On June 1, 2020, the Department of Justice’s Office of Information Policy released a summary of the annual FOIA reports prepared by federal agencies for fiscal year 2019. The staff of FOIA Advisor—Allan Blutstein (AB), Ryan Mulvey (RM), and Kevin Schmidt (KS)—reacts to OIP’s summary.
AB: Kudos to the government for its 7.9 percent reduction in the overall FOIA backlog, but that progress will likely be wiped out and then some by the COVID-19 pandemic, which OIP implicitly acknowledges in the conclusion of its report. Two other statistics stood out to me. First, the average processing time for “simple” requests climbed from 30.22 days to 39.3 days, a nearly 30 percent increase. Second, the average time to adjudicate requests for expedited processing increased from 10.27 days to 14.82 days, the second-slowest time in the past nine years.
KS: There appears to be some important progress here in backlog reduction and number of requests processed, but COVID-19 is going to wipe out any gains made in recent years through no fault on the part of agencies and employees. One possible upside is that agencies that are behind on technology may be forced to invest in upgrades to catch up and/or prepare for a future with more remote FOIA employees. Other than the items mentioned by Allan, the administrative appeals backlog increasing by 6.72% caught my eye.
RM: I was surprised there wasn’t any increase from FY 2018 to FY 2019 in the number of requests filed, but actually a slight decrease. And I was similarly impressed by the progress made on the backlog—though you’re both right that the pandemic will likely seriously impact these gains. I’d like to see agencies reporting on when they withhold parts of records as discrete “Non-Responsive Records.” As we all know, this is a “hot” topic at the moment. OIP gives us data on “No Records” and “Not Agency Record” determinations; it seems reasonable to start recording the use of “Non-Responsive Record,” now that we’re in a post-AILA world. Finally, as I believe I’ve mentioned in the past, I’d like to see some effort to separate out first-party/Privacy Act requests from the data, whenever possible. I don’t find it especially helpful to know DHS is receiving 47% of all FOIA requests, when the agency defines “FOIA Request” broadly to include Privacy Act requests.
AB: To Ryan’s latter point, the annual agency FOIA reports used to include the first-party requests of all agencies, which would often raise the total number of requests above 20 million—most of which were submitted to the Social Security Administration (where, coincidentally, I first worked after law school and encountered FOIA/PA). In the wake of the OPEN Government Act of 2007, however, DOJ instructed agencies to include Privacy Act requests in their fiscal year 2008 reports only if the FOIA was utilized in some way in responding to the request. History lesson for the day.