The FOIA backlog continued to grow last year

The FOIA backlog has been on a steady rise since 2015.

The federal Freedom of Information Act request backlog continued to rise in fiscal 2021, but FOIA offices were able to make a dent in the backlog of administrative appeals last year.

The Justice Department’s Office of Information Policy (OIP) runs down the numbers in its analysis of agency chief FOIA officer fiscal 2021 reports.

Agencies received 838,164 FOIA requests in fiscal 2021, a 6% increase above the total received in fiscal 2020. And the FOIA backlog increased by just over 8% to a total of 153,227 requests by the end of fiscal 2021.

A request is considered backlogged when it has been pending at an agency longer than the statutory time to respond, which is typically 20 working days, but can be up to 30 working days in unusual circumstances.

DOJ’s 49,959 delayed requests made up 33% of the backlog alone. The Department of Homeland Security, which typically receives the most FOIA requests of any agency and was able to make a dent in its backlog last year, accounted for 16% of the backlog at the end of fiscal 2021, while the Defense Department represented 11% of the backlog.

The COVID-19 pandemic continued to have “varying impacts” on agencies’ FOIA administration in fiscal 2021, OIP wrote in the report. Earlier this year, the Government Accountability Office reported that while COVID-19 had some negative effects on FOIA administration, the backlog has been on a steady rise since fiscal 2015.

Meanwhile, the average processing time for simple track requests increased from an average of 30 to 32.9 days between fiscal 2020 and 2021 across agencies. DOJ defines simple requests as those that are “relatively simple to review” or involve a low volume of records.

But performance varied widely, with 67 agencies, including all of the Education and Treasury departments, respectively, reporting processing simple track requests within an average of 20 days or less, according to OIP’s report.

On the other hand, agencies improved their handling of “complex” requests in fiscal 2021. Agencies processed 55.3% of complex requests in 40 days or less, an improvement of 7% above fiscal 2020. Roughly four in five complex requests were processed in 100 days or less in fiscal 2021, according to OIP’s report.

Agencies processed 15,522 appeals during fiscal 2021, the most ever, according to OIP. FOIA requesters can file an administrative appeal when they disagree with an agency’s initial determination on a records request.

The backlog of administrative appeals dropped to 4,734 cases at the end of fiscal 2021, a decrease of 6.66% compared to fiscal 2020.

Overall, the cost of FOIA-related activities across government was $561.3 million in fiscal 2021, a slight decrease compared to fiscal 2020. FOIA litigation accounted for about $38.5 million of those costs.

Earlier this year, Attorney General Merrick Garland directed agencies to apply a “presumption of openness” when it comes to FOIA administration.

Meanwhile, lawmakers have asked GAO to conduct a government-wide, “comprehensive study of systemic issues” agencies face in fulfilling their FOIA obligations, including the cause of the backlog and potential regulatory or legislative changes needed to reduce it.


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