The Growing FOIA Backlog Undermines Government Transparency

By Johnny Kampis, Issues & Insights | September 30, 2024

The U.S. Government Accountability Office found that while federal agencies are generally required to process open records requests within 20 working days, the backlog of Freedom of Information Act requests has risen considerably in recent years.

In its own efforts in obtaining public information for the public, the Taxpayers Protection Alliance Foundation (TPAF) has experienced significant delays, waiting more than a year on at least one FOIA request.

GAO found that by fiscal 2022, the federal FOIA backlog had grown to more than 200,000, continuing a long-term upward trend.

“This growing backlog can hinder government transparency and accountability, and slow individuals’ access to information,” the report stated. “In other cases, the backlog may affect individuals’ ability to efficiently obtain information, such as immigration records, that they need to exercise their rights or apply for vital benefits.”

TPAF is still waiting on responses on three FOIAs submitted in 2023 to three different federal agencies, in one case experiencing a delay in information of more than one year.

In November 2023, TPAF requested from the Agriculture Department information relating to Alaska broadband grant applications, as well as information relating to monoclonal antibodies discussions at the U.S. Food and Drug Administration. Previously, in June 2023, TPAF sought a letter regarding th Transportation Security Administration’s audit of CLEAR.

Of those three, only TSA has responded, sending an email in September 2023 showing how TPAF could track the status of the request. But there have been no updates in the 12 months since.

TPAF has found that some agencies have been more forthcoming than others. For example, the FDA has generally responded in a timely manner to the watchdog’s requests and produced a range of information from World Health Organization-related discussions to phase product approvals.

Other agencies such as the Consumer Financial Protection Bureau drag their feet and resort to obstruction tactics. On May 24, TPAF requested that the CFPB release documents related to a recently produced agency report. Despite the agency giving no indication on its website as to who was involved in writing the report, CFPB responded on May 30 telling TPAF it could not fulfill its request unless TPAF provided the names of agency employees for email search purposes. TPAF responded on June 17 explaining the impossibility of that demand, and three months later, has yet to hear back from the CFPB.

These results are far afield from how FOIAs are supposed to work. Agencies are required to respond to requests within 20 business days, with the response including a determination of the scope of the documents the agency will produce and any exemptions they will claim with respect to any withheld information. Then, the agency must either provide documents to the requester, explain why more time is needed to gather the information, or inform the requester why their request was denied. The agency can also work with the requester to narrow the scope of the request and arrange an alternative time frame for processing the amended request.

GAO discovered that other federal agencies have worse backlogs than the ones queried by TPA. The office found that the Justice Department, Homeland Security, Defense, State, and Health and Human Services accounted for 80% of all backlogged requests.

In an analysis of chief FOIA officer reports from those agencies from 2019 to 2023, GAO found that the greatest factors adding to the open-records request backlogs are staffing and increasingly more complex and wide-ranging FOIA requests. Litigation is also a major factor, with the number of FOIA litigation cases filed more than doubling from 2013 to 2022. One federal employee told GAO that 90% of the agency’s FOIA resources are dedicated to processing cases in FOIA litigation.

“Court ordered deadlines to produce records often require that agencies prioritize requests that are in litigation, thereby diverting staff and resources away from processing other requests. Consequently, the number of backlogged requests increases and requesters without cases in litigation are disadvantaged,” the report states.

GAO notes that FOIA is a critical tool for the public to access federal government information, but that the “growing government-wide request backlog undermines transparency and accountability.”

The federal auditor recommended that the DOJ’s Office of Information Policy require that agencies include elements of effective action plans in their backlog reduction plans, including specific goals, performance measures and time frames for implementing actions.

A more streamlined system will hopefully help federal agencies clear their backlogs. Americans deserve transparency in their government that cannot be achieved if they can’t access information about federal agencies’ decision-making.

Johnny Kampis is the director of telecom policy for the Taxpayers Protection Alliance.

Original article link