Unredacted, the National Security Archive’s blog, analyzed the latest annual agency FOIA report from the Department of Justice’s Office of Information Policy (OIP), and found that the report over calculated and misrepresented the government’s release rate of FOIA requests. The FY2019 summary report said that agencies had achieved a government-wide release rate of 94.4% (up from 93.8% last year), but the Natl Security Archive’s analysis and math — when taking into account things like counting nearly entirely redacted documents as successful partial releases, and excluding more than 270,700 requests denied (often improperly) over fees, referrals, “no records” responses, and requests “improper for other reasons” — showed that a more accurate release rate calculated by the Archive and others “hovers between 50 and 60 percent.”
That’s not good. OIP and agencies across the federal government MUST do better, must conduct more efficient searches, must find more ways to proactively post documents online etc. The 2018-2020 FOIA Advisory Committee to the National Archives (of which I’m a member) has some very good recommendations in their draft report for making FOIA better. This is the peoples’ information. While there are legitimate reasons for limiting access to *some* information (see the 9 FOIA exemptions), agencies have to stop using bureaucratic impediments to block, deter, and obfuscate the public’s right to know what their government is doing in their name.
The FY2019 summary report argues that agencies have achieved a government-wide release rate of 94.4% (up from 93.8% last year). OIP calculates that overly-generous figure by counting nearly entirely redacted documents as successful partial releases (see above for an example), and excluding more than 270,700 requests denied (often improperly) over fees, referrals, “no records” responses, and requests “improper for other reasons.” A more accurate release rate calculated by the Archive and others hovers between 50 and 60 percent.
Other highlights from the report include:
- The government received 858,952 FOIA requests in FY 2019, down slightly from FY2018’s all-time high of 863,729 requests.
- Exemption 7(c) and 7(e) account for more than 50% of all exemptions applied to denied records or portions of records.
- Backlogged requests have decreased from 130,718 in FY2018 to 120,436 in FY2019.
- As a reminder, in 2008 President Obama instructed every agency to reduce its FOIA backlog by ten percent every year. As my dear former colleague Nate Jones notes in his article, FOIA: A Colossus Under Assault, only one agency did this – the Department of Health and Human Services.
- Four agencies account for 65% of all referrals (and associated delays): DOD, DOJ, DHS, and CIA.
- The appeals backlog continues to grow – up to 5,087.
- Don’t let this deter you from appealing, though, as agencies release improperly withheld information on appeal at least a third of the time.
- Agencies reported collecting $2,547,638 in FOIA fees – totaling less than .5% of total FOIA costs. These fees are not recouped by the agency, but are instead deposited in the Treasury Department’s general fund, making it all the more frustrating to see agency’s use “fee bullying” techniques to intimidate requesters into dropping or unnecessarily narrowing their requests.
- Agencies spent nearly $38,842,948 in FOIA litigation. Put another way, agencies lost 15x as much money fighting bad FOIA decisions in court as they collected in FOIA fees.
The Treasury Inspector General recently released an audit that the IRS isn’t doing an adequate job of making sure that the highest earners are paying their fair share.
Surveys consistently report that most citizens believe that everyone should pay their fair share of taxes. Party affiliation doesn’t affect their opinion.
“Only 6% of Americans think it is morally acceptable for people not to report all their income on their taxes, according to a January 2013 Pew Research survey. The vast majority of the public (71%) says this practice is morally wrong, while 19% think failure to report income isn’t a moral issue. Few of any partisan persuasion think that not reporting their full income is morally acceptable: Republicans (5%), Democrats (7%) and independents (5%) are about as likely to say this. However, Republicans are more likely than Democrats to call this morally wrong (78% vs. 68%), while Democrats are more likely to frame it as “not a moral issue” (21% vs. 15%).”
IMPACT ON TAXPAYERS
The gross Tax Gap is the estimated difference between the amount of tax that taxpayers should pay and the amount paid voluntarily and on time. The average annual gross Tax Gap is estimated to be $441 billion for Tax Years 2011 through 2013, and approximately $39 billion (9 percent) is due to nonfilers, taxpayers who do not timely file a required tax return and timely pay the tax due for such delinquent returns. According to the IRS, high-income nonfilers, although fewer in number, contribute to the majority of the nonfiler Tax Gap.
WHY TIGTA DID THE AUDIT
In past audits, TIGTA identified serious lapses with the IRS’s nonfiler strategy. This audit was initiated to determine whether the IRS is effectively addressing high-income nonfilers and if the new nonfiler strategy and related plans sufficiently include this segment of nonfilers.
WHAT TIGTA FOUND
The IRS is still in the process of conducting testing; however, the new nonfiler strategy appears to approach nonfiling in a more strategic manner. However, the strategy has not yet been implemented, and TIGTA identified that the new nonfiler program is spread across multiple functions with no one area being primarily responsible for oversight. In addition, more needs to be done to address high-income nonfilers. TIGTA analyzed the Individual Master File Case Creation Nonfiler Identification Process inventory for Tax Years 2014 through 2016 and identified 879,415 high-income nonfilers that did not have a satisfied filing requirement, with an estimated tax due of $45.7 billion. Of the 879,415 high-income nonfilers, TIGTA identified:
. The IRS did not work 369,180 high-income nonfilers, with estimated tax due of $20.8 billion. Of the 369,180 high-income nonfilers, 326,579 were not placed in inventory to be selected for work and 42,601 were closed out of the inventory without ever being worked. In addition, the remaining 510,235 high-income nonfilers, totaling estimated tax due of $24.9 billion, are sitting in one of the Collection function’s inventory streams and will likely not be pursued as resources decline.
. The IRS removed high-income nonfiler cases from inventory, resulting in 37,217 cases totaling $3.2 billion in estimated tax dollars that will not likely be worked by the IRS.
In addition, due to the policy on working single tax year cases without regard to how many returns have not been filed by a taxpayer, the IRS is missing out on opportunities to bring repeat high-income nonfilers back into compliance. TIGTA also identified the top 100 high-income nonfilers for Tax Years 2014 through 2016 that the IRS did not address or resolve, who had estimated tax due totaling $9.9 billion.
CDC Activities and Initiatives Supporting the COVID-19 Response and the President’s Plan for Opening America U p Again
Journalists reported in May that CDC had created a 60 page + document on reopening for public distribution but that some administration appointees had blocked its release and issued instead a 17 page document of information they already published. A librarian searched CDC’s website and couldn’t find and therefore initiated a FOIA request.
The 17 page version the administration released is available at Stanford’s Institutional Repository.
Recently, the CDC/ATSDR FOIA Officer notified the librarian making a FOIA request that CDC had indeed made the document available at their website and therefore their request was unnecessary.
GPO will make available through the Federal Library Depository Program.
co-published on govdoc-l and freegovinfo.info.
The Government Printing Office (GPO) cataloged the Department of Justice’s (DOJ) Freedom of Information Case list. https://www.justice.gov/oip/court-decisions-overview
One can find additional DOJ FOIA information on the website.
“The experimental Small Business Pulse Survey (Business Pulse) measures the changes in business conditions on our nation’s small businesses during the coronavirus (COVID-19) pandemic.”
GPO will catalog/archive.
co-published on govdoc-l and freegovinfo.info.