The Electronic
Freedom of Information Act Amendments of 1996 (E-FOIA), Pub. L. No. 104-231,
greatly revised the requirements for the annual reports of Freedom of Information
Act activity that all federal departments and agencies must prepare. The relevant
provisions, codified in subsection (e) of the Act, 5 U.S.C. § 552(e)
(2000), modified the content, timetable, and submission procedures for these
agency reports -- which are now prepared on a fiscal-year basis and are made
available to the public both through individual agency FOIA Web sites and (on
a centralized basis) through the Department of Justice's FOIA Web site. See
5 U.S.C. § 552(e)(1)-(5). These provisions took effect as of Fiscal
Year 1998.
In accordance with
new subsection (e)(4) of the FOIA, 5 U.S.C. § 552(e)(4), the Department
of Justice in 1997 issued formal "Guidelines for Agency Preparation and Submission
of Annual FOIA Reports," which among other things established an annual report
template for uniform agency reporting purposes. See FOIA
Update, Vol. XVIII, No. 3, at 3-7. Additional annual FOIA report guidance
on the use of "working days" for statistical purposes, the categorization
of unperfected FOIA requests, and the logistics of the annual report submission
process was issued in 1998. See FOIA
Update, Vol. XIX, No. 3, at 2; see also id. at 4 (advising
on details of proper electronic availability of annual FOIA reports through
individual agency Web sites).
During 2000-2001,
the General Accounting Office (GAO), acting at the request of both Houses of
Congress in the wake of an E-FOIA implementation oversight hearing that was
held in June of 2000, conducted a detailed study of agency E-FOIA implementation
activities. See FOIA Post, "Agencies
Continue E-FOIA Implementation" (posted 3/14/01). For purposes of this study,
GAO examined agencies' annual FOIA reports for fiscal year 1999, the second
year for which these reports were prepared in revised form. GAO's report of
this study, entitled "Progress
in Implementing the 1996 Electronic Freedom of Information Act Amendments"
(Mar. 16, 2001), found certain "reporting inconsistencies and data quality problems"
with some of the annual reports that it examined. Id. at 32; see
also id. at 33-34. GAO therefore recommended that the Department
of Justice issue supplemental annual FOIA report guidance addressing the points
of concern that GAO identified in its report. See id. at 41; accord
5 U.S.C. § 552(e)(4) (specifying that Department of Justice "may
establish additional requirements for [annual FOIA] reports as . . . may be
useful"). Additional such points of concern have been identified through the
Department of Justice's own reviews.
Accordingly, the
Department of Justice has prepared the following supplemental guidance on a
variety of points for use by all federal agencies in the preparation and submission
of their annual FOIA reports as of this year. Additionally, through the Office
of Information and Privacy, the Department of Justice has been examining with
increasing scrutiny the contents of all agencies' annual reports as they are
submitted to it for centralized access on its FOIA Web site and has been contacting
agencies to discuss and resolve any question or discrepancy identified. See
FOIA Post, "GAO E-FOIA Implementation
Report Issued" (posted 3/23/01). This process of review will continue within
an even broader framework of scrutiny in accordance with the points of supplemental
guidance that are set forth below.
Guidance Points
First, all
agencies should be mindful that when it revised the FOIA's annual reporting
requirements, Congress expressed the expectation that the new form of annual
FOIA reports would permit someone to compare an agency's FOIA performance from
one fiscal year to the next and also to compare one agency to another. See
H.R.
Rep. No. 104-795, at 27-29 (1996) (House report detailing intended implementation
of annual report provisions). To this end, Congress sought the development and
proliferation of a standard format that could be used by all agencies for their
annual FOIA reports. See id. at 29 (specifying that all agencies
should "follow a similar format"). It is just such a standard format that was
developed in 1997, in template form, for use by all agencies. (This report template
can be found in electronic form at
www.usdoj.gov/oip/foia_updates/Vol_XVIII_3/page2.htm.) To ensure the intended
uniformity, all federal agencies, both large and small, should use this standard
format.
Further,
all agencies should use the entire standardized form, rather than create an
abbreviated version of it. This applies most particularly to smaller agencies,
which tend to receive relatively few access requests or access requests for
records of only a particular type. All agencies should simply enter "0" or "n/a"
as applicable in any field for which they have no data to report, regardless
of how many such fields there might be. This can be especially significant,
for instance, with respect to the specification of exemptions. For example,
some agencies might be inclined to omit an entry for "Exemption 1" in their
reports because they rarely if ever have any occasion to deal with classified
information. To an annual report reader who lacks this knowledge of the workings
of such an agency, however, this might not be so clear. An affirmative indication
by such an agency that it used Exemption 1 "0" times is a much clearer expression
of its FOIA activity in that regard.
Similarly,
in making entries in the standard report format, agencies must be careful not
to count an access request in a way that defeats the purpose of the tabulation
that is being made. When an agency completes work on a request, it is counted
as one "processed" or "disposed of" request. If such a request was partially
granted and partially denied under Exemptions 2, 5, and 7(C), and also included
some responsive records referred to another agency, for example, it still should
be counted as a single request. On the annual report form, this request should
be counted just once as a "partially granted" request (note that the phrases
"partially granted" and "partially denied" effectively mean the same thing).
Such a request should not also be counted under "referrals," or under "other
reasons for nondisclosure," because each request should be represented just
once in the mutually exclusive "total grants," "partial grants," "denials,"
and "other reasons for nondisclosure" categories of Section V of an agency's
report. It is the predominant basis for a request's disposition that counts.
And the total of the numbers in these four categories always should equal the
total number of requests processed.
By contrast, however,
such a request certainly should be counted multiple times in the tabulation
of "exemptions used" that is made in Part B of Section V of the report. It would
be counted once for Exemption 2, once for Exemption 5, and once for Exemption
7(C). Note that even if, for example, Exemption 5 were used multiple times for
this one FOIA request, it still would be counted just once under Exemption 5.
See FOIA Update,
Vol. XVIII, No. 3, at 5 (annual report guidelines specifying that exemption
entries should be made by "counting each exemption once per request"). Note
also that because in this example an agency will have tallied three exemptions
for one access request, the total number of times that all exemptions and other
nondisclosure grounds were used will not be a meaningful number if compared
to the number of requests processed during the fiscal year. This is because
this tabulation is not intended to be used in that way. Rather, this portion
of the report presents a picture of an agency's use of different FOIA exemptions
and other nondisclosure grounds overall.
Of course,
the points in the above two paragraphs should not be confused with the process
by which large agencies with decentralized FOIA operations take certain incoming
access requests (i.e., ones made to a central agency location, rather than directly
to designated agency components) and distribute those requests to appropriate
agency components or subagencies for decentralized handling and independent
disposition. See, e.g., 28
C.F.R. § 16.3(a) (2001) (describing decentralized system for
handling FOIA requests within Department of Justice); see H.R.
Rep. No. 104-795, at 29 (1996) (House report recognizing, for annual reporting
purposes, that "some agencies [have] decentralized FOIA operations"); see
also FOIA Update,
Vol. XVIII, No. 1, at 6 (advising on use of different multitrack processing
systems by different components of "decentralized" agencies); cf. FOIA
Update, Vol. XVIII, No. 1, at 4 (describing effect of decentralization
on compliance with agency "electronic reading room" responsibilities).
In such cases,
a single incoming request can necessarily become multiple individual requests
that are disposed of, and accordingly counted by, each individual agency component
separately. To present their annual report data most effectively, such decentralized
agencies should include individual component "breakdowns" of their data, which
are best presented in chart form. See, e.g., Department of Justice
Fiscal Year 2000 Annual FOIA Report (containing, for example, "Initial Requests"
chart found at www.usdoj.gov/oip/annual_report/2000/00foiapg5.htm).
In turn,
the point in the above paragraph should not be confused with the appropriate
agency practice of treating access requests that deal with multiple subjects
(e.g., multiple third-party files) as separate requests when necessary for their
most expeditious handling. Agencies do so as a matter of longstanding practice,
one that enhances administrative efficiency and routinely results in requesters
obtaining disclosable records more promptly than otherwise would be the case.
When requests are divided in this way, they become separate requests that of
course are individually tabulated for annual reporting purposes.
When counting
the number of access requests that have been "received," agencies sometimes
question the difference between a general request for information that somehow
comes into an agency and a request that on its face is a request for access
to records under the FOIA and/or the Privacy Act. This question most typically
arises when individuals seek access to their medical or other first-party records
(including where the individual is an agency employee or custodial detainee),
but it also can arise when an agency receives a request for information other
than through regular FOIA channels that is nevertheless routed to the agency's
FOIA office for appropriate handling. Or it can arise when it is found that
a certain type of information request can be best handled through some agency
process other than the formal FOIA one. See, e.g., FOIA
Update, Vol. XVI, No. 1, at 1-2 (promoting use of "alternative disclosure
mechanisms" such as coordination with agency public affairs offices to satisfy
information requests "without any need for them to ever become FOIA requests").
Simply put, a request
should be considered a FOIA/PA request for annual reporting purposes (to be
referred to simply as a "request" for all further purposes) if an agency FOIA
officer determines that the request should be treated as a FOIA/PA
request. This means, among other things, that the request will be logged in
and assigned a FOIA/PA control number, that the requester will be entitled to
a response within twenty working days, and that the requester will have appeal
rights and the right to judicial review of any adverse determination made regarding
any responsive information. Such requests, and only such requests, should be
counted for purposes of annual FOIA reports, regardless of which access statute,
if any, is cited. See, e.g., FOIA
Update, Vol. VII, No. 1, at 6 (advising that it is "good policy for
agencies to treat all first-party access requests as FOIA requests (as well
as possibly Privacy Act requests), regardless of whether the FOIA is cited in
a requester's letter").
Agencies
generally should devote more attention to Section IV of the annual report format,
entitled "Exemption 3 Statutes." This report section is designed to meet each
agency's special statutory obligation to provide additional information on its
use of this particular FOIA exemption, which incorporates the nondisclosure
provisions that are found in other statutes. See 5 U.S.C. § 552(e)(1)(B)(ii).
In most instances, the clearest way to present this data is in chart form. An
example can be found in the Department of Justice's annual FOIA report for fiscal
year 2000 (www.usdoj.gov/oip/annual_report/2000/00foiapg4.htm).
The first column in this chart lists all of the Exemption 3 statutes used during
the fiscal year, in numerical order; the second is a brief description of the
type of information withheld; and the third indicates whether a court has upheld
the use of the statute, including a citation to a relevant court decision if
the statute has been so upheld.
On this latter
point, any agency that is uncertain as to whether a court has upheld the use
of an Exemption 3 statute that the agency lists should make use of the Department
of Justice's Freedom of Information Case List for this purpose. In
Section IV of the Case List's Topical Index, entitled "Other U.S. Code
Sections," which begins on page 514 of the most recent edition of that reference
volume (found at www.usdoj.gov/04foia/index.html),
agencies can find a comprehensive list of all sections and subsections of the
United States Code that have been cited in FOIA cases, together with a cross-reference
to each case involved. This resource tool contains references to many statutes
(and supporting cases) that have been listed without support in recent annual
reports. Agencies should take greater care not to report that the Exemption
3 statutes used by them have never been upheld in a court case when in fact
they have been upheld. They also should remember that there is no requirement
that the court decision be one in which the particular agency filing the annual
report was involved; all that matters is that the particular Exemption 3 statute
was involved.
In completing
Part A of Section V of the annual report form, entitled "Numbers of Initial
Requests," agencies should be mindful that the total of Lines 1 and 2, minus
the number in Line 3, should equal the number in Line 4. This means that the
number of requests pending at the beginning of the fiscal year, plus the number
of requests received during the fiscal year, minus the number of requests processed
during the fiscal year, should equal the number of requests pending as of the
end of the fiscal year. Further, this latter figure should be the same as the
one entered on Line 1 of Section VII, Part B, and it also should become the
number of requests listed as "pending" as of the beginning of the next fiscal
year for purposes of the agency's next annual FOIA report.
As for the number
in Line 3, agencies should bear in mind that it comes into play in two other
places in each annual report. This figure represents the number of requests
processed during the fiscal year. As such, it also should equal the total of
Lines 1, 2, 3, and 4 of Part B of Section V (entitled "Disposition of Initial
Requests"). (Note that it is essential to enter a total number in Line 4 of
Section V, Part B, as well as in Line 4 of Section VI, Part B, in order for
the report to be properly completed.) In other words, this is the number of
requests that were processed during the fiscal year, all of which were either
granted in full, granted in part, denied in full, or else subject to some "other"
(specified) reason for nondisclosure. The number in Line 3 also should match
the total of the numbers that appear in Part A of Section VII of the report,
under the heading "Median Processing Time." There, too, the number of requests
processed must equal the sum of the numbers of requests processed in the simple,
complex, and expedited tracks (even if one or more of those numbers is zero).
In Section
VII, Part A, which deals with median processing times, the annual report format
necessarily divides all requests processed into simple requests, complex requests,
and requests that are accorded expedited processing. (Note that it is essential
that this part of the report address all of the requests that were processed
by the agency during the fiscal year, i.e., the total number of requests specified
in Line 3 of Section V, Part A, of the report.) If an agency does not use multitrack
processing, of course, it will report numbers for only one basic track. All
agencies, however, must report the number of requests that were accorded expedited
processing. Even when that number is zero, this information is important to
report, as it contributes to the aggregate picture of this FOIA activity governmentwide.
In this connection, agencies should to the extent practicable also report the
number of requests for expedited processing that are received each year, in
relation to the number granted. To do so will give a clearer picture of activity
under this provision of the Act; these numbers can be specified in Section VIII,
Part D, of the standard report format.
For Parts
A and B of Section VII of the report, several of the entries are expressed in
numbers of "days." Because most electronic tracking systems that are currently
in use throughout the federal government now have the capability of compiling
data in "working days," it is assumed that these reported numbers ordinarily
will be "working days," as opposed to "calendar days." See FOIA
Update, Vol. XIX, No. 3, at 2 (advising that using "working days" is
preferable for this purpose, except where an agency cannot readily do so). If
an agency does report in terms of calendar days, it should take pains to make
it clear that it is doing so. This can be done by specifying "calendar days"
after each such entry and also by adding a definition of "days" as "calendar
days" to the "Definitions" section of the report.
In completing
Part A of Section IX of the report, regarding staffing levels related to FOIA/PA
matters, agencies should be careful to pay full attention to Line 2 as well
as Line 1. Line 1 simply asks for the number of full-time personnel who are
involved in FOIA/PA matters full time. Line 2 asks for the number of agency
personnel who have only part-time or occasional FOIA duties (even if merely
sporadic), expressed in total numbers of work-years. For example, if a particular
agency had four employees working full-time on FOIA matters and three employees
with part-time FOIA responsibilities, it would simply specify "4" on Line 1.
To complete Line
2, however, that agency would have to determine, and then total, the individual
work-year percentages for the three employees working on FOIA matters only part
time. If the first employee devoted an estimated 10% of his time to the FOIA,
the second employee 30% of her time, and the third employee 15% of her time,
then that would total 55% of a work-year. So for Line 2, that agency would enter
".55 work-years." The agency's entry for Line 3 would be "4.55 work-years."
All agencies should arrive at a figure for Line 3 by adding the number in Line
1 to the number (which could be zero) in Line 2.
In filling
out Part B of Section IX of the report, agencies are asked to provide three
figures, based upon their best ability to calculate the costs of their FOIA
activities. Line 1 seeks the total costs of FOIA-processing activities, including
appeals. In completing it, agencies are asked to include the costs of their
staffs "and all resources" that are devoted to these activities. FOIA
Update, Vol. XVIII, No. 3, at 7. To arrive at a comprehensive figure
for this, of course, agencies must do their best to estimate the costs of these
resources -- which may include such items as photocopying, postage, data-processing
services, and other items of overhead that are reasonably allocable to an agency's
FOIA operations.
For Line 2 of Part
B, agencies are likewise asked to provide estimates of the costs of
their litigation-related FOIA activities. Id.; accord H.R.
Rep. No. 104-795, at 29 (1996) (House report recognizing that in annual
FOIA reports "reasonable estimates" sometimes must be used). Such estimates
should take into account the full range of agency efforts that are undertaken
in support of a FOIA litigation case, including attorney coordination with declarants,
additional subject-matter experts, and other agency program personnel. Any reasonable
estimate of such costs should serve the report's purpose of "permitting meaningful
comparisons among agencies" in this regard. Id. at 28. Again, it is
only by making its best estimates in both of these Part B categories that an
agency can comply with its express statutory obligation to report "the total
amount expended by the agency for processing [its] requests." 5 U.S.C. §
552(e)(1)(G).
Although
it is required that each annual FOIA report contain a copy of the agency's current
FOIA regulations, see FOIA
Update, Vol. XVIII, No. 3, at 7, agencies need not include paper copies
of their FOIA regulations when they submit their annual reports to the Department
of Justice. Rather, it is sufficient for an agency to provide the Department
of Justice with the annual report's electronic address, or "URL," by specifying
it as required in Section I of the report -- so long as the electronic version
of the agency's annual report contains (in Section XI) an electronic link to
its regulations. However, whenever a paper copy of an agency's annual FOIA report
is provided to any other recipient, a paper copy of the regulations should be
included there as well.
Lastly,
many agencies need to pay better attention to their obligation to complete their
annual FOIA reports in a timely fashion each year. See 5 U.S.C. §
552(e)(1) (establishing February 1 deadline for each agency's completion
of its report for preceding fiscal year); see also 5 U.S.C. §
552(e)(2)-(3) (establishing responsibility of each individual agency
to make its annual FOIA report available to public electronically, and responsibility
of Department of Justice to make all such reports available at single electronic
access site by April 1 each year). These statutory deadlines should be universally
respected. See H.R.
Rep. No. 104-795, at 28 (1996) (noting that in amending FOIA's annual reporting
provisions, Congress actually gave agencies "more time to prepare the reports"
than under prior calendar-year schedule).
Additionally, the
Office of Information and Privacy has been preparing aggregate compilations
of agency statistics from all agencies' annual FOIA reports as of fiscal year
1999, but this process has been greatly delayed by the belated submission of
many agency reports for both fiscal years 1999 and 2000. While agency compliance
has greatly improved at OIP's urging, and has continued to improve most recently
for Fiscal Year 2000, there still remains a need for further improvement overall.
As part of its review of all agencies' annual FOIA reports, and its plans to
prepare new governmentwide compilations regularly, OIP will be redoubling its
efforts to encourage all agencies to comply with this obligation on time. All
agencies, in turn, should be sure to take the administrative steps necessary
to do so.
Once an annual
FOIA report has been completed, the agency must either mail or fax a copy of
it to the Department of Justice. See 5 U.S.C. § 552(e)(1)
(requiring submission to Department of Justice, not Congress as in past). If
an agency mails its annual report, it should send it to the following address:
Office of Information and Privacy, United States Department of Justice, Flag
Bldg., Suite 570, Washington, D.C. 20530. Alternatively, annual reports may
be faxed to the attention of Pamela Maida of OIP, at (202) 514-1009. (It is
not necessary for an agency to send its report to the Office of the Attorney
General, or even to "cc" the Office of the Attorney General, because that office
is not the appropriate recipient of such reports within the Department of Justice.)
As noted above, the report's URL will be specified within the report itself,
but agencies always should be sure to notify OIP if for any reason a relevant
URL changes. See FOIA
Update, Vol. XIX, No. 3, at 2 (specifically requesting such notification).
In addition to
sending their annual FOIA reports to the Department of Justice, all agencies
must make them available to the public electronically, through their own FOIA
Web sites. See 5 U.S.C. § 552(e)(2); see also
FOIA Update, Vol.
XVIII, No. 3, at 7. Now, with annual FOIA reports prepared and made available
in this way for multiple fiscal years, it is particularly important that each
report on a FOIA Web site be clearly labeled to indicate the year for which
it was prepared. See FOIA
Update, Vol. XIX, No. 3, at 4 (suggesting that agencies also include
annual reports for some years prior to Fiscal Year 1998, i.e., reports prepared
on a calendar-year basis, so long as they are clearly labeled as such). As new
reports are prepared, they should be added to (i.e., not replace) the agency's
prior reports. See id. The Department of Justice recommends
that annual FOIA reports be maintained on agency FOIA Web sites for a period
of at least seven years. Accord National Archives & Records Admin.,
General Records Schedule, Schedule 14 (1998) (suggesting that such records not
be disposed of at earlier time); cf. FOIA
Update, Vol. XVIII, No. 1, at 4 (addressing duration of FOIA Web site
postings under "reading room" provisions of Electronic FOIA Amendments).
Conclusion
In conclusion,
all agencies should apply these points of additional guidance, together with
the guidance previously issued, in the preparation of their future annual FOIA
reports. They should do so with full awareness of their statutory responsibilities
under subsection (e) of the Act, 5 U.S.C. § 552(e), and further
awareness of GAO's attention to this particular of aspect of agency activity
in implementation of the Electronic Freedom of Information Act Amendments. See
FOIA Post, "GAO E-FOIA Implementation
Report Issued" (posted 3/23/01) (noting that this subject "can be expected
to be the subject of continuing congressional interest"). Any agency needing
further guidance in meeting its annual FOIA report obligations may obtain assistance
from the Department of Justice's Office of Information and Privacy by contacting
Pamela Maida, at (202) 514-5105. (posted 8/13/01)
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