Freedom of Information Act: Actions Needed to Improve Agency Compliance with Proactive Disclosure Requirements

GAO-21-254 Published: Mar 10, 2021. Publicly Released: Mar 17, 2021.
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Fast Facts

The Freedom of Information Act requires federal agencies to provide public access to certain records and information without waiting for specific requests.

Only 1 of 3 agencies we studied had policies in place to address and document compliance with these proactive disclosure requirements. None of the 3 fully complied with requirements to track and report the number of records disclosed each fiscal year.

We made several recommendations to multiple agencies. For example, the Department of Justice should follow up with agencies that report making zero disclosures to help encourage agencies to make proactive disclosures as required.

Federal agencies' Freedom of Information Act data, including the number of proactive disclosures, are posted to FOIA.gov.

Freedom of Information Act website

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Highlights

What GAO Found

The FOIA Improvement Act of 2016 expanded the requirement for agencies to proactively disclose certain records—making the records publicly available without waiting for specific requests. Of the three agencies GAO reviewed—Federal Aviation Administration (FAA), Department of Housing and Urban Development (HUD), and Veterans Health Administration (VHA)—only VHA aligned its policies and procedures with applicable Freedom of Information Act (FOIA) proactive disclosure requirements. Although FAA officials stated that the agency has processes to identify and post proactive disclosures, it has not documented these processes. HUD has FOIA regulations, updated in 2017, that address proactive disclosure, but its standard operating procedures have outdated sections that do not reflect statutory requirements.

GAO also found that HUD, VHA, and FAA did not fully comply with the statutory reporting requirements and Department of Justice's (DOJ) guidance to accurately report proactive disclosures. The FOIA Improvement Act of 2016 requires agencies to report the number of records the FOIA and program offices proactively disclosed each fiscal year. From fiscal years 2017 through 2019, HUD incorrectly reported zero proactive disclosures, while VHA and FAA did not track and report all required categories of proactive disclosures in fiscal year 2019 (see table).

Selected Agencies' Freedom of Information Act (FOIA) Offices' Reported Proactive Disclosures

Fiscal year

Federal Aviation Administration

Housing and Urban Development

Veterans Health Administration

2019

8

0

16

2018

89,687

0

0

2017

90,486

0

58

2016

68,046

12

0

Source: FOIA.gov. | GAO-21-254

DOJ's Office of Information Policy (OIP) is responsible for encouraging agencies' compliance with FOIA, including overseeing the Annual FOIA Report that agencies submit to OIP. OIP told GAO that it asked agencies that report zero proactive disclosures to confirm that this was accurate, but it did not follow up with these agencies. For example, OIP asked HUD officials to confirm that HUD intentionally reported zero proactive disclosures, but did not ask why HUD had zero proactive disclosures. In addition, GAO's review of annual FOIA data found that 25 of 118 agencies reported zero proactive disclosures in fiscal years 2018 and 2019. OIP said that agencies with a low volume of requests may have fewer records to proactively disclose. However, by not following up with agencies that report zero proactive disclosures, OIP is not using an available tool that may strengthen its efforts to encourage agencies to make required disclosures.

OIP and National Archives and Records Administration (NARA)'s Office of Government Information Services (OGIS) officials stated that making proactive disclosures accessible is a challenge for agencies. To assist agencies in addressing such challenges, OGIS periodically reviews agencies' compliance with FOIA and recently issued a report that included strategies for making proactive disclosures accessible.

Why GAO Did This Study

FOIA, enacted into law more than 50 years ago, requires federal agencies to provide the public with access to government records and information, including through proactive disclosures. FOIA proactive disclosures enhance transparency by ensuring that certain information about the operations and activities of the government is publicly available.

GAO was asked to review federal agencies' efforts to implement FOIA requirements regarding proactive disclosures. This report assesses the extent to which selected agencies (1) aligned their policies and procedures with FOIA requirements, and (2) tracked and reported these disclosures. GAO also assessed the effectiveness of the tools, resources, and oversight provided by DOJ and NARA to address known challenges to agencies' FOIA compliance.

GAO selected three agencies—FAA, HUD, and VHA—that reflect, among other things, a range in the agency-reported number of FOIA requests received and records proactively disclosed. GAO reviewed DOJ, NARA, FAA, HUD, and VHA documents and interviewed agency officials.

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Recommendations

GAO is making eight recommendations to FAA, HUD, VHA, and OIP. These include that OIP should follow up with agencies that report zero proactive disclosures. FAA, HUD, and OIP agreed with the recommendations and OIP said it has begun following up with agencies that report zero proactive disclosures. VA provided comments too late to be included in the report but agreed with the recommendation.

Recommendations for Executive Action

Agency Affected Recommendation Status
Federal Aviation Administration The FAA Administrator should document proactive disclosure requirements and procedures to clearly establish roles and responsibilities for complying with the FOIA statute and DOT regulations. (Recommendation 1)
Open
The Department of Transportation concurred with the recommendation and stated that the Federal Aviation Administration will develop guidance to document and implement a standard operating procedure that complies with requirements. We will continue to monitor FAA's progress and follow-up with them as necessary.
Department of Housing and Urban Development The HUD Chief FOIA Officer should update HUD proactive disclosure policies, such as its standard operating procedures, to document current requirements, roles, and responsibilities for complying with the FOIA statute and HUD regulations. (Recommendation 2)
Open
The Department of Housing and Urban Development (HUD) concurred with the recommendation and planned an agency-wide review to assess updates needed for its guidance. We will continue to monitor HUD's progress and follow-up with them as necessary.
Department of Housing and Urban Development The HUD Chief FOIA Officer should comply with proactive disclosure requirements, including identifying and electronically posting all records that have been released in response to a FOIA request and requested three or more times. (Recommendation 3)
Open
HUD concurred with the recommendation and planned for its headquarters office to work with field offices to develop a universal process for identifying and posting records. We will continue to monitor HUD's progress and follow-up with them as necessary.
Federal Aviation Administration The FAA Administrator should track the number of proactive disclosures for all required categories and report this information in DOT's Annual FOIA Report. (Recommendation 4)
Open
The Department of Transportation concurred with the recommendation. After the implementation of its other recommendation to develop guidance, FAA stated that it will implement an action plan for program offices by April 2022 and will be able to meet requirements by April 2023. We will continue to monitor FAA's progress and follow-up with them as necessary.
Department of Housing and Urban Development The HUD Chief FOIA Officer should track the number of proactive disclosures and report this information in its Annual FOIA Report. (Recommendation 5)
Open
HUD concurred with the recommendation and is working to incorporate the identification of recurring requests and other potential records for proactive disclosure in its tracking system. In fiscal year 2020, HUD reported 4 proactive disclosures in its FOIA Annual Report. We will continue to monitor HUD's progress and follow-up with them as necessary.
Veterans Health Administration The VA Under Secretary for Health should track the number of proactive disclosures for all required categories and report this information in VA's Annual FOIA Report. (Recommendation 6)
Open
As of August 2021, VHA has made progress on this recommendation by issuing finalized standard operating procedures that provided instructions for tracking proactively disclosed records including operational documents. Additional actions are needed because the standard operating procedures do not address how the agency is to track and report the number of proactive disclosures by program offices for all required categories, as required by FOIA. VHA stated that they will be asking program offices for this information. We will continue to monitor VHA's progress and follow-up with them as necessary.
Office of Information Policy The Director of the Office of Information Policy should encourage agencies that report zero proactive disclosures to proactively disclose as required by FOIA by, for example, including information on which agencies are reporting zero proactive disclosures in its summary of Annual FOIA Reports and following-up with these agencies. (Recommendation 7)
Closed - Implemented
In addition to confirming accuracy, the Office of Information Policy started requiring agencies that report zero proactive disclosures to provide an explanation. In the Summary of Annual FOIA Reports for Fiscal Year 2020, the Office of Information Policy reported 26 agencies that had zero proactive disclosures and provided examples of their reasons.
Office of Information Policy The Director of the Office of Information Policy should clarify how agencies should count proactive disclosures for the Annual FOIA Report by, for example, including this information in the Annual FOIA Report guidance or training. (Recommendation 8)
Closed - Implemented
OIP's update of the Department of Justice Handbook for Agency Annual Freedom of Information Act Reports (October 7, 2021) includes new guidance for how agencies should count proactive disclosures. OIP also stated that it covered this information in its Annual FOIA Report Refresher training.

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