On May 13, 2021, the Department of Justice’s Office of Information Policy released a summary of the annual FOIA reports prepared by federal agencies for fiscal year 2020. The staff of FOIA Advisor—Allan Blutstein (AB), Ryan Mulvey (RM), and Kevin Schmidt (KS)—reacts to OIP’s summary.
AB: I used to wait impatiently for these summaries, but in recent years DOJ has made all of the raw data available months beforehand on the website FOIA.gov. If you have not seen that data, which we highlighted here, you will not be terribly surprised to learn that the total number of requests submitted in fiscal year 2020 decreased and that the government’s backlog increased—each likely due in part to the pandemic. Those looking for good news might point to a decrease in the average processing time for “simple requests” from 39.3 days in FY 2019 to 30.23 days in FY 2020. Indeed, OIP touts that fact in the conclusion of its report. But one could rain on that parade by noting that last year’s processing time is still worse than in fiscal years 2012 through 2018. As a parting (positive) comment, I would include U.S. Customs & Border Patrol as one the agencies that performed well despite the pandemic; it reduced its backlog of requests from 10,466 to 1729. Keep up the good work on all fronts.
KS: What stood out to me was the 10 percent increase in staff devoted to FOIA in FY2020 (5,559 full-time FOIA staff) compared to FY2019 (5,002 full-time FOIA staff) along with the 12 percent increase in cost of FOIA related activities. I’m not sure where these increases came from, but hopefully more progress can be made on requests and appeal backlogs in FY2021 if the staffing stays at this level or increases.
RM: Honestly, I was rather surprised by the drop-off in requests, especially given the contentious nature of the federal government’s COVID response. I would have expected some decrease, but not an effective return to FY 2016 levels. I suppose this data could confirm a sort of “Trump” surge in requests over the last four years; a lot of requesting saeems to have been driven by political interests, above all, rather than the sort of “natural” trend we’ve witnessed over the past decades. Opponents of the previous Administration may have seen FOIA as a useful tool for political ends. (I reserve opining on whether that’s a good thing.) For example, if you dig into the data that’s downloadable from FOIA.gov, you can see the agencies where there is the greatest difference in new requests between FYs 2019 and 2020: EPA, USPS, SSA, DOJ, and NARA (very significant spread, there). It would take a bit more investigation to confirm this hypothesis, but the end of the Trump Administration may be more to blame, as it were, than the pandemic.
I also agree with you, Kevin, that the increase in staffing levels, however slight, is interesting and promising. There’s a lot that could be said for agencies devoting more time and energy to FOIA. It seems that they’ve done so, to some extent, and without anything specific in the way of dedicated line item appropriations from Congress.
AB: Just when I thought I was out, they pull me back in. I am skeptical that the decrease in requests had much to do at all with Trump fatigue or the end of the Administration. The fiscal year ended one day after the first presidential debate, about six weeks before the election, and roughly four months before Trump left office. A once-in-a-lifetime pandemic likely sapped the time, ability, and energy of FOIA requesters more than politics. One more comment : if an 8-percent decrease in requests is so significant as to engender disbelief, Ryan, why is a 10-percent increase in staffing so insignificant as to warrant characterizing it as “slight.”
KS: If we are turning to evidence-optional speculation on the drop off in requests in FY2020, I’m going to cut in here before Ryan can jump in. Let me remind everyone of the absolutely insane (fiscal) year that was 2020. It included a presidential impeachment, COVID, passage of the CARES Act, national protests (and some riots), and a Democratic primary. For the most part, these events that drove the news during the year didn’t have a direct nexus to FOIA and many of them required the time and energy of politically active and followers of politics (journalists). Combine that with Trump fatigue and the once-in-a-lifetime pandemic, and you get an 8-percent decrease in requests.
AB: Here we go again. A decrease in requests because of Trump fatigue? Wrong. None of the national events you cite, Kevin, were unconnected to FOIA; records indicating how the Executive Branch handled or reacted to them unquestionably remained of interest. So there. Stuff your request for evidence in a sack.
RM: Let’s talk evidence then. Consider the case of NARA, which I already mentioned witnessed the largest decrease in new requests in FY 2020.
In FYs 2017, 2018, and 2019, the Archives received on average just north of 60,000 requests. That average itself is noticeably elevated compared to earlier annual totals. Maybe the private email controveries towards the end of the Obama White House are to blame, along with continued (and fierce) interest in problematic records management practices under President Trump? Not to mention other Trump kerfuflles, such as the 2017 Women’s March photo scandal. In any case, in FY 2019, NARA received approximately 67,500 requests. Yet in FY 2020, it only received 25,738 requests. That is a tremendous decrease—62%—that may not be explained by the pandemic alone. Or so I respectfully submit.
If you look at data from FOIA.gov, no other major agency, as far as I can tell, has such a huge shift in number of FOIA requests submitted between 2019 and 2020. The next largest decrease is the Social Security Adminitration (35%), followed by Interior (25%), OPM (23%), EPA (22%), FCC (18%), FTC (15%), and USDA (14%). I didn’t notice a huge uptick anywhere. When you glance at these agencies, they all have one thing in common: they were somehow engaged in an especially controversial aspect of the previous President’s policy agenda.
If the pandemic were the principal cause of the decrease in requesting, shouldn’t we expect to see similar trends on other agencies? Why did people care so much less about NARA? Let’s keep in mind that, the decrease of requests submitted to NARA between FYs 2019 and 2020 makes up roughly 61% of the total difference in FYs 2019 and 2020 across all agencies! Moreover, according to NARA’s Chief FOIA Officer Report, at least, these numbers do not reflect requests for archival records. So we’re not talking about researchers making in-person requests at the Archives, but requests for records under the actual legal control of the agency.
I could be wrong. I don’t think I’m misreading the numbers, unless NARA is omitting something. And I do grant there’s a variety of factors that could have influenced the requesting community, as Kevin suggests. Given how public discourse about FOIA and records management generally reached fever pitch under Trump, I’d still wager his departure has influenced requesting trends.
AB: It’s a good thing you’re not actually a gambler, Ryan. I contacted NARA about our debate and here’s the written explanation from NARA’s General Counsel and Chief FOIA Officer Gary Stern:
The significant drop in the number of FOIA requests that NARA received in FY 20 (25,738 in FY 20, as compared to 67,466 in FY 19) was due to the impact of the COVID-19 pandemic. All of NARA’s facilities were forced to operate at a significantly reduced capacity. In particular, NARA’s National Personnel Records Center (NPRC), which receives the vast majority of NARA’s FOIA requests, was limited in its ability even to log in most of the FOIA requests; instead, the NPRC concentrated principally on responding to emergency requests for records concerning medical and burial claims, which are handled outside of the FOIA process.
The Academy Award-winning film Annie Hall includes a glorious scene in which Woody Allen brings out Marshall McLuhan for a cameo appearance to settle an argument—in Woody Allen’s favor—about a professor’s views of Mr. McLuhan’s work. Gentlemen, I believe I’ve had my “Marshall McLuhan” moment here. If life were only always like this.
