These materials are reproduced from www.nsarchive.org with the permission of the National Security ArchiveEight Federal Agencies Have FOIA Requests a Decade Old, according to Knight Open Government Survey
Oldest Pending Request Now 20 Years Old, still on Referral Among Multiple Agencies
National Security Archive Marks 45th Birthday of U.S. Freedom of Information Act,
Exposes Backlog Problems, Posts 45 Examples of FOIA Impact
Washington, D.C., July 4, 2011 - Forty-five years after President Johnson signed the U.S. Freedom of Information Act into law in 1966, federal agency backlogs of FOIA requests are growing, with the oldest requests at eight agencies dating back over a decade and the single oldest request now 20 years old, according to the Knight Open Government Survey by the National Security Archive at George Washington University (www.nsarchive.org).
The Knight Survey of the oldest requests utilized the FOIA to examine the actual copies of the oldest requests from the 35 federal agencies and components that process more than 90 percent of all FOIAs. It shows that the oldest requests in the U.S. government were submitted before the fall of the Soviet Union. These unfulfilled requests – some are for documents that are themselves more than 50 years old – are victims of an endless referral process in which any agency that claims “equity” can censor their release.
The Freedom of Information Act requires agencies to process and respond to a request within 20 business days, with the possibility of a ten-day extension under “unusual circumstances.” In his March 19, 2009 government-wide memo on FOIA, Attorney General Eric Holder declared that “long delays should not be viewed as an inevitable and insurmountable consequence of high demand.” Despite this, the Knight Survey shows that some FOIAs remain marooned for decades.
The two previous Knight Open government surveys conducted during the Obama administration have also shown that, despite a clear message from the President, government agencies have been slow to improve their Freedom of Information processes. The 2010 Knight Survey, “Sunshine and Shadows,” showed that only 13 of 90 agencies implemented concrete changes in response to President Obama and Attorney General Holder’s early memoranda calling for FOIA reforms. The March 2011 Knight Survey, “Glass Half Full,” showed improvement but still revealed that just 49 of 90 agencies had followed specific tasks mandated by the White House to improve their FOIA performance. As Eric Newton, senior adviser to the president at the John S. and James L. Knight Foundation, put it, “At this rate, the president’s first term in office will be over by the time federal agencies do what he asked them to do on his first day in office.”
In 2003, concerned with the tremendous age of its outstanding FOIAs, the National Security Archive created the “Ten Oldest FOIA Request” metric to illustrate the quantity of unfulfilled requests held by government agencies. In 2006, the Department of Justice directed all agencies to include the date of their oldest pending request in their annual FOIA report. The OPEN Government Act of 2007 codified the requirement that all agencies report their oldest open requests. Now, under the Obama administration, the public can easily search the “Ten Oldest” statistic for all agencies at FOIA.gov.
But seeing just the dates of the oldest requests –not their subjects or who requested them– does not tell the whole story. To get a fuller illustration of the dire backlog, the National Security Archive requested copies of the actual ten oldest requests from the top 35 agencies or components.
Selected topics of the marooned FOIA requests include:
- A 1993 request to the National Archives for 1943 documents about the Sicilian Mafia and Sicilian Separatist movements.
- A 1995 request to the Air Force for documents relating to Pakistani surface to air missiles.
- A 1995 request to the Reagan Presidential Library for documents about “whether American POWs and MIAs were left in Southeast Asia.”
- A 1998 request to the George H.W. Bush Library for documents pertaining to the 21 December 1988 bombing of Pan Am flight 103.
- A 2000 request to the Kennedy Presidential Library for documents relating to “politics and the Internal Revenue Service.”
- A 2004 request to the Nixon Presidential Library for documents about the nuclear consultation between the United States and United Kingdom before the use of submarine-launched nuclear missiles.
- A 2004 request to the Federal Energy Regulatory Commission for documents about Enron’s energy sales to California.
- A 2005 “urgent request” to the Department of Transportation for whistleblower complaints to be used in an upcoming Occupational Safety and Health Administration hearing.
- A 2005 request to the Federal Aviation Administration for information about the tracking information of an airplane which crashed off the Massachusetts coast in December 2005.
- A 2006 request to the Consumer Protection Bureau for documents about the recalled “Polly Pocket Dolls.”
- A 2006 request to the Clinton Presidential Library for documents relating to the US role in the 1994 transfer of power in Haiti.
- A 2009 request to the Johnson Presidential Library for documents related to the 1965 Coup staged by Joseph Mobuto in the Congo.
None of the above requests should have taken years to fulfill; most were for easily identifiable materials that should have been relatively simple to locate. Several relate to areas of U.S. foreign policy that might include sensitive materials, but the FOIA provides well-established ways to protect truly delicate information, so the extraordinary delays are unjustified. Finally, several of these requests are for subjects like whistleblowers, consumer protection, and business – issues of obvious social interest, where the government’s duty to be answerable to its citizens would seem to be most apparent.
In addition to identifying the specific subjects of FOIA requests that the government has not responded to, the Knight Survey also serves as a FOIA competency test. The requests we sent should have been easy to fulfill. They went to the very FOIA offices that were responsible for inspecting the oldest requests and including them in their federally mandated Annual FOIA reports. Troublingly, six months after the National Security Archive filed its requests, nine agencies – almost one-quarter of those polled – still have not responded.
Agencies which have not provided documents in response to our request:
- Army
- Central Intelligence Agency
- Department of Energy
- Department of Justice
- Department of State
- Department of Health and Human Services
- Drug Enforcement Administration
- Office of Personnel Management
- Transportation Security Administration
Because of this inexplicable failure to respond, the National Security Archive has taken the unusual step of filing “constructive denial” appeals – which interpret the agencies’ non-response as an effective denial and opens the door to future legal action.
Some agencies are not reporting accurate data to the Justice Department
Perhaps even more disquieting, the Knight Survey also shows frequent discrepancies between the oldest requests agencies have reported to the Department of Justice in the Annual FOIA report and the actual copies of requests provided to us. Some agencies appear to have outstanding requests years older than what they reported to the Department of Justice. In the most egregious case, the Defense Intelligence Agency responded to our FOIA request with a document four years older than what it reported to the Department of Justice.
At the heart of the problem – the “referral” process
Each agency examined by the Knight Survey has a backlog older than two years. Most are substantially older. Fourteen agencies –more than half– are losing ground on their backlog; their current oldest request is older than it was a year ago.
The key reason for these growing backlogs is the referral process. Each of the oldest requests held by NARA –including the oldest request in the United States– has been referred to at least one other agency for release. NARA stores the documents, but cannot declassify them. It must refer them to any agency which claims partial ownership of, or “equity” in, the information in the records. This daisy chain of referrals can often result in decades-long delay. Re-review of the same document by multiple agencies is redundant, costly, and inefficient. Every FOIA professional is well trained at protecting sensitive material regardless of which agency employs them. Thus, these bureaucratic “declassification turf wars” do not further protect secrets; they merely impede the public’s access to information.
There is hope that the National Declassification Center, recently on its feet at NARA, will ameliorate this problem for documents housed at the Archives, but it will do nothing to fix the problem of equity and referrals for documents “possessed” by other federal agencies.
Forty five years ago, the birth of the Freedom of Information Act established the profoundly American commitment to open government and access to information. Yet these decades-old FOIA requests show that US government agencies must do much more –including tackling the problem of equity and referrals– to make that commitment a reality.
