Freedom of Information Act: Selected Agencies Adapted to the COVID-19 Pandemic but Face Ongoing Challenges and Backlogs

GAO-22-105040 Published: Jan 26, 2022. Publicly Released: Jan 26, 2022.
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Fast Facts

The Freedom of Information Act (FOIA) allows the public to request access to government information. During the pandemic, agencies received and processed fewer FOIA requests, but backlogs continued growing.

Several agencies we reviewed told us they encountered initial challenges once employees moved to full-time telework, because, for example, it was harder to get mailed requests or access paper records.

The agencies also said that lawsuits—which requesters may file if agencies don't meet FOIA response deadlines—were a growing challenge even before the pandemic.

Our recommendations could help the agencies address backlogs and other challenges.

FOIA Lawsuits Received in Federal District Courts, 2012 through 2020

bar chart showing a jump in requests in 2017, two more years of increases, then a slight dip in 2020 to under 800

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Highlights

What GAO Found

The COVID-19 pandemic affected some measures of Freedom of Information Act (FOIA) administration government-wide. For example, FOIA requests received declined government-wide by 8 percent in fiscal year 2020, the first year of the pandemic, compared to fiscal year 2019. Overall, agencies processed about 12 percent fewer requests during this same period. Other measures continued longer-term trends, such as increasing FOIA request backlogs.

FOIA Requests Received and Processed Government-wide, Fiscal Years 2012 through 2020

FOIA Requests Received and Processed Government-wide, Fiscal Years 2012 through 2020

Four of the five selected agencies—the Departments of Agriculture (USDA), Homeland Security (DHS), and Labor (DOL), and the Environmental Protection Agency—initially faced pandemic-related challenges such as access to 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 ensure workforce safety in the office.

All five agencies employed strategies and leading practices to maintain operations during the pandemic, including processing requests based on their complexity, increased communication with requesters, and interim releases. These agencies also continued long-term, non-pandemic related planning efforts, such as technology updates to FOIA systems and organizational changes.

Some of the agencies reviewed did not have key performance information in their backlog reduction plans. For example, USDA could better document planned 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 reduction efforts. GAO found opportunities for the Office of Information Policy (OIP) to collect and publicly report additional data, such as the causes of FOIA litigation, which could help agencies address emerging challenges.

Why GAO Did This Study

FOIA, enacted into law more than 50 years ago, seeks to improve the public's access to government information and promote the principles of openness and accountability in government.

The CARES Act includes a provision 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 officials from the selected agencies and the National Archives and Records Administration.

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Recommendations

GAO is making a total of four recommendations, with one each to DOL, DHS, USDA, and OIP. These include that OIP should evaluate the usefulness and burden of collected performance information, and identify ways reporting can inform current and emerging challenges. The agencies agreed with the recommendations.

Recommendations for Executive Action

Agency Affected Recommendation Status
Department of Labor 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)
Open
The Department of Labor agreed with this recommendation. Labor said it is taking several steps to address the recommendation, including establishing a formal FOIA backlog reduction plan and implementing additional quality controls on data input and reporting. As of September 2022, we continue to monitor Labor's progress.
Department of Homeland Security 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)
Open
DHS concurred with the recommendation. DHS stated that as of June 2022, the Deputy Chief FOIA Officer had briefed Component FOIA Officers on the findings of this GAO report, and instructed them to begin work on backlog reduction plans and obtain appropriate metrics for these plans. DHS estimated that most draft backlog reduction plans will be completed by the end of fiscal year 2022, and that finalized implementation plans will be completed by January 31, 2023. DHS told us by the end of July 2022, they will also transition to an upgraded processing system known as "SecureRelease" which could affect these dates. Further, DHS stated as of June 2022 they experienced a surge in FOIA requests received that may affect the Department's ability to maintain the backlog reduction achieved in FY 2021. As of September 2022, we continue to monitor DHS's progress.
Department of Agriculture 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)
Closed – Implemented
USDA stated that it concurred with our recommendation via email. In July 2022, USDA's Office of Information Affairs began requiring USDA components to submit quarterly reports containing data on the number of requests received during the quarter, the number of requests processed during the quarter, and the number of requests in a component's backlog at the end of the reporting period. In addition, components are to include their end-of-the-year backlog goals for initial requests. These steps will help USDA components establish milestones and more generally better document agency backlog efforts. USDA also identified a number of risks to its FOIA program, including vacancies and training gaps in key FOIA personnel positions and litigation. USDA documented planned actions to address these risks. By documenting this information, USDA can better ensure that the agency makes data-driven decisions for allocating resources and assessing progress toward backlog reduction efforts.
Office of Information Policy 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)
Closed – Implemented
The Office of Information Policy (OIP) agreed with the recommendation, stating OIP is always looking for ways to both reduce the burden on agencies and make sure that the metrics collected provide the most value for effective FOIA administration and public transparency. Further, as the Attorney General's new FOIA Guidelines issued on March 15, 2022 states, OIP plans to incorporate the recommendation when issuing new Chief FOIA Officer Report Guidelines for 2023. In September 2022, OIP issued Guidelines for 2023 Chief FOIA Officer Reports. The guidelines have been revised so that agencies that received more than 50 FOIA requests in fiscal year 2021 are to report the number of requests for which unusual circumstances apply, and the effect of litigation on overall FOIA administration. As a result, OIP is now positioned to better understand the impact of two of the most significant current and emerging FOIA challenges and risks we identified.

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