ANALİZ & ARAŞTIRMA DOSYALARI

25-Year-Old FOIA Request Confirms FOIA Delays Continue Unabated

Published: Mar 8, 2019

Audit
compiled and written by Lauren Harper, Nate Jones, Tom Blanton, and Tena-lesly
Reid

For
more information, contact:

202-994-7000 or nsarchiv@gwu.edu

Cap on
Referral Length Would Help Solve Backlogs, FOIA Requests Old Enough to Rent a
Car

Washington,
D.C. March 8, 2019 – Five federal agencies have FOIA requests more than a
decade old and one, the National Archives and Records Administration, has a
FOIA request more than 25 years old, this according to a National Security
Archive Audit released today to mark the beginning of Sunshine Week. The survey
also found there is a correlation between agencies with the oldest FOIA
requests and those with the largest FOIA backlogs.

The
Archive Audit team parsed through the annual FOIA reports federal agencies are
required to submit to the Department of Justice’s Office of Information Policy
and found that while many agencies appear to have used new reporting
requirements as a tool to address the oldest agency FOIA requests, others have
let decades-old requests linger. The Archive used the Fiscal Year 2017 reports
because they were the most comprehensive collection available at the time of
publication due to the delay caused by the government shutdown, and will update
this posting once the complete set of FY 2018 reports are available.

The
key driver for FOIA requests that could be renting cars by now and growing
backlogs is the “referral
black hole.” Agencies currently refer or consult on any FOIA request in
which it feels another agency or agencies may possibly claim ownership of, or
“equity” in, the information within the records. This daisy chain of
referrals can often result in decades-long delay, and the re-review of the same
document by multiple agencies is redundant, costly, and inefficient.

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, and the OPEN Government Act of 2007 codified the requirement that
all agencies report their oldest open requests. Back then, the oldest request
was only 18, old enough to enlist in the Army. Congress intended the reporting
of oldest requests to be a management tool and incentive for agencies to clear
the worst of their backlogs; clearly the agencies at the top of our chart are
not fulfilling Congress’ intent and not managing their worst offenders.

In
2011, a National
Security Archive audit found and identified the owner of the then oldest
FOIA request in the federal government, Dr. Monte Finkelstein. Upon being
appraised of this “honor” he wrote to the
Archive, “When I made the
original request in 1993, I was a Professor of History at Tallahassee Community
College and was writing my book, Separatism, the Allies and the Mafia; the
Struggle for Sicilian Independence, 1943-1948. It was published in 1998…I
finally gave up waiting for any other materials that I may have requested
suspecting that for reasons beyond my control the material was not going to be
declassified for my use. …I would be interested to know if anything will be
done to speed up the process of answering FOIA requests. I know that it would
be very helpful to historians if they did not have to wait 18 years to get
materials”.

In
addition to insufficient agency attention to – and budgets for – FOIA,
referrals and consultations are a likely factor in many, if not all, of the
ancient FOIA requests. The holder of the oldest FOIA request, the U.S. National
Archives and Records Administration, should take the advice from the
federal Public
Interest Declassification Board, which recommended that NARA’s National
Declassification Center must recognize that “clinging to manually-intensive
[referral] processes diverts increasing dwindling resources …There must be an
understanding and agreement that the current practice of having one, two or
more persons conduct a laborious page-by-page declassification assessment for
each record under review is an unsustainable practice.”

The
National Security Archive believes that a
presidential memorandum still on the books from the previous administration
already relieves NARA of the requirement to beg other agencies to help it with
its FOIA requests. The memo states “further referrals of these records
are not required except for those containing information that would clearly and
demonstrably reveal [confidential human sources or key WMD design concepts].”
Previous large declassification review projects have also shown that a “one set
of eyes–one decision” review is possible, effective, and desirable. Both the JFK Assassination
Records Review Board and (to a lesser extent) the Nazi War Crimes and Japanese Imperial
Government Records Interagency Working Group have shown that
declassifiers can effectively be unleashed from the bonds of mandated equity
re-review.

If NARA
believes it needs more authority to declassify the historic records in its
holdings, it should ask Congress for it. A line stating “The National Archives
and Records Administration shall have declassification authority for any and
all records in its possession” should do the trick.

Other
agencies should begin by following the 2014 Department of Justice Office of
Information Policy-issued guidance on
“Referrals, Consultations, and Coordination” which instructs
agencies to improve tracking requests, communicate better with requesters, and
introduced the requirement that an “agency receiving the referral [should]
place the records in any queue according to that request receipt
date.”

But as
our audit shows, this guidance is not enough. If Congress wanted to fix the
“referral black hole,” it could pass a law stating: “An agency must
unilaterally process any record requested under FOIA, if any FOIA referral or
consultation takes longer than one year.”

The
National Security Archive has conducted 17 FOIA Audits since 2002. Modeled
after the California Sunshine Survey and subsequent state “FOI
Audits,” the Archive’s FOIA Audits use open-government laws to test
whether or not agencies are obeying those same laws. Recommendations from
previous Archive FOIA Audits have led directly to laws and executive orders
which have: set explicit customer service guidelines, mandated FOIA backlog
reduction, assigned individualized FOIA tracking numbers, forced agencies to
report the average number of days needed to process requests, and revealed the
(often embarrassing) ages of the oldest pending FOIA requests. The surveys
include: