Agency FOIA backlog growing despite open government

Thursday - 7/7/2011, 7:07am EDT

By Courtney Thompson
Federal News Radio

Many agencies are ignoring President Barack Obama's mandate to increase transparency of government information.

A recent survey by the National Security Archive (NSA) found that eight agencies had neglected Freedom of Information Act (FOIA) requests for more than a decade.

"This year's Knight Survey reveals a glass half full of open government, and some persisting deep problems including FOIA requests marooned for years in never-ending referrals among agencies," said Tom Blanton, director of the National Security Archive, in the report. Nate Jones, the Archive's FOIA coordinator and manager of survey requests, said that 17 agencies still were working on requests for more than 97 days over the required 20 business days to respond to a request.

NSA's "Ten Oldest FOIA Requests" list included the Army, Air Force, Central Intelligence Agency, Defense Intelligence Agency, departments of Energy and State, National Archives and Records Administration and National Security Agency, and revealed that some of the requests were for documents that were more than 50 years old.

The 2011 Knight Open Government Survey, which has been conducted twice during the Obama administration, highlighted a common issue where some agencies were not reporting older requests in their annual FOIA reports in the same way they reported other FOIAs to the Department of Justice.

"In the most egregious case, the Defense Intelligence Agency responded to our FOIA request with a document four years older than what it reported to the Department of Justice," NSA reported.

The survey also included some positive results on how agencies are meeting FOIA goals. The NSA found 49 out of 90 agencies took steps to improve openness to government information. This is up from the 2010 survey that reported only 13 agencies had complied with the administration's mandates.

"The Obama administration told us last year that one year was too short a time to show real change," Blanton said.

Additionally, the survey helped the NSA assess agencies' proficiency with FOIAs by submitting requests to agencies and seeing how long they took to fulfill.

"The requests we sent should have been easy to fulfill," the report stated. "They went to the very FOIA offices that were responsible for inspecting the oldest requests and including them in their federally mandated Annual FOIA reports."

But six months after the National Security Archive filed its requests, it said nine agencies still had not responded to requests including the Army, Central Intelligence Agency, departments of Energy, Health and Human Services, Justice, and State as well as the Drug Enforcement Administration, the Office of Personnel Management and the Transportation Security Administration.

The archive said due to the lack response by the agencies, it is filing appeals so that legal action can take place in the future.

The NSA said the referral process for information is the reason for the backlog.

"Each agency examined by the Knight Survey has a backlog older than two years," the NSA said. "Most are substantially older."

The archive added that 14 agencies were losing track of their backlogs and that the current oldest request now is older than it was a year ago.

Delays in requests occur because agencies such as NARA can store documents but cannot declassify them. The NSA said NARA refers the requests to the agency that owns or has access to the requested information. Another reason for the delay is some of the oldest requests also have been requested from at least one other agency.

As a result, the archive said the "daisy chain of referrals can often result in decades-long delay."

The National Declassification Center at NARA recently opened to help improve the process for requesting documents at the agency, but the National Security Archive said there is not much that the center can do for the referral process of documents at other agencies.

The survey offered two suggestions for agencies to meet FOIA objectives:

  • Changing agencies training and guidance materials to fit the President's reforms;
  • Forming individual "openness teams" to address reforms.

The highest-scoring agencies in 2011 were noted for their compliance in publishing materials online that previously had to be requested through FOIA. The departments of Defense, Treasury and Agriculture were among the agencies that fared best.

The agencies that showed the most progress in FOIA requests also tended to use a senior official in these openness teams comprised of FOIA, public relations and communications officials, as well as the legal counsel's office, the chief information officer, technology experts, senior fiscal and operational managers and the agency head or deputy.

"Only 24 out of 90 federal agencies this year could show concrete changes to their actual training materials on FOIA as a result of the new Obama policies, and unless bureaucracies make such tangible changes, the White House calls for openness will produce sound but not substance," NSA said.

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Courtney Thompson is an intern with Federal News Radio.

(Copyright 2011 by Federal News Radio. All Rights Reserved.)