Agency Oversight

What to do about those ever-rising FOIA request backlogs

Freedom of Information Act (FOIA) requests keep rising every year. Some agencies have trouble responding to them on time, leading to growing backlogs.

Tom Temin@tteminWFED

March 27, 2024 2:09 pm

6 min read

Freedom of Information Act (FOIA) requests keep rising every year. Some agencies have trouble responding to them on time, leading to growing backlogs. The Government Accountability Office (GAO) found that the Justice Department bureau that oversees FOIA activity could improve its guidance on how to get out from under backlogs. For more, the Federal Drive with Tom Temin with GAO’s Director of Strategic Issues, Jay McTigue.

Interview Transcript:

Tom Temin Give us a sense of FOIA activity. Has it been on the rise? And tell us more about the level of backlogs some agencies, anyhow, are seeing?

Jay McTigue Sure. We looked back over the last decade looking at data from 2013 up through 2022, and we found that backlogs government wide have nearly doubled to a little bit over 200,000 at the end of fiscal year 2022. This reflects a long term trend, a persistent challenge for federal agencies.

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Tom Temin And simply the public wants this information.

Jay McTigue Absolutely. As you said, FOIA is our nation’s most important government transparency, it gives the American public the statutory right to request government records. All Americans have the right to know what their government is doing. So FOIA is central to government transparency.

Tom Temin And where do the backlogs tend to accumulate? These are not across the board evenly at all agencies, is it?

Jay McTigue No, that’s exactly right. So the Department of Homeland Security by far received the largest number of FOIA requests, accounting for about 60% of the government wide total in fiscal year 2022. The Department of Homeland Security, together with the Departments of Justice, Defense, State, and Health and Human Services, together accounted for about 80% of all new requests. And as you said, the backlogs vary across the government depending upon the agency. But overall, it’s a big and growing problem.

Tom Temin And by backlog, that means those cases that have not been answered after 20 days, I think is the statutory requirement.

Jay McTigue That’s right. FOIA generally requires agencies to respond to a request within 20 working days. And in their response, agencies should include a determination of the scope of the documents that they will provide and any exemptions that they claim, due to national security, personnel issues or other information that they cannot provide to the public. Sometimes, if there are unusual circumstances, an agency can extend that 20 day time frame for up to ten working days, and the agency must also offer a request or the opportunity to limit the scope of the request, or otherwise modify the request again, to try to be responsive to the request.

Tom Temin And there’s a few outlier cases sometimes that lay around for I think the longest I ever heard of was 10 or 15 years. Sometimes they end up at the bottom of a pile.

Jay McTigue Yeah, there are certainly cases like that. Most are not that bad. We didn’t look in great detail at specific requests during this audit. We were focused mainly on what agencies and what the Department of Justice is doing. First, to identify what the problems are with backlogs. What are the root causes, and then what are agencies and DOJ doing to try to address the growing backlog. It’s clearly a problem.

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Tom Temin We’re speaking with Jay McTigue. He is the director of strategic issues at the Government Accountability Office. And before we get to the root causes, tell us what justice, that particular unit of justice, what its job is in the whole FOIA area?

Jay McTigue The Department of Justice oversees compliance with FOIA. Its Office of Information Policy helps agencies administer for you by providing guidance, training and other resources to agencies. DOJ also oversees agency’s annual FOIA reporting requirements, which include plans for reducing backlogs, as well as information about the size of backlog and how long it takes to process requests. And then finally, I should mention that OIP also manages the FOIA.gov website, which makes the agency’s data available, the reports, and also provides information to the public about the FOIA process.

Tom Temin All right. And what did you find then, with respect to the responsiveness to doing this and their knowledge of the actual causes? I think it might be staffing, it could be funding that they get for FOIA. It could be the complexity of the cases. There’s a lot of variables.

Jay McTigue There are a lot of variables, a lot of factors that go into this. And so what we did is, I mentioned the annual chief FOIA officer reports that are on the FOIA.gov website. We looked at the last five years of those reports and teased out what the key issues were. We also had focus groups with the 24 CFO act agencies, to get a little bit more granular detail about what’s going on in the FOIA process. And so, yes, as you mentioned, staffing was one that came up quite often, as well as the increased scope and complexity of FOIA requests. And then other frequently cited issues included coordination across agencies, different offices and other units. For some of the very broad requests, litigation is something that has come up quite a bit lately. And then finally, technology. A lot of agencies are struggling acquiring technology to search records, but also technology has kind of made the retention and types of communication bigger and a little bit more challenging to deal with. Back in the day, when FOIA was enacted into law, a lot of information was on paper. Nowadays you have all kinds of electronic communication. You have emails, you have instant messaging, you have text messaging and so on and so forth. And that has generated just massive volumes of information that has to be searched. And it can take time, especially without the proper technology tools.

Tom Temin And you had a list of recommendations for the Justice Department and the Office of Information Policy. Highlight them for us.

Jay McTigue As I mentioned, backlogs have become a persistent and growing problem. The Department of Justice has taken steps to require certain agencies, those agencies with over a thousand backlog requests to develop, actionable plans to reduce the backlogs. But what we found is that OIP could improve the guidance to agencies in regard to these plans, because currently in its guidance, it doesn’t specify elements that should be included in these plans. And these are pretty basic elements. But really the cornerstone of effective plans such as goals, performance measures, timeframes for implementing specific actions and including that kind of information could really help make plans much more robust and actionable. We did look at the 14 agencies that were directed by OIP to come up with plans, and only two of those agencies included specific goals and only one included any kind of performance metric. And very few, actually, none included timelines for implementing the actions that they were going to take. So we had two recommendations to improve guidance on plans. And we also had two additional recommendations focused on the information that is reported to OIP on backlogs and the time it takes for agencies to respond to requests. And there was some confusion in how agencies calculated some of that information. And, you know, without good data, it’s hard to get a good handle on the issues. So OIP, the Department of Justice agreed with all four of our recommendations and has already started drafting new guidance to include the information that we suggested and clarify both the information and training on providing some of the data in the foyer reports that I mentioned.