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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




         Page 74                                              GAO-22-105040 Freedom of Information Act
          Appendix V: Comments from the Department
          of Homeland Security




Page 75                                              GAO-22-105040 Freedom of Information Act
          Appendix V: Comments from the Department
          of Homeland Security




Page 76                                              GAO-22-105040 Freedom of Information Act
Appendix VI: Comments from the
             Appendix VI: Comments from the Department
             of Justice


Department of Justice




             Page 77                                     GAO-22-105040 Freedom of Information Act
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




         Page 79                                                GAO-22-105040 Freedom of Information Act
          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




         Page 81                                      GAO-22-105040 Freedom of Information Act
          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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