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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Highlights

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.

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Recommendations

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.

Recommendations for Executive Action

Agency Affected Recommendation Status
American Battle Monuments Commission The Secretary of the American Battle Monuments Commission should designate a chief FOIA officer at the assistant secretary level or equivalent. (Recommendation 1)
Open
American Battle Monument Commission (ABMC) officials stated they are working to implement GAO's recommendations by the end of fiscal year 2021. As of September 2022 ABMC has not provided GAO with documentation of implementation.
American Battle Monuments Commission 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)
Closed – Implemented
The American Battle Monuments Commission agreed with our recommendation and have updated their regulations to describe dispute resolution services and notify requesters of the 90 days for appeals. In May 2020, the agency's regulations were published in the Federal Register.
U.S. Agency for Global Media 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)
Open
The U.S. Agency for Global Media (formally known as the Broadcasting Board of Governors) performed a comprehensive review of its FOIA regulations and updated its regulations in accordance with GAO's recommendation. The agency anticipates publishing proposed updates for notice and comment in spring 2020, followed by a final rule. As of September 2022, the agency's FOIA regulations had not been published on the Federal Register.
Department of Homeland Security 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)
Closed – Implemented
In December 2021, the Department of Homeland Security (DHS) provided its Backlog Reduction Plan for 2020 to 2023, dated March 2020. In the plan, DHS described its FOIA backlog reduction plan. The plan included best practices from Presidential Order 13392 for developing a FOIA backlog reduction plan. Specifically, DHS's plan described staffing and agency support for FOIA activities and specific activities that the agency plans to implement to eliminate or reduce FOIA backlog requests. By developing a FOIA reduction plan, DHS is continuing to ensure that reducing backlogs to a manageable level is a priority for the agency.
Department of the Interior The Secretary of DOI should ensure its FOIA tracking system is compliant with Section 508 requirements. (Recommendation 5)
Closed – Implemented
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. In April 2019, the Department of Interior remediated the remaining four requirements by providing updates to the source code.
Department of the Interior The Secretary of DOI should provide frequently requested records online. (Recommendation 6)
Closed – Implemented
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. In December 2019, the Department provided online all records that had been requested three or more times and frequently requested records.
Department of the Interior 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)
Closed – Implemented
In August 2022, the Department of Interior (DOI) provide its Order Number 3378 which described actions for improving the FOIA program. This included backlog reduction best practices as described in the Presidential order 13394 for developing a FOA backlog reduction plans. Specifically, DOI's order described staffing and departmental support for FOIA actives; and specific activities that the department plans to implement to reduce FOIA backlog requests. By developing a FOIA reduction plan, DOI is continuing to ensure that reducing backlogs to a manageable level is a priority for the agency.
Equal Employment Opportunity Commission The Chair of EEOC should designate a chief FOIA officer at the assistant secretary level or equivalent. (Recommendation 8)
Open
As of September 2022, GAO is awaiting EEOC's response to GAO recommendations.
Equal Employment Opportunity Commission 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)
Open
As of September 2022, GAO is awaiting EEOC's response to GAO recommendations.
Federal Trade Commission The Chairman of the FTC should designate a chief FOIA officer at the assistant secretary level or equivalent. (Recommendation 10)
Closed – Implemented
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.
Department of Justice 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)
Closed – Implemented
In the Department of Justice's (DOJ) Chief FOIA Office Report for fiscal year 2021, DOJ described their FOIA backlog reduction plan. The plan included best practices from Presidential Order 13392 for developing a FOIA backlog reduction plan. Specifically, DOJ's plan described staffing and agency support for FOIA activities; and specific activities that the agency plans to implement to eliminate or reduce FOIA backlog requests. By developing a FOIA reduction plan, DOJ is continuing to ensure that reducing backlogs to a manageable level is a priority for the agency.
Office of the Archivist 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)
Closed – Implemented
In July 2019, NARA, in response to our recommendation, issued their FOIA backlog reduction plan. The plan included best practices from Presidential Order 13392 and Department of Justice guidance for developing a FOIA backlog reduction plan. Specifically, NARA's plan described staffing and agency support for FOIA activities; and specific activities that the agency plans to implement to eliminate or reduce FOIA backlog requests. By developing a FOIA reduction plan, NARA is continuing to ensure that reducing backlogs to a manageable level is a priority for the agency.
National Aeronautics and Space Administration 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)
Closed – Implemented
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. In October 2019, NASA published comprehensive FOIA regulations that describe dispute resolution services, and notifies requesters of the 90 days for appeals.
National Aeronautics and Space Administration The Administrator of NASA should provide agency records of final opinions online. (Recommendation 14)
Closed – Implemented
In August 2018, NASA stated that it will identify subject matter areas in which the agency may reach final opinions. It also noted that upon identification, the agency will begin posting final opinions online, as required under FOIA. In August 2020, NASA officials stated that it has not identified any subject matter areas in which the agency may reach and post final opinions. It referred GAO to Public Law 111-314 that requires NASA to provide information received or developed by NASA to the public, including final opinions. NASA officials stated that given that they are required by law to post any final opinions, it will do so upon identification. As a result, GAO believes that this recommendation can be closed as implemented.
National Transportation Safety Board The Chairman of NTSB should provide frequently requested records online. (Recommendation 15)
Closed – Implemented
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. In December 2019, the NTSB provided online all frequently requested records.
National Transportation Safety Board 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)
Closed – Implemented
In July 2020, NTSB updated its FOIA backlog reduction plan. The plan included best practices from Presidential Order 13392 and Department of Justice guidance for developing a FOIA backlog reduction plan. Specifically, NTSB's plan described staffing and agency support for FOIA activities and specific activities that the agency plans to implement in order to eliminate or reduce FOIA backlog requests. By developing a FOIA reduction plan, NTSB is continuing to ensure that reducing backlogs to a manageable level is a priority for the agency.
Office of Management and Budget The Director of OMB should update and publish comprehensive FOIA regulations that include requirements established by law and Justice guidance. (Recommendation 17)
Closed – Implemented
In May 2019, OMB published comprehensive FOIA regulations that included requirements established by and Justice guidance.
Office of Management and Budget The Director of OMB should designate a chief FOIA officer at the assistant secretary level or equivalent. (Recommendation 18)
Closed – Implemented
In March 2018, the Office of Management and Budget (OMB), in response to our recommendation, provided evidence that its chief FOIA officer is at the assistant secretary level. Specifically, the OMB Director designated the OMB General Counsel to serve as the agency's chief FOIA officer. According to OMB, the chief FOIA officer reports to the Director. By appointing the chief FOIA officer at the appropriate level, OMB helps to ensure transparency and accountability in government operations.
Pension Benefit Guaranty Corporation The Director of Pension Benefit Guaranty Corporation should designate a chief FOIA officer at the assistant secretary level or equivalent. (Recommendation 19)
Closed – Implemented
In August 2021, the Pension Benefit Guaranty Corporation, in response to our recommendation, provided evidence that its chief FOIA officer is at the assistant secretary level. The corporation 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, this position is responsible for the General Law and Ethics Division which is the division charged with handling any appeals related work. By appointing the chief FOIA officer at the appropriate level, the Pension Benefit Guaranty Corporation helps to ensure transparency and accountability in government operations.
Department of State 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)
Closed – Implemented
The Department of State agreed with our recommendation and have updated the regulations to describe dispute resolution services and notify requesters of the 90 days for appeals. In March 2020, the agency's regulations were published in the Federal Register.
Department of State 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)
Closed – Implemented
In February 2020, the Department of State, in response to our recommendation, issued their FOIA backlog reduction plan. The plan included best practices from Presidential Order 13392 and Department of Justice guidance for developing a FOIA backlog reduction plan. Specifically, the department's plan described staffing and agency support for FOIA activities; and specific activities that the agency plans to implement to eliminate or reduce FOIA backlog requests. By developing a FOIA reduction plan, State is continuing to ensure that reducing backlogs to a manageable level is a priority for the agency.
Tennessee Valley Authority The President of TVA should ensure its FOIA tracking system is compliant with section 508 requirements. (Recommendation 22)
Closed – Implemented
In October 2020, TVA notified GAO it had replaced its FOIA tracking system with a commercial off the shelf product. Specifically, TVA noted the new electronic FOIA tracking system is Section 508 compliant and has interoperability with the National FOIA portal.
U.S. Agency for International Development 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)
Closed – Implemented
In January 2019, USAID, in response to our recommendation, issued their FOIA backlog reduction plan. The plan included best practices from Presidential Order 13392 and Department of Justice guidance for developing a FOIA backlog reduction plan. Specifically, USAID's plan described staffing and agency support for FOIA activities; and specific activities that the agency plans to implement to eliminate or reduce FOIA backlog requests. By developing a FOIA reduction plan, USAID is continuing to ensure that reducing backlogs to a manageable level is a priority for the agency.
African Development Foundation 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)
Open
U.S. African Development Foundation officials have stated that their FOIA regulations are currently under review and expect them to be published in the first half of calendar year 2020. However, as of September 2022, the regulations were not published in the Federal Register.

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