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From the Summer 2008 issue of The News Media & The Law, page 20. The following is the introduction to…

From the Summer 2008 issue of The News Media & The Law, page 20.

The following is the introduction to a new report on FOIA processing in the federal agencies, compiled by the Coalition of Journalists for Open Government.

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A just-completed study by the Coalition of Journalists for Open Government shows that federal departments and agencies have made little if any progress in responding to Freedom of Information Act requests, despite a two-year-old presidential order to improve service.

The CJOG findings are in stark contrast to a bullish Justice Department report made public in mid-June that claims “remarkable improvements.”

The CJOG review of performance reports shows agencies did cut their record backlog but more because of a steep decline in requests than stepped up processing of requests. It also indicated scant improvement and some regression in traditional measures of response, including the amount of time requesters have to wait for an answer and whether a request or an appeal is granted.

The Justice Department based its assessment primarily on progress agencies made toward self-established process goals. The CJOG study, using reporting requirements mandated by Congress, assessed actual performance in responding to FOIA requests.

The CJOG study looked at 25 departments and agencies that handle the bulk of the third-party information requests. It looked at but did not incorporate a comparative analysis of the performance of four agencies, including the Department of Veterans Affairs and the Social Security Administration, that include large numbers of first person Privacy Act requests in their FOIA reporting. These requests are quickly and routinely handled and their inclusion would skew a meaningful analysis of FOIA response issues. Here’s what the CJOG review found:

• The 25 agencies blew an opportunity to make a significant dent in their huge backlog of requests. Those agencies received the fewest requests since reporting began in 1998 — 63,000 fewer than 2006. But they processed only 2,100 more requests than they did in 2006 when the backlog soared to a record 39 percent.

• The backlog fell to 33 percent of requests processed, primarily because of significant reductions at Homeland Security (97 percent to 62 percent), HUD (188 percent to 10 percent), and the Securities and Exchange Commission, (126 to 55 percent). Eleven agencies showed no improvement or greater backlogs.

• Faced with a mandate to bring down the backlog and improve service, agencies cut FOIA personnel. The number of FOIA workers fell by 8 percent. Spending on FOIA processing was down 3 percent.

• Agencies got even stingier in granting requests. Fewer people got all the information they sought than at any time since agency reporting began in 1998. The percent of requesters getting either a full or a partial grant fell to 60 percent, also a record low.

• Those who got information still had to endure lengthy delays. Fifteen of the agencies reported slower processing times than the year before in the handling of “Simple” requests and 13 showed slower times in dealing with “Complex” requests. And all 21 agencies that processed requests in the “Complex” category said they missed the 20-day statutory response deadline for at least half of the requests processed.

• Those who file administrative appeals are usually out of luck. Even more so in 2007. However, a majority of the agencies said “no” more quickly. In 2007, the percentage of appeals granted dropped to the lowest level in 10 years. Only 13 percent of those who appealed got any satisfaction. Of those who appealed, only 3 percent got all the records requested; another 10 percent received a partial grant.

In its report, the Justice Department noted at one point that the executive order challenged agencies to deal with the severe backlog of unprocessed requests in a manner “consistent with available resources.”

The CJOG study shows that FOIA spending at the 25 agencies studied fell by $7 million to $233.8 million and the agencies put 209 fewer people to work processing FOIA requests.

A few agencies found additional resources, but most did what they did with less. For instance, Homeland Security, despite a 20 percent reduction in FOIA personnel, processed 23,000 more requests in 2007, a 21 percent increase.

The rose-colored Justice report said in boldface that an increase in the number of “incoming requests” challenged agencies on backlog reduction, but that statement is dependent on counting the combination FOIA-Privacy Act requests made to Health and Human Services and the Social Security Administration by individuals seeking personal records. Those agencies have historically handled those requests quickly, with little or no backlog.

The troubled agencies, whose performance prompted the executive order, experienced a significant drop in requests in 2007, a fact ignored by Justice. The 25 agencies in the CJOG study — all of the departments except HHS, plus 12 agencies handling at least 1,000 FOIA requests a year — experienced a 13 percent drop in requests, from 494,270 in 2006 to 431,170 last year.

The Justice report also gives credit in some places where it isn’t due. In citing specific agencies for “improvements in the area of backlog reduction” it named Agriculture, Education, and Labor. Whatever gains they made, it wasn’t in actually reducing their percentage backlog. Indeed, Education and Labor showed both a numerical and percentage gain.

The CJOG study, including a variety of tables showing both full 2007 results and comparisons by reporting categories, can be found at www.cjog.net.