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DOJ masks true state of FOIA processing, says National Security Archive

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The fields of green in an August Justice Department traffic-light scoring report on agency Freedom of Information Act administration are an exaggeration, says the National Security Archive at George Washington University.

The DOJ report (.pdf) assigns a colored grade for 17 metrics to the 99 federal agencies subject to FOIA. The National Security Archive, a highly active FOIA requester, notes in an Aug. 15 blog post that more than 80 percent of the grades are green, suggesting a highly positive picture of FOIA responsiveness among agencies.

"The true state of FOIA in the US is markedly more mixed; the DOJ OIP is engaging in grade inflation," says Nate Jones, archive freedom of information coordinator.

For example, the DOJ report begins with a misleading statistic, Jones says, citing the DOJ statement that from March 2011 through March 2012, agencies released records in "more than 92 percent of requests where records are processed for disclosure."

Jones doesn't dispute the figure, but notes that the records processed for disclosure metric excludes a very large number of requests not processed for disclosure for reasons including the requester withdrawing the request after a demand for processing fees, no records being found after a search, or requests being "improper for other reasons."

Some components of the Homeland Security Department in particular have used fees to price requesters out, Jones says, citing a June 1 letter (.pdf) from the Electronic Privacy Information Center to the FOIA ombudsman at the National Archives and Records Administration complaining of the practice.

Agencies also often conclude that no records exist in response to a FOIA request after "performing only a half-hearted search for documents," Jones says.

He also takes a dim view of the department's statement that agencies are "achieving efficiencies" in handling FOIA requests, since those efficiencies can include finding reasons not to process for disclosure a request or making it difficult for individuals to send a request.  

Jones also finds instances of individual grade inflation. For example, DOJ gives the CIA a grade of green for the metric of "Adding New Material to its Website," but the CIA also went for more than 8 months without posting a single new document on its new website. "[Its] online release rate is probably not worthy of  a 'green' grade," he says.

The State Department's green grade for ability to accept FOIA requests electronically should also be lower, Jones says, since State doesn't provide documents in an electronic format, despite that being a FOIA requirement.

For more:
- download the DOJ report (.pdf)
- read the National Security Archives blog post

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