By Harry Hammitt
Hammitt’s article appeared in the latest issue of his journal on FOI lega developments in the U.S. and Canada, Access Reports.
The Justice Department’s Office of Information Policy published its summary of the 2011 Chief FOIA Officers Reports Aug. 7 and followed that up with its summary of the2011 Annual FOIA Reports on Sept. 6. Both reports present a rose-colored picture of FOIA government-wide that reflects a determined belief on the part of OIP that agency FOIA progress is always a glass half-full rather than half-empty.
According to OIP, agencies reported receiving 644,165 requests in FY 2011, an eight percent increase of over 46,000 requests from the 597,415 requests received in FY 2010, and nearly 40,000 more than the high water mark set in FY 2008.
The Department of Homeland Security received far more requests—175,656—than any other agency. The Defense Department was second with 74,117; the Department of Health and Human Services received 67,431 requests and the Justice Department received 63,103 requests.
In the summary of the Chief FOIA Officers Report, OIP noted that 74 of the 99 agencies subject to FOIA released records in full or part 90 percent of the time. As if that wasn’t astounding enough, 24 of those had a 100 percent disclosure rate. Since most agencies routinely withhold all or most personally identifying information, it is likely that the vast majority of these disclosures are partial grants.
Agencies processed 631,424 requests, an increase of five percent over the 600,849 requests processed the previous year.
The OIP summary of the annual reports noted that agencies receiving the most requests were also those processing the most requests. This included Homeland Security, which led with 145,631 requests processed. Defense processed 75,648 requests, Health and Human Services processed 70,179 requests and Justice processed 63,992 requests. With the exception of Homeland Security, which received an increase of 45,000 more FOIA requests than the previous year, these agencies processed more requests than they received. However, records were located and processed for only 69.5 percent of FOIA requests.
Agencies closed a rather large 30.5 percent for other reasons. The only reason OIP cites is when no responsive records are found, but agencies tend to invalidate a significant number of requests for rather minor administrative reasons.
Backlogs increased 20 percent, from 69,526 in FY 2010 to 83,490 in FY 2011. OIP pointed out that at 66 agencies the backlog either decreased or remained the same. The usual suspects – Homeland Security (42,417), the State Department (8,078) and the National Archives (8,011) accounted for more than 70 percent of the total backlog. However, State also reported a 61 percent reduction in its FY 2010 backlog, which consisted mostly of requests transferred to State from Homeland Security.
The use of some exemptions changed from FY 2010 to FY 2011. Not surprisingly, the use of Exemption 2 (internal practices and procedures) dropped significantly after the Supreme Court abolished the circumvention prong in Milner v. Dept of Navy. While the circumvention prong of Exemption 2 was one of the most commonly overused exemptions, according to OIP, agencies went from citing it 64,261 times in FY 2010 to a still rather large 24,440 times in FY 2011.
The exemption that has become the fall-back for the loss of the circumvention prong of Exemption 2 is Exemption 7(E) (investigatory methods and techniques). Exemption 7(E) emerged in FY 2011 as the third most frequently invoked exemption and was cited 56,491 times. But because 7(E) is restricted to law enforcement records, its coverage does not extend to agencies that have no law enforcement functions. OIP noted that Exemption 9 (information about wells) was cited only 26 times.
However, Exemption 7(B) (interference with fair trial), a very infrequently litigated exemption, was cited 357 times. Exemption 8 (bank examination records), an exemption that has seen more use in the wake of the financial collapse, was used only 462 times.
Exemption 6 (invasion of privacy) and Exemption 7(C) (invasion of privacy concerning law enforcement records) remained the most commonly cited exemptions. OIP reported that Exemption 6 was cited 115,140 times and Exemption 7(C) was cited 102,568 times. Even those numbers seem low since most agencies routinely withhold personally identifying information and the only basis for such claims is the two privacy exemptions. OIP touted the fact that Exemption 5 (privileges) had been used only 53,267 times in FY 2011, a 13 percent decrease from 64,668 times it was cited in FY 2010 to suggest that agencies were making more discretionary releases of records that qualified for various privileges.
OIP found the average processing time government-wide for simple requests was 23.65 days, down from the previous year’s 28.34 days. The Department of Veterans Affairs completed simple requests in 1.48 days and the Department of the Interior completed them in three days. At the other end of the spectrum, State reported it took 155 days for simple request. Since most requests sent by regular mail don’t get to the appropriate office for 2-3 days at best, the ability to complete requests more quickly seems almost too good to be true.
The average processing time for complex requests was 103.74 days, down from last year’s 118.07 days. Seven departments—Agriculture, Commerce, Homeland Security, Housing and Urban Development, Interior, Treasury and Transportation—reported average processing times between 27 and 80 days. Veterans Affairs had the lowest processing time for complex requests at 16.3 days while the Department Labor was the highest at 214.9 days. Nevertheless, these time frames seem quite good, but if expressed in terms of months, the seven departments ranged from one month to three months, which is probably pretty good.
In a blog post, Nate Jones, FOIA coordinator for the National Security Archive, complained OIP had practiced “grade inflation” in its passing grades for many agencies’ FOIA implementation. He pointed out the CIA had been congratulated for putting new materials on its website and noted that “the Agency has drawn the ire of intelligence historians for its extremely slow rate of posting documents on its website. At one point this year, the CIA did not release a single new document on its website for more than eight months.”
He also criticized the good grade awarded the State Department for its ability to receive email requests. He noted that “the Department will not provide documents in an electronic format, as required by the Freedom of Information Act. Neither will the CIA. I know that the DOD does; as such, claims that the classification system requires that FOIA documents only be printed appear specious.”
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