A Snapshot of FOIA Administration: Examining Recent Trends to Inform Future Research

Abstract

This article provides a snapshot of the administration of the Freedom of Information Act (FOIA) in the U.S. federal government. Specifically, using data from all federal government agencies from 2008 to 2016, the article examines indicators of FOIA caseloads, including requests, exemptions, denials, appeals, and backlogs, and FOIA management capacity, including staff, financial issues, and processing times. The snapshot not only highlights recent trends in the administration of FOIA but also informs future research by identifying areas that deserve additional attention, revealing potential sampling or case identification strategies for empirical work, and shedding light on variables that may have implications for theory building.

Keywords

FOIA management transparency

Freedom of Information (FOI) or Right to Information (RTI) laws are a pillar of democratic governance and have become “a benchmark of democratic development” (Carson & Darbishire, 2006, p. 21). They are argued to increase transparency, responsiveness, accountability, and trust, to help reduce corruption and other ethical violations (Grimmelikhuijsen, Porumbescu, Hong, & Im, 2013; Halstuk & Chamberlin, 2006; Piotrowski & Rosenbloom, 2002; Relly & Sabharwal, 2009; Roberts, 2006, 2010), to shape economic activities, and to have positive impacts on governance (Islam, 2003, 2006). At least 115 countries have FOI or RTI laws (http://www.freedominfo.org/), with Sweden’s 1766 Freedom of the Press Act being the oldest in the world (Staples, 2006). In 1966, the United States became the first nation outside of Europe to enact an FOI law. The Freedom of Information Act (5 U.S.C.§552), also known as FOIA, allows for the full or partial disclosure of previously unreleased information and documents controlled by the U.S. government.

In 2016, FOIA celebrated its 50th Anniversary. That year also marked the end of the Obama Administration, which heralded open government as a hallmark. Given the recent attention and anniversary, one would expect to find a burgeoning public administration literature on FOIA. However, most FOIA-related research focuses on broader normative or legal issues, such as the relationship of FOIA to constitutional and democratic values (Halstuk & Chamberlin, 2006; Piotrowski & Rosenbloom, 2002; Rosenbloom, 2007), to law and national security (Feinberg, 2000, 2004), or to governance, transparency, and openness (Carson & Darbishire, 2006; Grimmelikhuijsen et al., 2013; Islam, 2003, 2006; Relly & Sabharwal, 2009). With the exception of a few studies about the impact of technology on FOIA (e.g., Darch & Underwood, 2005; Roberts, 2005), very little research explores the management of FOIA. Instead, scholars tend to address the evolution of the Act, paying particular attention to the normative influences of politics and policy.

While important, this focus on politics and policy has overshadowed another critical aspect of FOIA: the on-the-ground administration of FOIA by public managers. Simply stated, regardless of political winds and policy changes, thousands of public managers throughout the federal government are engaged in the daily activities of FOIA management, and yet we know little about what this looks like at an aggregate level and how it changes over time, let alone about how individual FOIA staff exercise discretion and make decisions on FOIA activities. Perhaps part of the problem is that scholars do not know where to start. Constructing the data set necessary for aggregate analyses about FOIA cases is a tedious task: Hundreds of thousands of FOIA requests and appeals are submitted to more than 100 federal agencies each year. Nevertheless, scholars wishing to conduct in-depth examinations of administrative processes and behavior related to FOIA need this aggregate information to make informed decisions about which aspects to examine and in which agency or agencies. Moreover, those wishing to build theory around FOIA administration need aggregate data to know which variables might matter and what their relationships to one another might be.

To address the need for aggregate information about trends, this article steps back and asks, “What do we know about the administration of FOIA in the U.S. federal government, and what do we need to further investigate?” It uses FOIA.gov, an online portal launched by the U.S. Department of Justice (DOJ) in 2010, which hosts data pertaining to caseloads and management capacity for 102 federal agencies for the years from 2008 to 2016.¹

Given the nature of the variables, we focus on identifying and describing broad and general trends, essentially providing a snapshot of FOIA administration in the U.S. federal government during this time. We understand the limitations of such descriptive analyses but believe they are valuable for several reasons, not the least of which is the importance of freedom of information efforts to democracy (Grimmelikhuijsen et al., 2013; Halstuk & Chamberlin, 2006; Piotrowski & Rosenbloom, 2002; Relly & Sabharwal, 2009; Roberts, 2006, 2010). First, no one has empirically examined aggregate FOIA trends in the U.S. federal government. There is no quick and easy summary addressing key questions: How big are FOIA caseloads in the federal government? How many requests are received annually, and what is the backlog? How many requests are exempt, and how many are granted, denied, and appealed? What is the management capacity of agencies to process FOIA requests? How many staff are engaged in FOIA activities? What are the costs and processing times of FOIA requests? Answering these and other questions creates an important benchmark of FOIA activities that will serve future scholarly efforts in many ways, including the facilitation of comparisons among administrations and their approaches to freedom of information. Second, examining broad trends about how (and how well) FOIA is managed can shed light on commonalities and anomalies, thus helping to detect areas where additional empirical research is needed. Similarly, the trends can inform sampling and case selection strategies for scholars wishing to examine FOIA processes and behaviors in detail. Finally, descriptive analyses may assist future theory-building efforts by identifying important variables and their relationships.

To that end, this article first briefly reviews the history of FOIA since its passage in 1966. Next, it explains the methods used to collect and analyze data and then discusses FOIA caseloads and management capacity using descriptive statistics. We conclude the article with a discussion of the findings and their implications for future research.

A Brief History of FOIA in the United States

The 1966 FOIA “embodies the democratic-constitutional value of governmental transparency” (Piotrowski & Rosenbloom, 2002, p. 649; Rosenbloom, 2007). Often described as the law that keeps citizens in the know about their government (McDermott, 2010), FOIA provides the public with the right to request records from any executive branch federal agency and requires agencies to fully or partially disclose requested records except to the extent that the records are protected by any of the nine exemptions or three law enforcement exclusions (Foerstel, 1999). In addition, federal agencies are expected to proactively publish certain categories of information, including frequently requested records, and can develop their own FOIA regulations in accordance with the Act and with guidance issued by the President or the DOJ. Agencies can be penalized for noncompliance and requesters can appeal to the courts to ensure access (Halstuk & Chamberlin, 2006; McDermott, 2010).

Over the past five decades, Congress has amended FOIA several times, often in response to political or security crises (Feinberg, 2002, 2004; Jaeger, 2007). These legislative changes have acted as a pendulum, swinging back and forth between expanding and limiting the scope of FOIA, and reflect the ongoing tension between enabling public access to information and protecting government secrecy (for a more detailed history of FOIA, see Feinberg, 2002; Halstuk & Chamberlin, 2006; Pozen, 2016). For example, the 1974 Privacy Act (Halstuk & Chamberlin, 2006; Lopez, Blanton, Fuchs & Elias, 2004; Peterson, 1980), the 1996 Electronic Freedom of Information Act, and the 2007 Openness Promotes Effectiveness in our National Government Act (McDermott, 2010) expanded FOIA access and advanced the right to information. In contrast, the 1976 Government in the Sunshine Act, the 1986 Omnibus Anti-Drug Abuse Act, and the 2002 Intelligence Authorization constricted FOIA access and limited the right to information. More recently, the 2010 Dodd–Frank Wall Street Reform and Consumer Protection Act included several provisions that protected the Securities and Exchange Commission (SEC) from FOIA requests. However, 2 months later, Congress passed S.3717,² which repealed those revisions.

In addition to legislative action, several Presidential Executive Orders have affected FOIA. For example, in 1982, President Reagan issued Executive Order 12356, which allowed agencies to withhold information for national security reasons. President Clinton issued several executive directives that expanded FOIA and allowed the release of previously classified documents more than 25 years old and of historical interest. In 2001, President Bush signed Executive Order 13233, limiting access to the records of former presidents.

In 2009, his first year in office, President Barack Obama took several actions that made freedom of information a centerpiece of his administration and ushered in what he called a “new era of openness” (Coglianese, 2009; McDermott, 2010). Specifically, he issued (a) Executive Order 13489, which revoked President Bush’s directive to limit access to the records of former presidents; (b) Executive Order 13526, which allowed the government to classify certain national security information after it has been requested and set a timeline for automatic declassification of information not specifically identified as requiring continued secrecy; (c) the Presidential Memorandum on FOIA (Coglianese, 2009; McDermott, 2010), which directed agencies to use technology and other means to make information available and to respond to FOIA requests “promptly and in a spirit of cooperation”; and (d) the Presidential Memorandum on Transparency and Open Government, which declared that government should be more transparent, participatory, and collaborative (Coglianese, 2009). Moreover, the Office of Management and Budget, as directed in the Open Government Memo, issued the Open Government Directive, which set deadlines for action and required agencies to publish and improve government information, to build a culture of open government, and to create an enabling policy framework. The Obama Administration also released three Open Government National Action Plans (White House, 2011, 2013, 2015), each of which reaffirmed the role of FOIA and outlined goals for improvement and modernization. In addition to President Obama’s actions, Congress passed the FOIA Improvement Act of 2016, which amended FOIA in several ways pertaining to disclosure, procedural, and management issues (see https://www.congress.gov/bill/114th-congress/senate-bill/337/).

With all the changes to FOIA over its 50+ years, and particularly during the Obama administration (Coglianese, 2009), it is a good time to step back and ask, “What do we know about the administration of FOIA in the U.S. federal government, and what do we need to further investigate?” To answer these questions, we use the available data on FOIA.gov to examine a snapshot of FOIA management, paying particular attention to issues involving caseloads and management capacity.

Methods

To gather information about FOIA requests across federal government agencies, we utilized the DOJ’s FOIA portal (https://www.foia.gov). As noted above, the portal hosts data for 102 federal agencies for the years from 2008 to 2016 and allows interested parties to build reports across a number of variables. We categorized all available variables as measures of either caseload (e.g., requests, exemptions, denials, appeals, and backlogs) or management capacity (e.g., staff, financial costs, and processing times).³ We also accessed the DOJ’s Office of Information Policy reports (https://www.justice.gov/oip/reports-1) to generally verify the accuracy of data and locate additional information unavailable on FOIA.gov. All data were collated and analyzed in Excel, using the program’s data analysis tools.

Three limitations are worth mentioning. First, at the time of our analyses, the FOIA portal only had complete data from 2008 to 2016, which means that we are limited to providing a snapshot of how the federal government deals with FOIA. Second, the available data allow only for descriptive analysis. No causal inferences are drawn. Third, data on individual cases, such as the nature of the request, the type of requester, and means of submission, are not available. Despite these limitations, and for reasons stated above, the snapshot serves important research purposes, including providing baseline analyses, identifying areas that deserve additional attention, informing potential sampling or case identification strategies, and highlighting variables that may have implications for theory building.

A Snapshot of FOIA Administration From 2008 to 2016

In the following sections, we present a snapshot of FOIA across all federal government agencies from 2008 to 2016. In general, we not only look at aggregated data across the federal government but also report agency-specific data when appropriate or interesting. We first examine FOIA caseloads and then turn to FOIA management capacity.

FOIA Caseloads

The FOIA portal contains a number of indicators for FOIA caseloads, including requests, exemptions, denials, appeals, and backlogs. Here, we explore these indicators for the federal government as whole, along with some agency-specific data.

Total requests received

This indicator captures the number of new FOIA requests submitted annually to federal agencies. A request can come from any person, to any federal agency, and be on any topic. Figure 1 shows the number of new FOIA requests submitted each year from 2008 to 2016. In 2008, federal agencies received north of half a million new requests. The number jumped 27% by 2015 to 713,050 and then by another 11% in 2016 to 789,075. In addition to a turbulent political environment, the increases could be related to several factors, including better reporting systems constructed by federal agencies in response to executive guidance, increases in the public’s interest in government information in response to major events, or the creation of new independent agencies, such as the Consumer Financial Protection Bureau established in 2011. Determining the reasons for the increase would require, at a minimum, an examination of changes at the individual agency level.

Figure 1.

Number of requests received per fiscal year.

Table 1 shows the 10 agencies that received the most annual FOIA requests from 2008 to 2016. Six agencies appear on the list every year, including five cabinet-level agencies—DOJ, Department of Homeland Security (DHS), Department of Defense (DOD), Department of Health and Human Services (HHS), and the Veterans Administration (VA)—and one independent agency, the Social Security Administration (SSA). Of these, DHS received and handled the most requests, receiving more than 200,000 requests each year. In fact, DHS received about 40% of the total number of FOIA requests in 2015 and 2016, which is double the percentage it received in 2008 (U.S. Government Accountability Office [GAO], 2015a).

Table 1.

Top 10 Agencies Receiving FOIA Requests.

2008	2009	2010	2011	2012	2013	2014	2015	2016
DHS	DHS	DHS	DHS	DHS	DHS	DHS	DHS	DHS
VA	VA	DOD	DOD	DOJ	DOJ	DOJ	DOJ	DOJ
DOD	DOD	HHS	HHS	HHS	DOD	DOD	DOD	DOD
DOJ	DOJ	DOJ	DOJ	DOD	HHS	HHS	HHS	NARA
HHS	HHS	SSA	SSA	SSA	SSA	VA	VA	VA
SSA	SSA	DOS	VA	VA	VA	SSA	DOS	HHS
DOT	DOT	VA	USDA	USDA	USDA	NARA	SSA	SSA
DOL	NARA	USDA	EEOC	EEOC	EEOC	USDA	NARA	DOS
NARA	DOL	DOL	NARA	DOL	DOL	DOS	USDA	USDA
EPA	DOS	DOT	DOL	DOS	DOS	EEOC	EEOC	EEOC

Note. DHS = Department of Homeland Security; VA = Veterans Administration; DOD = Department of Defense; DOJ = U.S. Department of Justice; HHS = Department of Health and Human Services; NARA = National Archives and Records Administration; SSA = Social Security Administration; DOS = U.S. Department of State; DOT = U.S. Department of Transportation; USDA = U.S. Department of Agriculture; DOL = Department of Labor; EEOC = Equal Employment Opportunity Commission; EPA = Environmental Protection Agency.

There is more movement over the 9 years at the bottom of the list, with agencies such as U.S. Department of State (DOS) and U.S. Department of Agriculture (USDA) joining the list and agencies such as the U.S. Department of Transportation (DOT), Department of Labor (DOL), and Environmental Protection Agency (EPA) falling off. The National Archives and Records Administration (NARA) and the Equal Employment Opportunity Commission (EEOC) also regularly appear at the bottom of the list. Although there is quite a difference in the number of requests received by agencies at the top and bottom of this list, those at the bottom still receive an annual average of more than 10,000 new requests—an amount that is generally hundreds of times greater than most other agencies.

It is interesting to note that most of the agencies on this list deal with individual federal benefits or claims (e.g., HHS, VA, EEOC, and SSA) or with issues related to law enforcement and security (e.g., DHS, DOJ, and DOD). This suggests that the nature or purpose of the request and perhaps the nature of the work performed by the agency are important variables to examine when trying to understand the administration of FOIA. Although there are no publicly available data about the nature of the FOIA requests received or the requesters, some insights can be gleaned by looking at exemptions.

Exemptions

When an FOIA request is received, the agency must first verify that the information is not exempt or excluded from disclosure.⁴ Nine categories of information are exempt from disclosure because such records could potentially cause harm to a government or private interest. Federal agencies are not required to release records that fall under these categories, and one or more exemptions can be applied to all or part of a request. The nine exemptions include:

Information that is classified to protect national security

Information related solely to the internal personnel rules and practices of an agency

Information that is prohibited from disclosure by another federal law

Trade secrets or commercial or financial information that is confidential or privileged

Privileged communications within or between agencies, including

A. Deliberative Process Privilege

B. Attorney-Work Product Privilege

C. Attorney-Client Privilege

Information that, if disclosed, would invade another individual’s personal privacy

Information compiled for law enforcement purposes that

A. Could reasonably be expected to interfere with enforcement proceedings

B. Would deprive a person of a right to a fair trial or an impartial adjudication

C. Could reasonably be expected to constitute an unwarranted invasion of personal privacy

D. Could reasonably be expected to disclose the identity of a confidential source

E. Would disclose techniques and procedures for law enforcement investigations or prosecutions

F. Could reasonably be expected to endanger the life or physical safety of any individual

Information that concerns the supervision of financial institutions

Geological information on wells

Table 2 shows that the number of full denials based on exemptions increased from 22,047 in 2008 to a peak of 43,178 in 2016, after a slight drop in 2014 and 2015. Although there is yearly variation (e.g., there was a 30% increase in denials from the previous year in 2010 and 2013), the denial rate based on exemptions does not exceed 17% of the total number of denials between 2008 and 2016.

Table 2.

Total Number of Full Denials Based on Exemptions.

Year	2008	2009	2010	2011	2012	2013	2014	2015	2016
Number of denials	22,047	22,741	29,865	30,356	31,653	41,382	38,642	37,842	43,178

Table 3 shows that the protection of personal privacy (Exemptions 6 and 7C) is among the most frequently cited reasons for exemption (see also Halstuk & Chamberlin, 2006). The protection of law enforcement techniques, procedures, and guidelines (Exemption 7E) is another frequently used reason for exemption. Protections to ensure a fair trial or impartial adjudication (Exemption 7B), and those regarding financial institutions (Exemption 8) and geological wells (Exemption 9), are the least commonly used. Notably, and perhaps unexpectedly, the exemption related to information classified to protect national security (Exemption 1) is also not used widely. Once again, it would be useful to examine these exemptions in light of the nature of agency work and the nature of the requests received, but this information is not readily available.

Table 3.

Exemptions Used for FOIA Requests.

		2008	2009	2010	2011	2012	2013	2014	2015	2016
Exemption	1	3,643	3,839	3,738	4,332	9,982	8,502	6,021	4,576	2,962
	2	49,862	8,111	55,566	21,823	2,911	1,143	1,051	1,678	2,092
	3	12,340	75,247	21,500	35,365	35,705	39,199	34,535	40,148	32,294
	4	14,196	11,050	11,460	11,051	11,715	10,356	9,855	10,683	12,666
	5	52,555	12,421	64,492	55,962	82,085	81,739	70,837	69,291	61,975
	6	75,058	96,493	102,547	95,432	138,382	136,105	134,926	242,118	217,303
	7(A)	7,155	68,503	7,170	7,523	8,495	8,095	8,214	9,234	9,598
	7(B)	355	1,819	278	360	475	283	1,011	1,277	686
	7(C)	66,720	19,693	87,220	83,632	133,024	136,259	132,603	233,340	202,600
	7(D)	8,247	75,897	6,122	6,140	6,213	5,754	6,078	6,895	6,416
	7(E)	38,407	2,692	52,762	51,008	91,890	100,838	104,780	204,069	171,812
	7(F)	851	65,136	1,602	2,870	5,420	2,917	2,508	5,079	3,860
	8	373	606	531	461	408	356	263	250	324
	9	14	19	11	26	36	42	31	46	65

Requests granted and denied

If the records are not exempt, then agencies may fully or partially grant or deny FOIA requests. As Table 4 indicates, although the percentage of fully denied requests has remained fairly stable (perhaps with the exception of 2016, when more than 45% of requests were fully denied), the percentage of fully granted and partially granted requests has changed sharply. Specifically, between 2008 and 2016, the percentage of fully granted FOIA requests dropped by almost half, from over 41% to 21%, whereas the percentage of partially granted/denied requests almost doubled, from nearly 18% to over 33%. It is unclear whether these changes are a function of external issues (e.g., the types and nature of requests made) or internal management control issues (e.g., a backlash by agencies against FOIA requests or a positive use of discretion). Additional data obtained through interviews of FOIA staff or detailed examinations of agency’s FOIA requests are needed to further explore these findings and potential explanations.

Table 4.

Status of FOIA Requests as Percentages of Total Processed.

	Fully granted requests	Partially granted/denied requests	Fully denied requests
2008	41.6	17.8	40.6
2009	34.6	26.3	39.1
2010	38.0	25.0	37.2
2011	37.5	27.2	35.3
2012	35.1	30.1	31.2
2013	35.0	30.0	35.0
2014	28.0	32.7	39.3
2015	22.6	40.0	37.4
2016	21.0	33.5	45.5

However, Table 5, which shows the reasons why requests were denied beyond the nine exemptions, suggests that factors outside of agency control are at work. Only one of these reasons—the absence of the records needed for the agency to respond to the request—falls within the realm of agency control. This is by far the most prominent reason for denials each year (DOJ, 2016) and may be a function of the agency either not creating or not retaining the records necessary to fulfill the request.

Table 5.

Reasons for Denials.

	2008	2009	2010	2011	2012	2013	2014	2015	2016
No record	87,765	82,714	78,630	87,497	94,149	88,333	96,199	129,722	153,035
Records referred	26,504	17,713	20,634	19,304	22,874	16,702	13,944	9,606	7,046
Request withdrawn	21,485	20,137	10,833	11,141	15,320	10,305	11,150	13,540	13,633
Fee-related reason	5,028	6,190	6,652	6,521	5,984	5,140	4,061	4,069	4,630
Not reasonably described	9,807	12,723	7,517	6,479	6,663	7,411	9,013	7,357	7,898
Improper request	33,367	38,128	29,088	31,768	31,167	26,942	27,580	31,875	34,317
No agency record	7,042	7,278	9,288	9,449	10,177	8,874	15,920	18,010	9,720
Duplicate request	14,397	8,732	8,243	9,938	16,343	20,448	27,739	24,459	24,859
Other	7,232	6,503	22,719	10,691	13,142	11,848	9,977	11,340	7,424

The second most common reason for denials is an improper request, which means

the request was not a proper FOIA request and was not perfected for a reason other than not reasonably describing the records sought. For example, if the purported request sought only state or local records, or only asked questions, or failed to provide a certification of identity as required by the agency’s regulations. (DOJ, 2013, pp. 15-16)

Other prominent reasons for denials include records referred (i.e., the agency determined that the responsive records were within the purview of another agency or agency component), duplicate request (i.e., the same requester submitted more than one request for the same issue and records), and request withdrawn (i.e., the requester retracted the request; see DOJ, 2013, pp. 15-16, for definitions of these and other reasons for denials). Fee-related reasons are the least common reasons for denials each year. Together, these findings lead us to believe that denials have more to do with the requester and the application process than the agency itself, although the agency still plays a significant role in facilitating the application process.

Appeals

If an initial request is denied, the filer has a statutory right to appeal to the agency to conduct an independent review of the initial determination. As shown in Figure 2, the rate of new appeals has increased steadily, from 8,800 in 2008 to 15,080 in 2016, reflecting a growing tendency of FOIA requesters to challenge an agency’s initial determination. Although one could speculate that this trend might be related to an increase in the rate of denials, the correlation between the two is not significant. Unsurprisingly, the agencies receiving the most requests (see Table 1) also receive the most appeals. DOJ, DOD, and DHS are on the list of agencies receiving the most requests and the most appeals. HHS, which is at the top of the requests received list, is at the bottom of the appeals received list. Two agencies—the Central Intelligence Agency (CIA) and the SEC—are not on the list of agencies that receive the most requests, but are among the agencies that receive most appeals. Once again, these trends in appeals are likely due to the nature of agency work.

Figure 2.

Number of appeals received per fiscal year.

Backlog

A final caseload measure concerns the backlog, which includes the number of FOIA requests and appeals pending beyond the 20-day statutory time period for a response established by FOIA. Table 6 shows the backlog of both FOIA requests and FOIA appeals. The number of backlogged requests fell by nearly 50% from 133,295 in 2008 to 69,526 in 2010, the smallest backlog on record. Subsequent years saw great fluctuation, with a 20% increase from 2010 to 2011, a 14% decrease from 2011 to 2012, and a 33% increase from 2012 to 2013. The backlog skyrocketed to 159,741 in 2014, which is a more than 67% increase over the previous year. Progress was made, however, in addressing that backlog, with an almost 36% decrease to 102,828 in 2015, which was followed by a slight increase of around 12% to 114,970 in 2016.

Table 6.

Backlog of FOIA Requests and Appeals.

	2008	2009	2010	2011	2012	2013	2014	2015	2016
Backlogged requests	133,295	77,377	69,526	83,490	71,790	95,564	159,741	102,828	114,970
Backlogged appeals	5,837	5,944	3,534	3,011	3,119	3,116	3,696	4,119	4,449

In comparison with the backlogged requests, the number of backlogged appeals appears relatively stable, despite some significant fluctuations. Specifically, after minor growth between 2008 and 2009, the number of backlogged appeals dropped by about 49% to 3,011 in 2011. That number has grown steadily since then, with an almost 47% increase to 4,449 in 2016. Overall, however, there has been a decline in backlogged appeals of about 24% from 2008 to 2016.

Summary of FOIA caseloads

The law of the vital few seems to be the pattern throughout the data on FOIA caseloads: A minority of agencies received a majority of FOIA requests and appeals and handled a majority of the backlog. Specifically, although the number of new FOIA requests submitted each year has grown steadily, only 15 of the 102 federal agencies subject to FOIA process over 10,000 requests per year and only six agencies—DHS, DOJ, DOD, HHS, VA, and SSA—appear on the most requests received list each year. Similarly, the number of new appeals has increased steadily, but only a handful of agencies, including the DOJ, DOD, DHS, CIA, and SEC, receive the most appeals. In the same vein, although the number of full denials based on FOIA’s nine exemptions has grown over the years, the exemptions related to personal privacy and law enforcement were by far the most common. Similarly, the absence of records, improper request, records referred, duplicate request, and request withdrawn are the most common reasons for denials beyond exemptions. In short, although the total FOIA caseload in the federal government (including new requests, appeals, and backlogs) grew between 2008 and 2016, the caseload is not distributed equally across agencies.

Many of these trends point to areas for more nuanced investigation. First, the trends suggest reveal where more empirical research is needed, for example, to explain the increases in requests, appeals, and backlog; the nature of exemptions; and the changes in the rates of fully and partially granted requests. Moreover, given the number of denials based on procedural issues, it would be interesting to examine the FOIA request process from the perspective of requesters. Second, the trends suggest potential sampling and case identification strategies for addressing these and other issues. For example, it would be useful to look more closely at the agencies that receive the most requests and appeals or to look at the agencies that grant and deny the most requests or that issue the most exemptions. Finally, the trends shed light on variables that may be important for building theory around FOIA administration, such as the nature of the agency work, the purpose or nature of the FOIA request, the clarity or complexity of the request, and the type of requesters, among others.

FOIA Management Capacity

Caseloads are only one aspect of the FOIA story. Another important aspect concerns agencies’ internal FOIA management capacity. Here we examine three indicators of management capacity: staff, financial issues, and processing times. Although we recognize that these issues will vary among agencies, our goal here is to explore these indicators for the federal government as whole, although we also occasionally report some agency-specific data.

Staff

The number of dedicated staff positions represents one measure of agency capacity to manage FOIA. Two types of staff work on FOIA: those who perform full-time FOIA work and those who perform part-time FOIA work. “An ‘equivalent full-time FOIA employee’ is created by adding together the percentages of time dedicated to FOIA duties by employees performing less than full-time FOIA work” (see https://www.foia.gov/glossary.html).

The number of FOIA employees in the federal government has fluctuated over the years. Historically, there have been more full-time (FT) than equivalent full-time (EFT) employees, with the exception of 2011, when EFT employees outnumbered FT employees by 2,220 to 2,180. A deeper dive reveals three additional interesting observations. First, in 2008, 47 federal agencies had no full-time FOIA staff (i.e., either FT or combined EFT), compared with only 20 in 2016. This suggests an effort to build organizational capacity for handling FOIA requests. Still, these 20 agencies received a combined total of 486 FOIA requests in 2016. Second, more than 65% of FOIA staff in any single year are located in six agencies: VA, HHS, DOJ, DHS, USDA, and DOD. This is unsurprising given that these agencies consistently are among those that receive the most FOIA requests and often are among those that receive the most FOIA appeals. Finally, there appears to be a disproportionate ratio between the demand for FOIA work and the staffing within agencies to process requests (cf., U.S. Department of Education, 2016; U.S. Department of Energy, 2016).

Table 7 presents the total number of new requests and appeals, the total number of FOIA employees (FT and EFT), and the ratio between these two from 2008 to 2016. At its lowest point, in 2009, there was one employee for about every 147 FOIA cases. At its highest points, in 2014 and 2016, there was one employee for about every 189 cases. It is important to note that this ratio does not include the backlog – were that added, the ratio would be higher.

Table 7.

Ratio of Requests Received to FOIA Employees.

Year	No. of FOIA employees	No. of new requests and appeals	Ratio (employee: requests and appeals)
2008	3,252	568,800	1:174.91
2009	3,558	523,479	1:147.13
2010	4,031	608,241	1:150.89
2011	4,400	654,861	1:148.83
2012	4,068	663,148	1:163.02
2013	4,214	716,292	1:169.98
2014	3,844	726,643	1:189.03
2015	4,010	727,527	1:181.43
2016	4,264	804,155	1:188.59

Financial issues

Another measure of FOIA management capacity involves financial issues associated with FOIA processing. Three financial indicators are available: costs, fee waivers, and fees collected. In our analyses, we adjusted all financial indicators for inflation. It is important to note that we are simply reporting the financial issues associated with FOIA; we are not making any normative judgments about them.

The first financial indicator is cost. An agency incurs at least two sets of costs in the administration of FOIA: (a) costs related to the processing of requests, including duplication expenses and the personnel time required for document searching, reviewing, and reproduction, and (b) costs related to litigation initiated by requesters in response to a full or partial denial of an FOIA request. Figure 3 shows a steady rise of both processing and litigation costs over the past 9 years. Specifically, from 2008 to 2016, processing costs rose from over US$340 million to over US$495 million, whereas litigation costs more than doubled from around US$18 million to almost US$38 million. When aggregated, the total costs of administering FOIA increased by nearly US$175 million between 2008 and 2016. There does not appear to be a direct correlation between cost increases and the number of FOIA requests, appeals, or employees. Nevertheless, the total cost of FOIA services was over half a billion US dollars in 2016.

Figure 3.

FOIA processing and litigation costs (in millions).

A second financial indicator concerns the fees charged for FOIA processing. Fees may be charged to recover the costs of three FOIA-related activities: (a) document duplication, (b) searching for documents, and (c) reviewing documents to determine whether any portion is exempt from disclosure. A requester can ask for a fee waiver under two fairly strict conditions: (a) the request does not serve personal or commercial interests, and (b) the request serves a public interest by making a significant contribution to public understanding of an agency’s operations and activities. Finally, different types of fees are charged to different categories of users, including (a) representatives of the news media and educational or noncommercial scientific institutions whose purpose is scholarly or scientific research, (b) requesters seeking records for commercial use, and (c) everyone not included in the first two categories, such as requesters seeking records for personal use, public interest groups, and nonprofit organizations. Typically, users in the first and third categories are not charged fees (or are charged small amounts) because their work meets the two fee waiver conditions. (For information about FOIA fees and fee waivers, see http://www.foiadvocates.com/fees.html.) Figure 4 shows that in all years except 2016, more fee waivers were granted than denied. The proportional difference between waiver status was zero in 2008, with 50% of waiver requests granted and 50% denied. The greatest proportional difference was in 2011,⁵ with 64% of waiver requests granted and 36% denied. In 2015 and 2016, the proportional difference was again minimal, with about 51% of waiver requests granted and about 49% denied.

Figure 4.

Fee waivers granted and denied.

A final financial indicator is the total fees collected under FOIA, which is particularly interesting to explore in relation to the total uncollected costs. Figure 5 shows that the collection of fees has decreased since 2008. Specifically, in 2008, US$13.6 million in fees were collected, which represents 3.8% of the total cost of FOIA. In 2016, only US$4 million in fees were collected, which was 0.8% of the total cost. Simply stated, the fees collected constitute less than 1% of the total costs of administering FOIA.

Figure 5.

Fees collected in comparison with uncollected cost.

Average processing time (APT) in days

The APT in days varies depending on whether the FOIA request is simple or complex. A simple request is straightforward, and most agencies utilize a separate track for these requests, ostensibly for the purposes of faster processing (U.S. Department of Education, 2016). A complex request typically requires additional steps to process, such as the collection of information from multiple sources.

Table 8 shows the APT for simple and complex requests from 2008 to 2016. The APT for simple requests has remained fairly stable, ranging from a high of 28.5 days in 2016 to a low of 20.51 days in 2014, which is close to the 20-day statutory time period for a response. Some agencies have achieved remarkable declines in APTs for simple requests. For example, the APT for simple requests in DHS declined from 146.31 days in 2008 to 32.9 days in 2016. This trend toward lower APTs for simple requests may suggest that agencies are becoming more efficient in case processing, perhaps by building their internal capacity.

Table 8.

Average Processing Time in Days.

	Simple requests	Complex requests
2008	25.83	82.52
2009	27.63	69.32
2010	28.34	118.93
2011	23.65	103.74
2012	22.66	82.35
2013	21.40	123.17
2014	20.51	118.74
2015	23.00	121.80
2016	28.50	90.33

In contrast, the APT for complex requests has fluctuated more dramatically over the years. It grew from 69.32 days in 2009 to 121.8 days in 2015 and then fell 26% to 90.33 days in 2016. Some agencies have seen extreme growth in APT rates for complex requests. For example, the DOS APT for complex requests grew from 275 days in 2008 to 511 days in 2015. Other agencies have seen impressive drops. For example, the DHS APT for complex requests fell from 107.57 to 73.4 days between 2005 and 2016.

Remarkably, the agencies that have the lowest APTs for simple requests are not the same as those that have the lowest APTs for complex requests. The inverse is also generally true: Most of the agencies that have the highest APTs for simple requests are not the same as those that have the highest APTs for complex requests (although some agencies have high APTs for both simple and complex requests). This general lack of correlations raises questions about why some agencies seem to be better able to process simple requests, whereas others seem to be better able to process complex requests, and still others seem to be unable to effectively process requests at all. This suggests that the nature of agency work, the types of requests received, and factors related to internal capacity may be important considerations when exploring FOIA administration.

Summary of FOIA management capacity

Given differences in staffing and APT rates, the data suggest that the capacity to manage FOIA is not equally distributed across federal agencies. First, the overall ratio of FOIA employees to FOIA cases seems to be high (1:189 in 2016), and more than 65% of FOIA staff are located in only six of agencies (VA, HHS, DOJ, DHS, USDA, and DOD) and 19 agencies have no full-time FOIA staff. Second, the human capacity issue is compounded by the financial aspects of FOIA. Both FOIA processing and litigation costs have grown over the past 9 years to more than US$5.3 billion in 2016. However, even with the denial of approximately half of the fee waiver requests, the fees collected for FOIA administration amounted to less than 1% of total cost in 2016. Finally, the limitations of the human and financial capacity for managing FOIA are reflected in average processing times, and particularly APTs for complex requests, which have grown over the years.

Once again, many of these trends suggest areas for more nuanced investigation. First, the trends reveal areas where more empirical work is needed. For example, it would be useful to explore the factors driving the increases in FOIA costs, given that this is unrelated to numbers of agency requests, appeals, and staff. In addition, more work is needed to understand the inner-agency practices for managing FOIA and how these affect the processing times for both simple and complex requests. Second, the trends also suggest potential sampling and case identification strategies. For example, it would be useful to look at the agencies with no FOIA staff and/or the agencies with the most FOIA staff. Alternatively, it would be interesting to look at the agencies that had no staff in 2008, but had gained staff by 2015, or at the agencies that have the highest and lowest request to staff ratios. In addition, it would be interesting to look at the agencies with the highest and lowest, or sharpest, increases and decreases in APTs for simple and complex requests. Finally, the trends shed light on variables that may be important for building theory around FOIA administration, such as the nature of the agency work, the purpose or nature of the FOIA requests received, the clarity or complexity of the request, staffing rates, and the internal structures for FOIA processing, among others.

Discussion and Conclusion

Although FOIA has captured the attention of many scholars, most research explores its normative, constitutional, and legal implications. No research has systematically examined the processing and management of FOIA in the federal government. We have attempted to fill that gap by using FOIA.gov data to provide a snapshot of FOIA administration in the U.S. federal government from 2008 to 2016. Despite limitations, including a short time span, descriptive analyses, and an aggregate focus on the federal government as a whole, this snapshot is useful for future research. It is not a normative assessment of FOIA, but rather creates a baseline for future data analysis and a benchmark for comparative studies. It also sheds light on areas that deserve additional empirical research, potential sampling or case identification strategies, and variables that may be important in theory-building efforts. In this final section, we discuss the trends with an eye toward future research.

As noted in the summary of FOIA caseloads, new FOIA requests and appeals have grown steadily over the years. More research is needed to investigate the causes of this growth. One obvious potential reason is the general political environment, as well as the ideologies of party affiliations of those in power (Feinberg, 2002, 2004; Jaeger, 2007). Presidents clearly shape dispositions toward freedom of information. For example, the Obama Administration’s focus on open government arguably increased interest in government information, which in turn prompted individuals and organizations to file more FOIA requests (Coglianese, 2009). Similarly, congressional actions might affect FOIA filing rates. For example, the repeal of certain provisions in the Dodd–Frank Wall Street Reform and Consumer Protection Act and the creation of the Consumer Financial Protection Board could have triggered FOIA requests. Regardless, the “heightened tension between the executive and legislative branches, over the kinds of, and timing for, information to be shared” certainly affects FOIA (Feinberg, 2002, p. 226). Thus, a comparison of FOIA trends across different administrations—at least in the discourse on transparency, accountability, and other democratic values—is an avenue worthy of future exploration. The analyses provided here serve as a benchmark for such efforts.

Moreover, other changes in the economic and political environment, including sequestration (and continuing resolutions), financial turmoil (e.g., housing market crashes and the great recession), and other historical events, could have affected FOIA filing rates. For example, national security concerns led to the retroactive classification of information after being requested (Feinberg, 2002, 2004). Likewise, the wars and reconstruction efforts in Iraq and Afghanistan; disclosures by Chelsea (Bradley) Manning, Edward Snowden, and WikiLeaks; and the recent events concerning former Secretary of State Hillary Clinton’s emails certainly affected the FOIA environment (DOS, 2016). It would be useful to identify the timing of such issues and investigate correlations in changes in request and appeals rates, particularly at the individual agency level. Doing so, however, requires transforming years of data in DOJ Office of Information Policy reports from PDF formats into useable, searchable databases. It also compels the continuation of the FOIA.gov portal into the current Trump administration and into future presidential administrations.

One not-so-obvious reason for the growth in FOIA requests and appeals—and one that is likely to be of most interest to public administration scholars—is cost and capacity. First, agencies are required to proactively release certain categories of information without waiting for a specific FOIA request, such as audit reports, final opinions and orders, specific policy statements, certain administrative staff manuals, and other frequently requested records that do not fall under an FOIA exemption or exclusion. There is certainly an economic justification for doing so. In 2016, the total costs of FOIA across the federal government were more than US$530 million. These costs potentially could be reduced were more information proactively released and readily accessible. However, while the goal of and overall economic incentive for discretionary disclosure are in place, the will to do so may be absent. Administrators may believe that FOIA administration detracts from their main mission and drains resources, particularly given that it is not reflected in their performance measures and budgets (Piotrowski & Rosenbloom, 2002). There may also be problems with capacity. Agencies lack an organization-wide system to review records subject to discretionary release, which means that subunits are left to follow that pursuit without agency-wide coordination (DOT, 2016; U.S. Department of Interior, 2016). Moreover, proactive disclosure carries a heavy time and personnel burden for agencies. Expending resources on proactive disclosure would take time away from processing FOIA requests, appeals, and backlogs, an already difficult task given the seemingly high ratio between FOIA employees and FOIA cases.

Second, qualitative research and in-depth case studies might be needed to explore why beyond denials based on exemptions, there was a sharp decrease in fully granted FOIA requests and a sharp increase in partially granted requests between 2008 and 2016. It would be useful to further examine the dispositions of FOIA cases, particularly to determine the extent to which the decline in the number of fully granted requests and the increase in the number of partially granted requests are a function of external issues beyond agency control or internal management issues. On one hand, the data suggest that the majority of the reasons for denials fall outside of agency control. Specifically, with the exception of absence of records, the most common reasons—improper request, records referred, duplicate request, and request withdrawn—have more to do with the requester and the process than the agency. On the other, agencies are required to develop their own regulations and policies in accordance with the Act and any amendments or guidelines. However, some agencies’ regulations are not updated to reflect new amendments and changes (U.S. GAO, 2015b, 2016), and inconsistencies in agencies’ regulations or processes might cause confusion for requesters and restrict access to information (Feinberg, 2002, 2004). It would therefore be useful to examine agencies’ guidelines for filing FOIA requests and appeals, as well as their internal processes for administering FOIA.

Third, the need for research on intra-agency FOIA administration is further buttressed by the data on management capacity. The data show what seems to be a high ratio between FOIA employees and FOIA cases at the aggregate level, as well as disproportionate dispersion of FOIA staff across agencies. There has been a concerted push to ease FOIA administration with the presence of Chief FOIA Officers, the creation of the Chief FOIA Officers Council in 2016, and an increase in the number of staff. However, many agencies still have a high volume of backlogged requests and are unable to meet the goal of closing out the oldest 10 requests (U.S. GAO, 2015b, 2016). Future research should examine the issue of FOIA staffing, particularly in light of the changes involving Chief FOIA Officers and the Council.

Fourth, we need research about the financial costs of FOIA beyond staffing. The total cost of administering FOIA was over half a billion dollars in 2016. Of course, the cost of implementing an FOI or RTI law is often high due to the need to set up and maintain the infrastructure for a public service that is usually free and not fee-based and requires staff positions that fall outside the mission of the agency (Grigorescu, 2003; Neuman & Calland, 2007; Piotrowski, Zhang, Lin, & Yu, 2009; Relly & Sabharwal, 2009; Roberts, 2000, 2006). Moreover, although such costs are normatively justifiable based on democratic values such as transparency and accountability, it is hard to justify budgetary increases to Congress as FOIA is a non-mission-based activity (in all agencies except NARA) and its execution does not contribute directly to agency performance (e.g., Piotrowski & Rosenbloom, 2002). Thus, additional research on FOIA budgets, revenues, and expenditures could go a long way toward making the case for increasing FOIA-related resources.

A final area of management capacity concerns the processing time for cases. Although simple FOIA requests are generally processed quickly, the data show a growing average processing time for complex requests. The delay in processing requests leads not only to a growing backload but also to an increase in FOIA lawsuits and negative agency reputations, which greater efficiency could help avoid (U.S. GAO, 2016; see also Lee & Whitford, 2013). One solution to this problem, which was presented in the FOIA Improvement Act of 2016, is the creation of a system-wide, policy-level approach that addresses the handling and processing of FOIA requests. Time and future research are needed to determine whether this approach positively impacts case processing. However, it may be that agencies do not want quick turnarounds, for example, to delay press stories or for other reasons. In other words, it may be faulty to assume that faster processing of requests is a management goal. Again, more research is needed to determine whether this is the case.

Future research also needs to go beyond an exploration of aggregate trends to include more in-depth examinations of agencies’ internal FOIA processes. The trends reveal several sampling and case selection strategies that could inform such efforts. On one hand, it would be useful to explore FOIA administration in agencies that receive a high volume of requests and appeals. On the other, it would be interesting to explore agencies that have small numbers of FOIA employees (or none at all). Among many other options, this agency-specific research could examine FOIA in relation to government performance (e.g., Piotrowski & Rosenbloom, 2002) or strategic planning (e.g., Moynihan et al., 2011; Rosenbloom, 2007). Comparative analyses also would be useful. For example, multiple agency-level assessments could be used to compare management practices and policies within agencies and subunits to discern variations in the administration of FOIA, including issues such as who makes FOIA requests, how cost-effective processes are, when and why decisions are litigated, and what drives proactive disclosures.

Finally, the trends reveal several variables that may contribute to theory building around the administration of FOIA. Specifically, the findings suggest several organizational and process characteristics that may be important to the administration of FOIA (see Table 9). On one hand, organizational characteristics, including field or nature of work, capacity, and structure, which vary from agency to agency, are likely to be critical variables in agency FOIA-related work. On the other, process characteristics, such as the type of requester and the purpose, clarity and complexity, cost, and the means of the request, also seem to matter and are likely to vary among agencies. The exploration of organizational and process characteristics in the administration of FOIA would not only improve the explanatory power of empirical analyses but also contribute to stronger theoretical development.

Table 9.

Organizational and Process Characteristics Affecting FOIA.

Characteristics
Organizational
Field or nature of work
Capacity
Structure
Process
Type of requesters
Purpose of request
Clarity and complexity of the request
Cost of requests
Means of request

There are many other avenues for future research that we have not addressed here, and we readily encourage scholars to pursue them. Such research is critically important for several reasons, not the least of which is the lack of scholarly studies in public administration and management that address FOIA beyond its normative, constitutional, and legal implications. To advance FOI and RTI research, and transparency research more generally, scholars must move beyond normative conceptualizations and typology development to an empirical understanding of how efforts are managed on-the-ground in administrative settings. The issues and questions discussed above can be used to shape a rich research agenda that takes us well beyond the snapshot provided here and helps us understand how the administration of FOIA is practiced, protected, and promoted to ensure the right of the public to access government information.

Footnotes

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

Notes

ORCID iDs

Khaldoun AbouAssi

Tina Nabatchi

Author Biographies

Khaldoun AbouAssi is an Assistant Professor in the Department of Public Administration and Policy, School of Public Affairs at the American University. His primary research focuses on public and nonprofit management, and examines organizational capacity, resources, and inter-organizational relations.

Tina Nabatchi is an Associate Professor of Public Adminsitraiton and International Affairs at the Syracuse University Maxwell School of Citizenship and Public Affairs. Her research focuses on collaborative governance, citizen participation, and challenges in public administration.

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