With FOIA backlogs on the rise, do agencies need direct-hire authority?

With Freedom of Information Act backlogs continuing to rise, a federal advisory committee is advancing some potential solutions to the FOIA staffing challenges that have plagued many agencies.

The FOIA Advisory Committee, during a March 5 meeting, discussed a draft report on “staffing/personnel” from the resources subcommittee.

“The backlog of FOIA requests has been increasing year over year for quite some time, as the number of requests increase in the complexity of requests increases. And one of the things that we heard from many agencies was that they simply aren’t able to fill the FOIA positions that they have available to them,” Paul Chalmers, deputy general counsel at the Pension Benefit Guaranty Corporation and co-chairman of the resources subcommittee, said during the meeting.

A survey of FOIA professionals found more 53% considered staffing to be their greatest resource need, according to the draft report. Nearly 21% said “additional FOIA technology” was the greatest need, while 16% said training was the most pressing requirement.

FOIA offices face challenges in retaining staff, as many positions have career ladders that max out at the General Schedule-12 or GS-13 level, according to the draft report.

And agencies also struggle to fill open FOIA positions, as the hiring process for Government Information Specialist (GIS) positions is “slow and cumbersome,” the report states.

“A FOIA official at a cabinet agency stated that the agency had a ‘considerable number’ of FOIA positions it had not been able to fill,” the draft report continues. “That agency had put considerable effort into innovative ways to locate and recruit candidates from colleges, but the posting process simply took too long to reliably bring these candidates in.”

The draft report includes a recommendation that the Office of Personnel Management add the GIS job series to the direct hiring authority list. Adding the series to the direct hire list would allow agencies to circumvent the traditional competitive hiring process and hire more FOIA professionals more quickly, the report suggests.

“Delegating this authority to agency heads would allow those agencies experiencing hiring difficulties the flexibility to more quickly hire qualified candidates and begin attacking their FOIA backlogs” the draft report states.

The advisory committee, which reports to the National Archivist of the United States, will consider a final version of the staffing report during its April meeting.

FOIA backlogs rising

In fiscal 2023, for the first time ever, agencies received more than 1 million FOIA requests in a single year. The 1.19 million requests submitted last year is nearly 30% higher compared to fiscal 2022, according to data published to FOIA.gov. 

Agencies also processed a record 1.12 million requests in fiscal 2023, the Justice Department said in a release earlier this week.

Still, the total federal FOIA backlog has nearly tripled since 2012. The backlog at the end of fiscal 2023 stood at more than 206,000 cases.

The latest data also shows that despite the increase in requests, agencies lost FOIA staff last year. Data highlighted by technology firm Casepoint shows the number of full-time equivalent FOIA personnel decreased from 5,268 FTEs in fiscal 2022 to 4,943 in fiscal 2023. That bears out to one FOIA professional for 243 requests.

While DOJ has pushed agencies to embrace a “presumption of openness,” agency FOIA programs are typically under-resourced, leading to the backlogs and delays in processing public records requests.

“The government is continuing to get floods of requests coming in, and being able to support the process from the staffing perspective is a real challenge,” Amy Hilbert, Casepoint’s executive vice president for government solutions, said in an interview.

‘Pooled hiring’ also a potential solution

In addition to direct hiring authority, the FOIA Advisory Committee’s draft report also includes a recommendation for the Chief FOIA Officers Council to lead a “talent pool” effort for agency FOIA hiring.

Pooled hiring allows agencies to share lists of qualified candidates for the same position. OPM is pushing to expand the use of pooled hiring this year.

“Because pooled hiring will only work when a critical mass of agencies participate, the key will be to organize agency participation and monitor agency efforts to publicize the posting and hire eligible candidates,” the draft FOIA staffing report states. “The entity in the best position to do this for FOIA positions is the CFO Council. The council should also track the success of any pooled hiring effort in order to assess whether pooled hiring is effective at finding suitable FOIA staff and/or what improvements should be made.”

Another recommendation in the draft report is to have the General Services Administration create a labor category on the GSA schedule specifically for FOIA contractors “to facilitate efficient procurement if an agency determines it needs contractor support.”

Agencies that receive a large number of requests, such as the Department of Homeland Security, often rely on contract staff to help with processing. While agencies can find FOIA support services under the “Legal Support Solutions” within GSA’s schedule, but that category is “so broad that it sweeps in all sorts of products and services that do not relate to FOIA,” the draft report states.

The draft recommendation would see GSA separate out two specific labor categories: FOIA support services, and FOIA IT systems and software.

“Separating out these categories from other generic service categories would dramatically ease the burden for a FOIA official looking for an appropriate vendor,” the report states. “It would eliminate vendors whose services have nothing to do with the FOIA and make it easier to target the vendors with the most appropriate expertise and experience.”

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