FOIA Advisor

Commentary: DOJ's summary of FY 2016 annual reports

Commentary (2017)Allan BlutsteinComment

Yesterday DOJ's Office of Information Policy released its summary of agencies' fiscal year 2016 annual FOIA reports.  The staff of FOIA Advisor -- Allan Blutstein, Kevin Schmidt, and Ryan Mulvey -- share their observations.

A.    A good deal of this data was made available by DOJ six weeks ago, which I am happy to revisit, but I'll start by pointing out several new items that initially caught my eye.  The bad news first:  the average time to process "simple" requests skyrocketed by nearly 22 percent (p. 12).  And a pet peeve of mine: the government continues to ignore consultations that agencies have with the White House (p. 14).  Some good news: the average time to process administrative appeals decreased by 30 percent (p. 17).  

R.    The data on exemptions are interesting (pp. 7-8).  Exemptions 7(C) and 7(C), taken together, accounted for over half of all instances of redaction (27.87% and 23.64%, respectively), and Exemption 6 was the single most cited exemption (29.90%).  Use of Exemption 5 (8.53%) only slightly increased from FY 2015, but that's still way down from FY 2013 and FY 2014 levels.  Of course, I'm not sure whether any of this really tells us anything about how agencies are actually processing responsive records though.  The use of Exemption 6, for example, to withhold information such as personal phone numbers or portions of email addresses likely skews things a bit.  Nearly every agency record has some uncontroversial (b)(6) material that is withheld.  If we were just looking at the redaction of the sort of substantive information most requesters are trying to get, I expect the use of Exemption 5 would skyrocket.  I'd also be interested to know, with respect to Exemption 5, which privileges have been cited and how frequently.

Some other thoughts: I'm amazed that NARA is processing all of the "ten oldest pending requests," which date from between 1993 and 1998 (p. 11).  Also, I agree with Allan about the deficiency of the discussion of consultations (pp. 14-15).  There's some ambiguity, I think, in what the reported numbers represent.  It'd be better for agencies to report how many consultation requests have been sent out and returned, and to whom they were sent, rather than account for how many were received and "processed."

K.    Disappointed that litigation-related costs as a percentage of FOIA has remained constant since FY 2009 at about 7% (p. 19). The "presumption of openness" and the increase of proactive disclosures noted on p.19-20 don't seem to be having an effect on litigation, although 85% of the proactive disclosures are from NARA. 

If agencies received 6,159 consultations in FY 2016 (p. 14), how many consultation requests did the White House receive and how many of those overlap with the consultations noted in this report? Thoughts? 

A.   The existence of OGIS also apparently has not driven down the percentage of litigation costs either, Kevin, though it is fairly powerless to prevent lawsuits based on the agency's failure to timely process a request.  Unrelated,  I want to briefly raise the statistic touted by DOJ that the government has a 91 percent "release rate" (pp. 5-6, 19).  This does not mean that the government released records in response to 91 percent of all requests filed.  Rather, it means that when the government actually processed records in response to a request (approximately 63 percent), the government released at least a portion of at least one page.   So it is not the most meaningful measurement of the government's transparency.

R.    That's a good point about the 91% "release rate," Allan.  And I can imagine that a fair number of requests in the "Released in Part" category on page 6 resulted in production of records that had most meaningful content withheld.  On a separate note, I was disappointed to see the FOIA backlog increase by nearly 12% (pp. 9-10).  I suppose between the loss of momentum from the Obama Administration's efforts to decrease the backlog, on the one hand, and the deluge of requests pouring in about Clinton and Trump, on the other--not to mention limited agency resources--an increase was inevitable.  I can't say I'm optimistic for the coming year.

K.    The 91% "release rate" has long been criticized by the FOIA community, including by the National Security Archive in its newsletter today:

The figure is disingenuous because, as Archive Director Tom Blanton told the Senate Judiciary Committee in 2015, “The Justice Department number includes only final processed requests. This statistic leaves out nine of the 11 reasons that the government turns down requests so they never reach final processing. Those reasons include claiming ‘no records,’ ‘fee-related reasons,’ and referrals to another agency. Counting those real-world agency responses, the actual release rate across the government comes in at between 50 and 60%.”

I'll end with a wish list for the FY 2017 summary:

  1. Stop using the disingenuous "release rate"
  2. Start including data on White House consultations 
  3. Include more specificity on Exemption 5