The National Security Archive

The Freedom of Information Act AuditPhase 1 - March 18, 2003

Phase 2 – November 17, 2003

• March 17, 2000, won the George Polk Award "for piercing the self-serving veil of government

secrecy, guiding journalists in search for the truth, and informing us all.”

• 28,000+ Freedom of Information Act Requests filed since 1985, liberating 6 million+ pages of former secrets.

• Litigated 34 FOI cases as Plaintiff, Counsel, or Amicus Curiae (won White House e-mail, Oliver North notebooks, JFK-Khrushchev letters, Terry Anderson kidnapper files, etc.).

About the Archive

– Comparative Study of Agency FOIA Processing and Impact of Policy Changes• Identify Best Practices and Problems• Recommend Improvements• Identify Issues to Pursue

– Describe Problems Encountered By FOIA Requester Community

– Assemble Information To Aid Other FOIA Requesters

The Purpose of the FOIA Audit

THE FOIA AUDIT• The Phases of the FOIA Audit:

– Phase One - The Ashcroft Memorandum

- Phase Two –The Ten Oldest FOIA Requests

– Phase Three – Website Audit

– Phase Four - The Card Memorandum

The FOIA Audit: The ASHCROFT MEMO

Was the San Francisco Chronicle right in asserting that the guidance effectively repealed

the FOIA?

In reality what was the impact of the October 12, 2001 Attorney General Ashcroft Memorandum?

Or was it as some senior career officials claimed, "more continuity than change”?

"The Day Ashcroft Censored Freedom of Information,"

January 6, 2002

PHASE ONE: Ashcroft Memo• Eliminates AG Reno’s

“Presumption of Disclosure” for Discretionary Releases.

• Ashcroft Memo: “Any discretionary decision by

your agency to disclose information protected under the FOIA should be made only after full and deliberate consideration of the institutional, commercial, and personal privacy interests that could be implicated by disclosure of the information.”

PHASE ONE: Ashcroft Memo• Eliminates ‘Foreseeable

Harm’ Standard – Replaces With ‘Sound Legal Basis.’

• Ashcroft: “When you carefully consider FOIA requests and decide to withhold records, in whole or in part, you can be assured that the Department of Justice will defend your decisions unless they lack a sound legal basis…”

Ashcroft Memo FOIA RequestThe National Security Archive sent Freedom of Information Act requests to 35 different federal agencies seeking the following:

“All records, including but not limited to guidance or directives, memoranda, training materials, or legal analyses, concerned with the [Agency’s] implementation of U.S. Attorney General John Ashcroft’s October 12, 2001 memorandum on the U.S. Freedom of Information Act.”

Ashcroft Memo: FOIA RequestsTimeliness of Agency Response to the Request: Did anyone make the 20-day time limit?

20 Days or Under to Respond: DOD, FEMA, NSA, NSF,SBA, FBI, NAVY, OMB, ARMY, CIA, USDA, SEC.

Over 90+ days to Respond: HHS, DOE, DOI, HUD, State, DOL, DOT, DOJ, VET, SSA.

Lost the Request: GSA, VET, EDU

Ashcroft Memo: Findings• 5 of 33 Federal departments or agencies surveyed

(15 %) indicated significant changes in regulations, guidance, and training materials and that the Ashcroft Memorandum was widely disseminated.

“These new changes represent a marked shift in FOIA policy and will fundamentally change the way the federal government responds to FOIA requests… A hailstorm of discussion has followed the Ashcroft memorandum among those who regularly work with FOIA policy. “

Taken from: Anderson and Anderson, “Fundamental Shift in Freedom of Information Act

Or Freedom of Information Act– Not so Free Anymore” Dept. of the Air Force

Agencies with Significant Change: Air Force, Army, Navy, Department of the Interior, and the Nuclear Regulatory Commission

Ashcroft Memo: Findings8 of 33 Federal Departments or Agencies Surveyed (24 %) Indicated Implementation Activities Concerning the Ashcroft Memo,

Including its Dissemination and Incorporation into FOIA Regulations and Procedures.

Agencies in this category: Department of Commerce, Department of Defense, Department of Justice, Department of State, Environmental Protection Agency, National Aeronautics and Space Administration, Office of Management and Budget, Small Business Administration

Ashcroft Memo: Findings

17 of 33 Federal departments or agencies surveyed (52 %) indicated awareness and dissemination of the Ashcroft Memo, but indicated little change in regulations, guidance or training materials reflecting the new policy.

Agencies in this Category: Agency for International Develop.Central Intelligence AgencyDrug Enforcement AgencyDefense Intelligence AgencyDepartment of AgricultureDepartment of EducationDepartment of EnergyDept. of Health & Human ServicesDept. of Housing and Urban Develop. Department of LaborDepartment of TransportationDepartment of TreasuryFederal Bureau of InvestigationGeneral Services AdministrationNat. Archives and Records Admin. Office of Personnel ManagementSecurities & Exchange CommissionDepartment of Veterans Affairs

Ashcroft Memo: Findings 3 of 33 Federal Departments or

Agencies Surveyed (9 %) Indicated No Changes in Regulations, Guidance or Training Materials, And Little if No Dissemination of The Ashcroft Memorandum.

U.S. Central Command, Federal Emergency Management Agency, National Science Foundation

“.. FEMA has not issued any guidance, directives, memoranda, training material or legal analyses regarding the implementation of United States Attorney General John Ashcroft’s October 12, 2001 memorandum on FOIA.”

CENTCOM FOIA Officer deployed to Qatar: “What Ashcroft Memo?”

Ashcroft Memo: Conclusion

RESULT: More Secrecy In Government

39% of the Agencies Changed Policies As

a Result of the Ashcroft

Memorandum.

Archive Study Suggests Impact

Strongest in Military Agencies.

Graphic taken from “Report to the President 2003, Information Security Oversight Office,” 31 March 2004

More Secrecy in Government?

Jan 1975 DIA Biographical Sketch on General Augusto Pinochet released in 1999

Jan 1975 DIA Biographical Sketch on General Augusto Pinochet released in 2003

Phase Two: The 10 Oldest FOIA Requests

• Do agency annual FOIA reports accurately portray agency backlog?

• What are the oldest pending FOIA requests in the federal government?

• How extensive is each agency’s backlog?

• How long are FOIA requesters waiting?

The 10 Oldest FOIA Requests

The National Security Archive sent Freedom of Information Act requests to 35 different federal agencies seeking the following:

“Copies of the [Agency’s] ten oldest open or pending Freedom of Information Act requests currently being processed or held pending coordination with other agencies.”

10 Oldest FOIA Requests: FindingsTen Oldest Requests in the federal

government date from November 9, 1987 to December 5, 1989.

The oldest requests came from the Federal Bureau of Investigation, the Department of Defense, the Central

Intelligence Agency, and the National Archives.

← A request to the CIA dated October 20, 1989

A request to the FBI dated → November 9, 1987

10 Oldest FOIA Requests: FindingsAlmost all

agencies had a substantial FOIA

backlog.

The CIA had the most consistent

backlog, all 10 of its oldest requests pre-dated 1990.

The FBI, which had the oldest single request, only had one

request that pre-dated 1990.

10 Oldest FOIA Requests: Findings

• ARMY: Oldest FOIA pending - 3500 days 02’ annual report median - 25 days

• CIA: Oldest FOIA pending - 4090 days 02’ annual report median – 601 days

• FBI: Oldest FOIA pending - 3970 days 02’ annual report median – 90 days

The Annual FOIA Reports Mask The Seriousness of the FOIA Backlogs

Ages of FOIA requests are frequently dramatically larger than the agencies' reported in their 2002 annual FOIA report statistic for

"Median Days to Process”

0

500

1000

1500

2000

2500

3000

3500

4000

4500

Median Days inAnnual Report

02'

Actual Date ofOldest Pending

Request

ARMYCIAFBI

10 Oldest FOIA Requests: Findings

Median times reported to Congress do not include the delays associated with referrals or wrangling over fees, which can add months or years to the process.

The Referral Of FOIA Requests To Another Agency for Processing or Consultation May Doom The Request to Obscurity.

The above is a DIA response received in November 2003 to a request sent to the CIA in December 1987.

10 Oldest FOIA Requests: FindingsIn Larger, Extremely Decentralized Agencies, FOIA Requests Made to Central FOIA Offices May Suffer

Extreme Delays.

Several agencies so decentralized that they were unable to identify their oldest requests. There was no centralized tracking system.

For example, the Occupational Safety and Health Administration (OSHA), a single component of the Department of Labor, stated it would have to contact 100+ separate FOIA officers in order to find its oldest requests

10 Oldest FOIA Requests: FindingsThe Quality of Tracking and Monitoring FOIA

Requests Varies Immensely

Agencies do not follow a uniform method of calculating the time spent processing requests. Some agencies may count and report business days while others count and report calendar days. Most don’t start counting days until a request has been ‘perfected’ and acknowledged. This can add weeks or months to the processing of a request.

10 Oldest FOIA Requests: ConclusionRESULT : Agency Backlogs are extensive and

not accurately represented in the agency annual FOIA reports.

FOIA Requesters can wait over 15 years for a response.

FOIA Audit: Administrative Findings

• Inaccurate or incomplete information about agency FOIA contacts.

• Failure to acknowledge requests. • Lost requests.

• Excessive Backlogs. • Complete Decentralization Leading to Delay and Lack of

Oversight.

FOIA Audit: Administrative Findings

• Complete Decentralization Leading to Delay and Lack of Oversight.

• Inconsistent Practices Regarding the Acceptance of Administrative Appeals.

• Appealing for Lack of Response May Delay Processing, But Also May Get The Agency’s Attention.

• Conflation of Fee Categorization and Fee Waiver Standards.

“We do not process

administrative appeals for failure to meet statutory

time limits.”

FOIA Audit in the News

“Other causes of FOI delays… For one request, he has been

negotiating with the department [of Defense] for more than two months ‘over the fact they think it is too time-consuming. In two

months they could have just fulfilled the request.’ ”

From: “Reporters run into FOIA roadblocks: Freedom’s just another

word?” Editor & Publisher, Seth Porges, 1 December 2003.

“[The Archive] found a 14- year-old request by then-graduate student William Aceves… “every few years I’ll get a call or a letter that my FOIA is still being worked on and asking whether I’m interested in it,” says Aceves, now a college professor in California. “I still want the records.” ”

The FOIA Audit: Coming Soon

Phase 4 – Card Memo Requests• March 19, 2002 issued by

White House Chief of Staff Andrew Card

• Advised government information, regardless of its age, when related to weapons of mass destruction should be more readily protected.

Website Audit and The Card MemoPhase 3 – The Website Audit

Examining Agency FOIA Websites

CreditsPowerPoint Presentation Designed by Barbara Elias

FOIA Audit Reports Written by Meredith Fuchs

Additional Research by Barbara Elias, Will Ferroggiaro and Meredith Fuchs

Edited by Thomas Blanton