Critics fault FOIA managers

They say a lack of accountability caused backlog

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FOIA-the black hole

Poor oversight and insufficient resources in offices that respond to Freedom of Information Act requests have created a mounting backlog of unanswered requests for government information, according to some public interest groups.

FOIA requests increased 71 percent between 2002 and 2004. The backlog has risen 14 percent since 2002, Government Accountability Office officials testified in May. Some agencies receive thousands of FOIA requests each year.

Critics say the governmentwide backlog has grown because managers do not set production goals for employees who process the requests. Citizens have testified before Congress about FOIA procedures that do not require agencies to penalize employees for missing statutory deadlines.

Budget problems are another cause of agency backlogs. The State Department, for example, recently laid off 40 part-time FOIA employees whom it had hired for a three-year project to reduce a backlog of unanswered requests. State officials ended the project before they had processed all outstanding requests, said Meredith Fuchs, general counsel at the National Security Archive, a research institute and library at George Washington University.

State officials said the 40 FOIA employees had achieved the project's objective. "They reduced the backlog to fewer than 2,000 cases," department spokesman Noel Clay said. "They surpassed their goal of a reduction of 80 percent."

Fuchs said the archive has more than 1,000 FOIA requests still pending at State, some dating back to 1987. The archive collects and publishes declassified documents acquired through FOIA requests.

Fuchs said she was assured that the employee reductions were temporary and that many of the contract employees will be rehired after the new budget year begins. Meanwhile, she said, a FOIA office employee told her that State would have only a skeleton staff for reviewing records until next month.

Fuchs said State has one of the best-managed FOIA offices. The problem lies with limited resources. Other FOIA offices are not managed as well, she said. In March, Fuchs filed a lawsuit against the Air Force for mishandling scores of FOIA requests. The suit argues that the Air Force failed to acknowledge the archive's requests. It also argues that the Air Force loses requests, fails to process them, doesn't respond to inquiries about the status of requests and generally lets requests languish. "That's bad management," Fuchs said.

Air Force officials said it would be inappropriate to comment during ongoing litigation.

A lack of accountability limits the effectiveness of many FOIA offices, said Mark Tapscott, director of the Center for the Media and Public Policy at the Heritage Foundation, a think tank that promotes free enterprise policy. Tapscott blamed the problem on "the absence of any genuinely serious consequences, either for an individual federal employee responding to a FOIA request or for his or her agency."

One agency has initiated efforts to make FOIA employees more accountable.

In 2001, Christine Todd Whitman, who was then administrator of the Environmental Protection Agency, created a task force to address the agency's backlog of 18,224 FOIA requests, some of which dated back to 1993. The task force reduced the backlog by 75 percent during summer 2002.

Since then, the Office of Environmental Information's Records, FOIA and Privacy Branch has carefully monitored the backlog and worked with EPA program offices and regions to minimize it, said EPA spokeswoman Diane Esanu. As of July 22, the agency had 1,524 unanswered FOIA requests, she said.

New information technology has improved oversight within the FOIA unit at the EPA. In July, the agency began using a Web-based FOIA request management system, FOIAXpress. EPA employees use the new system to enter and respond to all requests. Managers can track the status of requests and check employee response times.

"We expect that the use of FOIAXpress will allow the EPA to maintain a minimum backlog rate and improve the quality, consistency and timeliness of the agency's FOIA responses," Esanu said.

The structure of many agencies complicates the way managers monitor the FOIA process. For instance, the Agriculture Department's FOIA officer, who works in USDA's Office of Communications, does not have access to a central repository of FOIA requests.

"I am one person. I have no staff," said Andrea Fowler, FOIA officer at the USDA's headquarters. "We are divided up into about 20 or so agencies and offices, within [the USDA]. Each of those agencies has a FOIA officer. I couldn't say we have a one-year backlog. I don't have that information."

Lawmakers have been vocal about agency delays in providing public access to government information. In March, Congress introduced the Faster FOIA Act, which would establish a 16-member commission responsible for finding ways to reduce delays. The Senate Judiciary Committee has approved the legislation, and it now awaits full Senate consideration.

Public interest group officials say Congress must work quickly to supply FOIA employees with the financial and managerial support they need to process requests in a timely manner. David Colapinto, director of nuclear litigation and general counsel at the National Whistleblower Center's Forensic Justice Project, said Congress should appropriate funds to agencies specifically for answering FOIA requests. "Unless Congress steps in and funds these positions, it's difficult for [agencies], on their own, to allocate staff to FOIA," he said.

EPA takes steps to improve FOIA response

The Environmental Protection Agency has improved its responsiveness to requests for government information under the Freedom of Information Act. Recent steps, which began under former administrator Christine Todd Whitman, include:

  • Forming a task force to reduce the backlog of requests.
  • Acquiring a Web-based system, FOIAXpress, for tracking FOIA requests and monitoring employees' response times.
  • Continuing to monitor the workload to avoid a sizable backlog.

— Aliya Sternstein


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