Freedom of Information Act:

Agencies Are Implementing Requirements but Additional Actions Are Needed

GAO-18-365: Published: Jun 25, 2018. Publicly Released: Jun 25, 2018.

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What GAO Found

All 18 selected agencies had implemented three of six Freedom of Information Act (FOIA) requirements reviewed. Specifically, all agencies had updated response letters to inform requesters of the right to seek assistance from FOIA public liaisons, implemented request tracking systems, and provided training to FOIA personnel. For the three additional requirements, 15 agencies had provided online access to government information, such as frequently requested records, 12 agencies had designated chief FOIA officers, and 12 agencies had published and updated their FOIA regulations on time to inform the public of their operations. Until these agencies address all of the requirements, they increase the risk that the public will lack information that ensures transparency and accountability in government operations.

The 18 selected agencies had backlogs of varying sizes, with 4 agencies having backlogs of 1,000 or more requests during fiscal years 2012 through 2016. These 4 agencies reported using best practices identified by the Department of Justice, such as routinely reviewing metrics, as well as other methods, to help reduce their backlogs. Nevertheless, these agencies' backlogs fluctuated over the 5-year period (see figure). The 4 agencies with the largest backlogs attributed challenges in reducing their backlogs to factors such as increases in the number and complexity of FOIA requests. However, these agencies lacked plans that described how they intend to implement best practices to reduce backlogs. Until agencies develop such plans, they will likely continue to struggle to reduce backlogs to a manageable level.

Number of Backlogged FOIA Requests for Selected Agencies, Fiscal Years 2012-2016

Number of Backlogged FOIA Requests for Selected Agencies, Fiscal Years 2012-2016

Agencies used various types of statutory exemptions to withhold information when processing FOIA requests during fiscal years 2010 to 2016. The majority of these fell into the following categories: personally identifiable information, national security, law enforcement and investigations, and confidential and commercial business information.

Why GAO Did This Study

FOIA requires federal agencies to provide the public with access to government records and information based on the principles of openness and accountability in government. Each year, individuals and entities file hundreds of thousands of FOIA requests. In the last 9 fiscal years, federal agencies subject to FOIA have received about 6 million requests.

GAO was asked to review federal agencies' compliance with FOIA requirements. Our objectives, among others, were to (1) determine the extent to which agencies have implemented selected FOIA requirements; (2) describe the methods established by agencies to reduce backlogged requests and the effectiveness of those methods; and (3) identify any statutory exemptions that have been used by agencies as the basis for withholding (redacting) information from requesters.

To do so, GAO selected 18 agencies based on their size and other factors and assessed their policies against six FOIA requirements. GAO also reviewed the agencies' backlog reduction plans and developed a catalog of statutes that agencies have used to withhold information.

What GAO Recommends

GAO is making recommendations to 16 agencies to post records online, designate chief FOIA officers, update regulations, and develop plans to reduce backlogs. Nine agencies agreed with the recommendations, 1 both agreed and disagreed, 2 disagreed, and 4 neither agreed nor disagreed. GAO continues to believe the recommendations are valid.

For more information, contact David A. Powner at (202) 512-9286 or pownerd@gao.gov.

Recommendations for Executive Action

  1. Status: Open

    Comments: We are currently awaiting the agency's 60 day letter response to GAO recommendations.

    Recommendation: The Secretary of the American Battle Monuments Commission should designate a chief FOIA officer at the assistant secretary level or equivalent. (Recommendation 1)

    Agency Affected: American Battle Monuments Commission

  2. Status: Open

    Comments: We are currently awaiting the agency's 60 day letter response to GAO recommendations.

    Recommendation: The Secretary of the American Battle Monuments Commission should update and publish comprehensive FOIA regulations that include requirements established by law and Justice guidance. (Recommendation 2)

    Agency Affected: American Battle Monuments Commission

  3. Status: Open

    Comments: In August 2018, the Broadcasting Board of Governors (BBG) performed a comprehensive review of its FOIA regulations and updated its regulations in accordance with GAO's recommendation. BBG noted it plans to finalize its FOIA regulations by the end of calendar year 2018.

    Recommendation: The Chief Executive Officer and Director of the Broadcasting Board of Governors should update and publish comprehensive FOIA regulations that include requirements established by law and Justice guidance. (Recommendation 3)

    Agency Affected: Broadcasting Board of Governors

  4. Status: Open

    Comments: We are currently awaiting the department's 60 day letter response to GAO recommendations.

    Recommendation: The Secretary of DHS should take steps to develop and document a plan that fully addresses best practices with regards to reduction of backlogged FOIA requests. (Recommendation 4)

    Agency Affected: Department of Homeland Security

  5. Status: Open

    Comments: In August 2018, the Department of Interior informed GAO that it had performed Section 508 compliance testing of its FOIA Tracking System. Results showed that the department's tracking system was in compliance with 23 out of the 27 applicable baseline requirements. The Department of Interior plans to remediate the remaining four requirements by the end of calendar year 2018.

    Recommendation: The Secretary of DOI should ensure its FOIA tracking system is compliant with Section 508 requirements. (Recommendation 5)

    Agency Affected: Department of the Interior

  6. Status: Open

    Comments: In August 2018, the Department of Interior informed GAO that its goal is to provide online all records requested three or more times and is working with its bureaus to ensure compliance.

    Recommendation: The Secretary of DOI should provide frequently requested records online. (Recommendation 6)

    Agency Affected: Department of the Interior

  7. Status: Open

    Comments: In August 2018, the Department of Interior informed GAO that the department has created a preliminary backlog reduction plan that includes expanding the use of automation tools, expanding the use of interim responses, and closing the Department's 10 oldest requests. GAO requested a copy of the Department's backlog reduction plan.

    Recommendation: The Secretary of DOI should take steps to develop and document a plan that fully addresses best practices with regards to reduction of backlogged FOIA requests. (Recommendation 7)

    Agency Affected: Department of the Interior

  8. Status: Open

    Comments: We are currently awaiting the agency's 60 day letter response to GAO recommendations..

    Recommendation: The Chair of EEOC should designate a chief FOIA officer at the assistant secretary level or equivalent. (Recommendation 8)

    Agency Affected: Equal Employment Opportunity Commission

  9. Status: Open

    Comments: We are currently awaiting the agency's 60 day letter response to GAO recommendations.

    Recommendation: The Chair of EEOC should take steps to develop and document a plan that fully addresses best practices with regards to reduction of backlogged FOIA requests. (Recommendation 9)

    Agency Affected: Equal Employment Opportunity Commission

  10. Status: Closed - Implemented

    Comments: In August 2018, FTC, in response to our recommendation, appointed its Deputy General Counsel as the chief FOIA officer. The commission noted that the Deputy General Counsel is comparable to a senior Level III position or higher and has the authority to make decisions about the agency's practices, personnel, and funding. In addition, the Deputy General Counsel has direct access to the Chairman and Commissioners of the FTC. By appointing the chief FOIA officer at the appropriate level, FTC helps to ensure transparency and accountability in government operations.

    Recommendation: The Chairman of the FTC should designate a chief FOIA officer at the assistant secretary level or equivalent. (Recommendation 10)

    Agency Affected: Federal Trade Commission

  11. Status: Open

    Comments: In August 2018, the Department of Justice acknowledged that it plans to reexamine its progress and take steps for continued improvement in reducing its backlog. The department however, did not provide a timeframe for when a backlog plan would be completed.

    Recommendation: The Attorney General of the United States should take steps to develop and document a plan that fully addresses best practices with regards to reduction of backlogged FOIA requests. (Recommendation 11)

    Agency Affected: Department of Justice

  12. Status: Open

    Comments: We are currently awaiting the agency's 60 day letter response to GAO recommendations.

    Recommendation: The Archivist of the United States should take steps to develop and document a plan that fully addresses best practices with regards to reduction of backlogged FOIA requests. (Recommendation 12)

    Agency Affected: National Archives and Records Administration: Office of the Archivist

  13. Status: Open

    Comments: In August 2018, NASA performed a comprehensive review of its FOIA regulations and updated its regulations in accordance with GAO's recommendation. In addition, NASA made additional updates to several sections to clarify the regulations. NASA noted that it plans to finalize its FOIA regulations in April 2019.

    Recommendation: The Administrator of NASA should update and publish comprehensive FOIA regulations that describe dispute resolution services, and notifies requesters of the 90 days for appeals. (Recommendation 13)

    Agency Affected: National Aeronautics and Space Administration

  14. Status: Open

    Comments: In August 2018, NASA agreed to provide agency records of final opinions online. NASA noted that final opinions will be provided online as they are issued and released for public posting. However, to date, the Department has not posted any final opinions.

    Recommendation: The Administrator of NASA should provide agency records of final opinions online. (Recommendation 14)

    Agency Affected: National Aeronautics and Space Administration

  15. Status: Open

    Comments: In August 2018, NTSB, in response to our recommendation, began posting more records online. Specifically, NTSB noted that it will be posting all FOIA requests with responsive documents in its public reading room. However, we are waiting for additional information to determine whether these are frequently requested records.

    Recommendation: The Chairman of NTSB should provide frequently requested records online. (Recommendation 15)

    Agency Affected: National Transportation Safety Board

  16. Status: Open

    Comments: In August 2018, NTSB provided a plan that laid out tasks for reducing its backlog. The plan did not, however provide milestones or dates for when these tasks would be completed.

    Recommendation: The Chairman of NTSB should take steps to develop and document a plan that fully addresses best practices with regards to reduction of backlogged FOIA requests. (Recommendation 16)

    Agency Affected: National Transportation Safety Board

  17. Status: Open

    Comments: We are currently awaiting the agency's 60 day letter response to GAO recommendations.

    Recommendation: The Director of OMB should update and publish comprehensive FOIA regulations that include requirements established by law and Justice guidance. (Recommendation 17)

    Agency Affected: Executive Office of the President: Office of Management and Budget

  18. Status: Open

    Comments: We are currently awaiting the agency's 60 day letter response to GAO recommendations.

    Recommendation: The Director of OMB should designate a chief FOIA officer at the assistant secretary level or equivalent. (Recommendation 18)

    Agency Affected: Executive Office of the President: Office of Management and Budget

  19. Status: Open

    Comments: We are currently awaiting the agency's 60 day letter response to GAO recommendations.

    Recommendation: The Director of Pension Benefit Guaranty Corporation should designate a chief FOIA officer at the assistant secretary level or equivalent. (Recommendation 19)

    Agency Affected: Pension Benefit Guaranty Corporation

  20. Status: Open

    Comments: We are currently awaiting the department's 60 day letter response to GAO recommendations.

    Recommendation: The Secretary of State should update and publish comprehensive FOIA regulations that describe dispute resolution services, and notifies requesters of the 90 days for appeals. (Recommendation 20)

    Agency Affected: Department of State

  21. Status: Open

    Comments: We are currently awaiting the department's 60 day letter response to GAO recommendations.

    Recommendation: The Secretary of State should take steps to develop and document a plan that fully addresses best practices with regards to reduction of backlogged FOIA requests. (Recommendation 21)

    Agency Affected: Department of State

  22. Status: Open

    Comments: We are currently awaiting the agency's 60 day letter response to GAO recommendations.

    Recommendation: The President of TVA should ensure its FOIA tracking system is compliant with section 508 requirements. (Recommendation 22)

    Agency Affected: Tennessee Valley Authority

  23. Status: Open

    Comments: We are currently awaiting the agency's 60 day letter response to GAO recommendations.

    Recommendation: The Administrator of USAID should take steps to develop and document a plan that fully addresses best practices with regards to reduction of backlogged FOIA requests. (Recommendation 23)

    Agency Affected: United States Agency for International Development

  24. Status: Open

    Comments: We are currently awaiting the agency's 60 day letter response to GAO recommendations.

    Recommendation: The President of the U.S. African Development Foundation should update and publish comprehensive FOIA regulations that inform a requester of limited unusual circumstances fees. (Recommendation 24)

    Agency Affected: African Development Foundation

 

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