HHS Only Department to Meet Obama’s FOIA Backlog Reduction Order

By Swetha Kareti, @swethak13

The Department of Health and Human Services (HHS) is the only cabinet level agency that was able to meet President Obama’s 2009 instruction to reduce FOIA backlogs by 10 percent per year. Out of the 15 federal departments surveyed, HHS reduced its backlog by 12.7 percent* per year. The average for all federal departments was an 8.21 percent increase. The departments of Homeland Security, State, and Housing and Urban Development are some of the worst offenders, with an average increase of nearly 30 percent per year.

In a 2009 memorandum, President Obama’s Office of Management and Budget called for the creation of an Open Government Directive, based on the “principles of transparency, participation and collaboration” to create a more accountable and open government. As part of this Directive, the administration instructed that “Each agency with a significant pending backlog of outstanding Freedom of Information requests shall take steps to reduce any such backlog by ten percent each year.” Holding agencies accountable for their FOIA backlogs, where in some instances requests have gone unanswered for years, was a giant step towards “creating and institutionalizing a culture of open government.”

A survey of the FOIA backlog numbers found in departments’ annual FOIA reports from 2008-2016 reveal that 14 out of the 15 federal departments were unable to meet this 10 percent reduction goal; in fact, 10 out of the 15 federal departments on average increased their backlogs. Measuring the effectiveness of the Open Government Directive has also been difficult, as several departments, such as the Department of Agriculture and Housing and Urban Development, inconsistently post their backlog data or post broken links to reports.

Select non-cabinet level agencies were also included in the survey. These agencies included the CIA, the Environmental Protection Agency, the U.S. National Archives, the Defense Intelligence Agency, and the National Security Agency. The results from these agencies were also poor, with the possible exceptions of the Federal Communications Commission, NASA, and the Social Security Administration who made some gains in backlog reduction.

According to Melanie Pustay, director of the Justice Department’s Office of Information Policy, the ongoing backlog growth can be attributed to: an increase in the number of FOIA requests (a nearly 40 percent increase from 2009-2014); a government-wide reduction in FOIA staff; and budget cuts.

On the other hand, Michael Marquis, the FOIA director at HHS, may be able to provide a road-map for agencies struggling to reduce their backlogs. Marquis said the HHS was able to meet its backlog reduction goals thanks to an efficient tracking systems, improved customer communication and, most importantly, holding staff accountable. Marquis suggests that “Active management with a constant monitoring of key performance metrics” and “working with staff…to instill and create a sense of urgency” are required to improve FOIA processing. Aside from these improvements, Marquis insists that communication with FOIA requesters and providing them with insight into the process, or providing them with more efficient keywords or search terms to help craft targeted requests, is also an effective way to improve the FOIA experience.

It is important for agencies considering Marquis’ advice to be mindful of helpful vs. unhelpful communication with FOIA requesters. Helpful communication includes conference calls with customers updating them on the progress of their request, or putting them in contact with experts in the area to see which record sets will prove the most helpful. Unhelpful contact includes agencies simply sending a “Still Interested?” letter to requesters. In this instance, if the “Still Interested” letter is not responded to within a small and arbitrary time-frame, FOIA requests, even those that have gone unanswered for years, are closed.

A final consideration: agencies annual FOIA reports are self-assessments that contain data that can be useful, but that doesn’t always tell the entire story. The National Security Archive has long drawn attention to misleading statistics from agency annual FOIA reports that are routinely touted by OIP, namely statistics OIP calculates by counting nearly entirely redacted documents as successful partial releases, and excluding requests denied over fees, referrals, “no records” responses, and requests “improper for other reasons.” The backlog data in these self-assessments would likewise not capture agencies inappropriately closing out FOIA requests to artificially reduce their backlog numbers.

Percentages have been calculated using backlog data included in agencies’ or departments’ annual FOIA reports. The departments surveyed were: Agriculture; Commerce; Defense; Education; Energy; HHS; Homeland Security; HUD; Interior; Justice; Labor; State; Transportation; Treasury; and Veterans Affairs.

The agencies surveyed were: Board of Governors of the Federal Reserve System; Broadcasting Board of Governors; CIA; Consumer Financial Protection Bureau; Council of Inspectors General on Integrity and Efficiency; Environmental Protection Agency; Federal Communications Commission; Federal Trade Commission; General Services Administration; National Aeronautics and Space Administration; National Archives and Records Administration; Office of the Director of National Intelligence; Securities and Exchange Commission; Social Security Administration; DIA; NSA; CENTCOM; Army; Air Force; Navy; and the Marines.