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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.