIP) reports, and interviewed relevant OIP officials about changes
in the data attributable to the pandemic.
To address all three objectives, we selected a nongeneralizable sample
of five agencies for review based on agency-reported statistics on
FOIA.gov including the number of FOIA requests received and processed
and changes in the number of backlogged requests and appeals. After
applying these criteria, we narrowed our list of agencies with the largest
1GAO, Freedom of Information Act: Update on Federal Agencies’ Use of Exemption
Statutes, GAO-21-148 (Washington, D.C.: Jan. 12, 2021); Freedom of Information Act:
Federal Agencies’ Recent Implementation Efforts, GAO-20-406R (Washington, D.C.: Mar.
11, 2020); and Freedom of Information Act: Agencies Are Implementing Requirements,
but Additional Actions Are Needed, GAO-18-365 (Washington, D.C.: June 25, 2018).
Page 58 GAO-22-105040 Freedom of Information Act
Appendix I: Objectives, Scope, and
Methodology
number of requests processed between fiscal year 2019 and 2020, the
largest number of backlogged requests and appeals in those same years,
and the largest percentage changes in backlogged requests. From the
resulting lists, we selected agencies that would provide variety in terms of
the size of the FOIA office and the type of agency (e.g., agencies in the
intelligence community, which face additional challenges in processing
FOIA requests). We also selected one component for each of the two
largest agencies using similar criteria. Based on this analysis, we
selected:
Department of Agriculture,
Department of Homeland Security and Customs and Border
Protection,
DOJ and FBI,
Department of Labor, and
Environmental Protection Agency.
In addition, we analyzed the changes in key FOIA measures for the same
time periods at the five selected agencies using the data from FOIA.gov.
We also interviewed relevant officials from these agencies about changes
in their data attributable to the pandemic.
FOIA data provides means and medians for processing times at the
agency level, as well as the number of requests per agency for each year.
From this, we are able to calculate government-wide means each year:
the government-wide mean is equal to the weighted sum of the agency
means, where weights are the relative numbers of requests. We also
know from the agency level statistics that extreme values skew the
processing times, i.e., the means are generally greater than the medians.
Specifically, across all fiscal years, for simple requests, 88 percent of
agencies’ means are greater than or equal to the medians, with 7 percent
equal; for complex requests, 72 percent of means are greater than or
equal to the medians, with 19 percent equal; for expedited requests, 91
percent of means are greater than or equal to the medians, with 42
percent equal; and for appeals, 90 percent of means are greater than or
equal to the medians, with 42 percent equal. In such a situation, a median
is a helpful measure of central tendency since it is not sensitive to
extreme values. However, there are no government-wide data on
individual requests and appeals that could be used to compute median
processing times, and the median processing time government-wide
cannot be directly calculated based on the agency medians. As an
Page 59 GAO-22-105040 Freedom of Information Act
Appendix I: Objectives, Scope, and
Methodology
alternative, we estimate government-wide medians by weighting the
agency-level medians by the numbers of requests/appeals processed by
each agency. These numbers should be understood as estimates only
and are not necessarily equal to the government-wide median.
To assess data reliability, we reviewed relevant documentation on steps
taken to ensure the consistency of data on FOIA.gov and interviewed
DOJ officials. We electronically tested the data by identifying outliers and
missing values, as well as correcting obvious inconsistencies, such as
variations in agency name. From selected agency officials, we learned
that agencies may use a variety of methods to estimate and report data
on FOIA staffing and costs. While these estimates provide reliable
information about overall trends government-wide, this may limit the
certain uses of these data.2 Overall, we found the data to be sufficiently
reliable for purposes of our reporting objectives.
For our second objective, we assessed the extent to which selected
agencies faced challenges and adapted their FOIA operations to meet
statutory requirements during the COVID-19 pandemic. We reviewed
information from the selected agencies to determine how their FOIA
operations had responded to the pandemic, as well as guidance and best
practices for agencies issued by OIP. We evaluated selected agencies’
documentation of standard operating procedures, policies, or guidance
describing changes to FOIA processing after the onset of the pandemic.
We also reviewed selected agencies’ published reports to DOJ describing
the challenges posed by the pandemic and their responses. Finally, we
obtained written responses or interviewed selected agency officials
regarding pandemic-related and other long-term challenges to their FOIA
processing operations. Based on the responses from the selected
agencies, we analyzed DOJ-published data on litigation from 2012 to
2020.
For our third objective, we evaluated the extent to which selected
agencies’ backlog reduction plans aligned with FOIA requirements,
Standards for Internal Control in the Federal Government, and leading
2For example, we previously reported that FOIA litigation costs could not be fully
determined in cases where the plaintiff prevailed because not all federal agencies track
their costs for individual lawsuits. GAO, Freedom of Information Act: Litigation Costs For
Justice and Agencies Could Not Be Fully Determined, GAO-16-667 (Washington, D.C.:
Sept. 8, 2016).
Page 60 GAO-22-105040 Freedom of Information Act
Appendix I: Objectives, Scope, and
Methodology
practices for performance management.3 We reviewed agencies’
documentation related to their backlog reduction plans as well as
strategic plans and other supporting documentation. We also reviewed
the FOIA data collected by the selected agencies and their performance
goals and measures for managing their FOIA programs. We assessed
agencies’ plans and activities against key practices for addressing major
management challenges in our 2016 report, Managing For Results:
Agencies Need to Fully Identify and Report Major Management
Challenges and Actions to Resolve them in their Agency Performance
Plans (GAO-16-510).4 We interviewed selected agency officials to
determine steps agencies had taken to reduce FOIA backlogs, including
officials at OIP and the Office of Government Information Services at the
National Archives and Records Administration, to provide context on
agencies’ backlog reduction activities and planning efforts. Finally, we
reviewed OIP guidance and published best practices on backlog
reduction. For the purposes of our analysis, we did not directly assess
DOJ, which has a decentralized FOIA program consisting of 31 separate
FOIA offices handling requests under OIP oversight. DOJ components
are responsible for managing their own FOIA programs, including backlog
reduction activities.
To assess the reliability of selected agencies’ internal FOIA data, we
analyzed the data for potential issues and interviewed agency officials.
Specifically, we reviewed monthly or quarterly data provided by selected
agencies on FOIA processing and backlogs and compared it with
FOIA.gov data to identify any inconsistencies or errors. We also
interviewed or obtained written responses from knowledgeable officials at
the selected agencies about how they collect and report data, systems
used, and how they correct any issues. Based on the information
provided by selected agencies, we found the data sufficiently reliable for
the purposes of describing selected agencies’ efforts for backlog
reduction and the growth of litigation.
We conducted this performance audit from February 2021 to January
2022 in accordance with generally accepted government auditing
standards. Those standards require that we plan and perform the audit to
3GAO, Standards for Internal Control in the Federal Government, GAO-14-704G
(Washington, D.C.: Sept. 2014).
4GAO, Managing For Results: Agencies Need to Fully Identify and Report Major
Management Challenges and Actions to Resolve Them in Their Agency Performance
Plans, GAO-16-510 (Washington, D.C.: June 15, 2016).
Page 61 GAO-22-105040 Freedom of Information Act
Appendix I: Objectives, Scope, and
Methodology
obtain sufficient, appropriate evidence to provide a reasonable basis for
our findings and conclusions based on our audit objectives. We believe
that the evidence obtained provides a reasonable basis for our findings
and conclusions based on our audit objectives.
Page 62 GAO-22-105040 Freedom of Information Act
Appendix II: Key Examples of Backlog
Appendix II: Key Examples of Backlog
Reduction Initiatives and Guidance
Reduction Initiatives and Guidance
Freedom of Information Act (FOIA) request backlogs have been a long-
standing issue, becoming the subject of various executive orders,
memorandums, and guidance documents. Key examples of these
documents that called for agencies to make progress in backlog reduction
and develop plans include:
Executive Order 13392 (2005).1 The executive order requires agencies
to identify ways to eliminate or reduce their FOIA backlogs, consistent
with available resources, and consider the volume and complexity of their
pending FOIA requests. Agencies are to develop a plan which, among
other things, would include specific activities for eliminating or reducing
the agency’s FOIA backlog.
Attorney General’s Report to the President Pursuant to Executive
Order 13,392, Entitled “Improving Agency Disclosure of Information”
(2008).2 As part of its report to the President on the implementation of
Executive Order 13392, the Department of Justice (DOJ) recommended
that any agency which has a backlog of requests and which has not made
progress in backlog reduction over the last 2 years should develop a plan
to reduce its backlog. DOJ also recommended that agencies consider
whether appropriate staffing and agency support is being given to FOIA
activities.
Guidance on Preparing Backlog Reduction Plans (2008).3 The Office
of Information and Privacy issued guidance on preparing the backlog
reduction plans recommended in the Attorney General’s 2008 report. The
guidance states that agencies which had a backlog in the previous fiscal
year (fiscal year 2007) that was higher than its backlog at the end of fiscal
year 2005 should prepare a plan. The plan should focus on how the
agency would reduce the number and age of backlogged requests each
year, focusing on reducing the overall number of backlogged requests
and, at a minimum, the age of the 10 oldest backlogged requests. The
Office of Information and Privacy’s guidance also states that plans should
consider whether appropriate staffing and agency support is being given
to FOIA activities and include specific activities to eliminate or reduce the
1Exec. Order No. 13392, Improving Agency Disclosure of Information, 70 Fed. Reg.
75373, § 3(a)-(b) (Dec. 14, 2005).
2Department of Justice, Attorney General’s Report to the President Pursuant to Executive
Order 13,392, Entitled “Improving Agency Disclosure of Information” (May 30, 2008).
3Department of Justice, Office of Information and Privacy, Guidance on Preparing Backlog
Reduction Plans (June 27, 2008).
Page 63 GAO-22-105040 Freedom of Information Act
Appendix II: Key Examples of Backlog
Reduction Initiatives and Guidance
agency’s FOIA backlog, including changes that will make the processing
of FOIA requests more streamlined and effective. Finally, the guidance
states agencies are to increase their reliance on releasing records in a
manner that did not require the public to make a request for the records
under the FOIA.
Open Government Directive (2009).4 The Office of Management and
Budget (OMB) issued the Open Government Directive in response to the
President’s Memorandum on Transparency and Open Government, also
issued in 2009.5 As part of the directive, OMB requires agencies with
significant pending backlogs of outstanding FOIA requests to reduce their
backlogs by 10 percent each year.
Guidance on Reducing Backlogs and Improving Timeliness (2014).6
The Office of Information Policy (OIP) held a best practices workshop on
reducing backlogs and improving timeliness, then issued guidance
highlighting four methods: (1) utilizing resources effectively, (2) routinely
reviewing metrics, (3) emphasizing staff training, and (4) obtaining
leadership support.
Cross-Agency Priority Goal on FOIA (2016). In 2016, the
administration established a cross-agency priority goal to “promote
greater openness and timeliness throughout the Federal Government by
improving FOIA processes and enhancing the requester experience.” We
have previously reported cross-agency priority goals are intended to
cover areas where increased collaboration between multiple federal
agencies is needed to improve progress towards shared, complex policy
or management objectives.7
4Office of Management and Budget, Open Government Directive, OMB Memorandum M-
10-06 (Washington, D.C.: Dec. 8, 2009).
5 Memorandum on Transparency and Open Government, 74 Fed. Reg. 4685 (Jan. 21,
2009).
6Department of Justice, Office of Information Policy, Reducing Backlogs and Improving
Timeliness (Aug. 15, 2014).
7For more information about Cross-Agency Priority Goals, see: GAO, Government
Performance Management: Key Considerations for Implementing Cross-Agency Priority
Goals and Progress Addressing GAO Recommendations, GAO-21-104704 (Washington,
D.C.: Sept. 28, 2021); and Managing for Results: OMB Improved Implementation of
Cross-Agency Priority Goals, But Could Be More Transparent About Measuring Progress,
GAO-16-509 (Washington, D.C.: May 20, 2016).
Page 64 GAO-22-105040 Freedom of Information Act
Appendix II: Key Examples of Backlog
Reduction Initiatives and Guidance
Guidelines for Chief FOIA Officer Reports (annual).8 Each year, OIP
issues guidance to agencies for completing their Chief FOIA Officer
Reports. As part of this guidance, OIP asks agencies with more than
1,000 backlogged requests in the previous fiscal year whether they
implemented a backlog reduction plan and, if so, to describe their efforts
and whether they achieved success. If agencies have a backlog of more
than 1,000 requests for the current reporting year, OIP also asks about
plans for reducing their backlog in the upcoming year. Further, OIP issues
annual guidance for further improvement based on reviewing and
assessing agencies’ reports, which often highlight efforts to reduce
backlogs.
8Department of Justice, Office of Information Policy, Guidelines for the 2022 Chief FOIA
Officer Reports (Sept. 30, 2021).
Page 65 GAO-22-105040 Freedom of Information Act
Appendix III: Average and Median Number of
Appendix III: Average and Median Number of
Days to Process Simple, Complex, and
Days to Process Simple, Complex, and
Expedited Requests
Expedited Requests
General note: According to the Department of Justice, the statutory time
period for responding to a request does not begin until an agency
receives a perfected request.1 We have flagged cases where more than
10 percent of requests were unperfected, and therefore not labeled as
simple, complex, or expedited.
Figure 21: Average and Median Number of Days to Process Simple, Complex, and Expedited Requests and Appeals at the
Department of Agriculture, Fiscal Years 2012-2020
1DOJ defines a perfected request as a request for records which reasonably describes
such records and is made in accordance with published rules stating the time, place, fees
(if any) and procedures to be followed. Accordingly, agencies do not assign a track to
unperfected requests that do not reasonably describe the records sought or are otherwise
improperly made.
Page 66 GAO-22-105040 Freedom of Information Act
Appendix III: Average and Median Number of
Days to Process Simple, Complex, and
Expedited Requests
Figure 22: Average and Median Number of Days to Process Simple, Complex, and Expedited Requests and Appeals at the
Department of Homeland Security, Fiscal Years 2012-2020
Page 67 GAO-22-105040 Freedom of Information Act
Appendix III: Average and Median Number of
Days to Process Simple, Complex, and
Expedited Requests
Figure 23: Average and Median Number of Days to Process Simple, Complex, and Expedited Requests and Appeals at
Customs and Border Protection, Fiscal Years 2012-2020
a
More than 10 percent of requests for this agency for this year were not labeled as simple, complex,
or expedited and therefore are not reflected in this measure.
Page 68 GAO-22-105040 Freedom of Information Act
Appendix III: Average and Median Number of
Days to Process Simple, Complex, and
Expedited Requests
Figure 24: Average and Median Number of Days to Process Simple, Complex, and Expedited Requests and Appeals at the
Department of Justice, Fiscal Years 2012-2020
Page 69 GAO-22-105040 Freedom of Information Act
Appendix III: Average and Median Number of
Days to Process Simple, Complex, and
Expedited Requests
Figure 25: Average and Median Number of Days to Process Simple, Complex, and Expedited Requests and Appeals at the
Federal Bureau of Investigation, Fiscal Years 2012-2020
a
The Office of Information Policy reviews administrative appeals for Department of Justice
components.
Page 70 GAO-22-105040 Freedom of Information Act
Appendix III: Average and Median Number of
Days to Process Simple, Complex, and
Expedited Requests
Figure 26: Average and Median Number of Days to Process Simple, Complex, and Expedited Requests and Appeals at the
Department of Labor, Fiscal Years 2012-2020
Page 71 GAO-22-105040 Freedom of Information Act
Appendix III: Average and Median Number of
Days to Process Simple, Complex, and
Expedited Requests
Figure 27: Average and Median Number of Days to Process Simple, Complex, and Expedited Requests and Appeals at the
Environmental Protection Agency, Fiscal Years 2012-2020
Page 72 GAO-22-105040 Freedom of Information Act
Appendix IV: Key Measures of Freedom of Appendix IV: Key Measures of Freedom of
Information Act Processing for the Chief
Information Act Processing for the Chief
Financial Officers Act Agencies
Financial Officers Act Agencies
Figure 28: Key Measures of Freedom of Information Act Processing for the Chief Financial Officers Act Agencies for Fiscal
Year 2020
a
In fiscal year 2019, the Small Business Administration had no backlogged requests.
Page 73 GAO-22-105040 Freedom of Information Act
Appendix V: Comments from the Department
Appendix V: Comments from the Department
of Homeland Security
of Homeland Security
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Appendix V: Comments from the Department
of Homeland Security
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Appendix V: Comments from the Department
of Homeland Security
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Appendix VI: Comments from the
Appendix VI: Comments from the Department
of Justice
Department of Justice
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Appendix VI: Comments from the Department
of Justice
Page 78 GAO-22-105040 Freedom of Information Act
Appendix VII: Comments from the
Appendix VII: Comments from the Department
of Labor
Department of Labor
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Appendix VII: Comments from the Department
of Labor
Page 80 GAO-22-105040 Freedom of Information Act
Appendix VIII: Comments from the
Appendix VIII: Comments from the
Environmental Protection Agency
Environmental Protection Agency
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Appendix VIII: Comments from the
Environmental Protection Agency
Page 82 GAO-22-105040 Freedom of Information Act
Appendix IX: Comments from the National
Appendix IX: Comments from the National
Archives and Records Administration
Archives and Records Administration
Page 83 GAO-22-105040 Freedom of Information Act
Appendix X: GAO Contact and Staff
Appendix X: GAO Contact and Staff
Acknowledgments
Acknowledgments
GAO Contact James R. McTigue, Jr. (202) 512-6806, mctiguej@gao.gov
Staff In addition to the contact named above, Shea Bader (Assistant Director),
Giny Cheong (Analyst-in-Charge), Michael Bechetti, Robert Gebhart,
Acknowledgments Amalia Konstas, Samantha Lalisan, Andrew Lobel, Meredith Moles,
Paras Sharma, Jessica Thomas, and Walter Vance made key
contributions to this report.
(105040)
Page 84 GAO-22-105040 Freedom of Information Act
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- gao-22-105040.pdf
- Size
- 6,717,818 bytes
- SHA-256
- ef4b82ed5ee2612f59629c169998b736582a28d4c1265d3a178a8661dd1d9165
- Our copy
- gao-22-105040.pdf
- Original
- www.gao.gov