Waiting for Freedom of Information: Some Progress

The 29 largest agencies responsible for handling 97 percent of all federal FOIA requests reported more releases, faster responses overall, but longer waits for agencies to resolve disputes. Appeals resulted in more disclosures. Among dozens of smaller agencies we also analyzed, public interest in information about banking and oversight of the financial sector drove up requests to the FDIC and Federal Reserve; neither could keep up.

This analysis by the Sunshine in Government Initiative compares what 29 agencies reported in 2009 and 2008 and shows slow but significant improvements in the way agencies handle implement the country's main open government law and paints a unique portrait of the federal government's responses to FOIA requests.

The data for 2009 should provide caution to optimists who hope that the White House efforts to push federal agencies towards greater transparency will yield quick results. It also shows a danger in reforming FOIA. The government scored some wins. Agencies made more full and partial releases overall. Federal entities also granted more disclosures when requesters appealed, but requesters had to wait longer for their appeals. Fixing the challenges the public faces when using FOIA cannot be zero-sum.

Perhaps most significantly, agencies had a mixed record in efforts to reduce backlogs. The administration's Open Government Directive set one measurable objective for improving FOIA operations: reduce backlogs by ten percent. Meeting this goal presents a challenge to many agencies. But the 10 percent is achievable: Twelve agencies met this benchmark in 2009 and will have to repeat the feat in 2010.

Agencies reported interesting trends in the way they handled Freedom of Information Act requests in 2009, the first year of an administration which has repeatedly stated a commitment to open government. Key findings from the analyses:

- For more requesters, the wait was worth it. The rate of requests granted all or in part rose to 62% overall; without HHS, OPM, Social Security, and VA, which can skew results, responses with some type of disclosures rose from 55 to 62 percent.

- The average wait time generally improved, some agencies significantly improved. Fifteen of the 24 agencies that use a simple tracking shortened the average number of days requesters wait for a response. The SEC dropped their wait average waits for simple requests from 158 days to 27.

For complex requests, the results are uneven. Of the 23 agencies reporting complex requests in both 2008 and 2009, 12 reported improvements. Transportation cut its wait times from 101 days on average in 2008 to 58, HHS from 300 to 141. The National Archives and Records Administration cut its wait time from an average 480 days to 264. But NASA's jumped from 83 to 151 days. And the State Department suffered; average wait times jumped from 275 to 384 days by the end of 2009.

- But the appellate backlog rose. The rate of backlogged appeals rose to 75% overall and 70% in the primary group, suggesting agencies put emphasis on clearing the backlog of primary requests at the expense of appeals.

- Interest in information about the economic crisis spurred more requests, but the Fed and FDIC did not keep up. The Federal Reserve had a handful of pending cases at the end of 2008, but by the end of 2009 saw a significant backlog of 20 percent of the volume the Fed processed. The FDIC started 2009 with 62 cases pending but by year's end left 224 cases unfinished.

- Some agencies dropped backlogs, while others couldn't keep up. There were fewer pending requests, but the United States Customs and Inspection Service (USCIS is part of DHS) accounts for much of the gains. Overall, the agencies in our primary comparison group cut the combined backlog rate in half, and the actual number of requests backlogged by 47 percent, but that was mostly on the shoulders of Homeland Security with cut its backlog from 77% to 17%, or 56,560 requests. Of this drop, the USCIS accounted for much of those reductions. Twelve of the 29 actually saw increases in their pending requests.

- Requesters did better on appeals, too, when they got an answer. Overall, requesters won their appeals a third of the time (33 percent) in 2009, up from only a quarter of the time in 2008. But they had to wait for the answer: The backlogs on appeals rose from 67 to 75 percent during 2009.

Smaller agencies

It doesn't matter if you're large or small. The performance generally is the same. We looked at an additional 33 agencies accounting for roughly one percent of all the requests the federal government received in 2009.

- Even small agencies have significant backlogs. The Office of the Director of National Intelligence, Federal Reserve, Federal Deposit Insurance Corporation, and the FCC all had significant backlogs (defined as at least 50 requests) of pending requests at the end of 2009.

- Of the other small agencies, only the FCC reduced backlogs by 10 percent in 2009. Of those, only the Federal Communications Commission had a significant backlog (defined as 50 requests or more pending) that they were able to reduce by 10 percent or more.

A note about the data

This analysis relies on data from 2008 and 2009 as reported by the federal agencies and made available on by the Department of Justice Office of Information Policy. We also calculate backlog consistent with analyses in prior years by the Sunshine in Government Initiative and the Coalition of Journalists for Open Government by relying on the number of requests pending at the end of the year. Other analyses may rely on the number of pending requests that have been waiting for longer than 20 days, which would result in a difference in the calculations.

The Sunshine in Government Initiative would like to express gratitude to Pete Weitzel for assembling the data from the 29 agencies, and Chris Green for analyzing an additional 33 smaller agencies.

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