Freedom of Information Act (FOIA):
Background and Policy Options for the 112th
Congress
Wendy Ginsberg
Analyst in American National Government
July 26, 2011
Congressional Research Service
7-5700
www.crs.gov
R41933
CRS Report for Congress
Pr
epared for Members and Committees of Congress
Freedom of Information Act: Background and Policy Options for the 112th Congres
Summary
The Freedom of Information Act (FOIA; 5 U.S.C. §552) enables any person to access—without
explanation or justification—certain existing, identifiable, unpublished, executive branch agency
records. Pursuant to FOIA, the public has presumptive access to requested agency records unless
the material falls within any of FOIA’s nine categories of exemption from disclosure. Disputes
over the accessibility of requested records can be appealed administratively or ultimately settled
in court.
FOIA is a widely used tool of inquiry and information gathering for various sectors of American
society—including the press, businesses, scholars, attorneys, consumers, and activists. Agency
responses to FOIA requests may involve a few sheets of paper, several linear feet of records, or
information in an electronic format. Assembling responses requires staff time, search time, and
duplication efforts, among other resource commitments. Agency information management
professionals are responsible for efficiently and economically responding to, or denying, FOIA
requests.
FOIA was enacted in 1966, after 11 years of investigation and legislative development in the
House, and nearly six years of consideration in the Senate. The perception that FOIA
implementation at agencies was not being implemented properly has resulted in amendments in
1974, 1976, 1986, 1996, 2007, and 2010. Among the requirements in the OPEN Government Act
of 2007 (P.L. 110-175), was the creation of an Office of Government Information Services
(OGIS) within the National Archives and Records Administration (NARA). The office was
established to review FOIA design and implementation and recommend ways to improve the
statute and offer mediation services between requesters and agencies as an alternative to
litigation.
The Obama Administration issued a memorandum that requires agencies to reduce their backlog
of FOIA requests by 10% per year. Additionally, the Department of Justice launched FOIA.gov,
an online database that gives users access to interactive tools to examine agencies’ annual reports
on FOIA implementation.
The 112th Congress has examined FOIA implementation at three hearings—two in the House and
one in the Senate. Among the issues discussed at the hearings were concerns about a growing
number of statutory exemptions to FOIA, the value of President Barack Obama’s decision to
make public White House visitor logs, and concerns over whether political appointees were
improperly vetting FOIA responses at a federal agency.
Companion bills, known as the Faster FOIA of 2011, have been introduced in the 112th Congress.
The bills (H.R. 1564 and S. 627) seek to create a 12-member commission that would examine the
implementation of FOIA and recommend ways to reduce processing delays and improve FOIA
administration. The 112th Congress may choose to clarify whether photographs taken of Osama
Bin Laden’s death should be exempted from public release or whether White House visitor logs
should be released to the public. Moreover, the 112th Congress may decide to continue its
oversight of agency implementation of FOIA, including whether each executive branch agency is
responding properly to requests within appropriate amounts of time.
This report discusses FOIA’s history, examines its implementation, and provides potential policy
approaches for Congress. It will be updated as events warrant.
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Freedom of Information Act: Background and Policy Options for the 112th Congres
Contents
Introduction...................................................................................................................................... 1
FOIA Background............................................................................................................................ 2
FOIA Exemptions...................................................................................................................... 3
Obama Administration Initiatives.............................................................................................. 4
Department of Justice Guidance ......................................................................................... 5
Soliciting Public Input......................................................................................................... 6
Changing Agency Culture ................................................................................................... 7
Fees for Service ......................................................................................................................... 9
FOIA and the 112th Congress......................................................................................................... 10
Faster FOIA ............................................................................................................................. 11
Use and Growth of Exemptions............................................................................................... 11
Use of b(3) Exemptions..................................................................................................... 12
FOIA and the Securities and Exchange Commission: A Recent Case Study .................... 12
Involvement of Political Appointees ....................................................................................... 13
Oversight of the Office of Government Information Services ................................................ 14
The Creation of the Office of Government Information Services..................................... 15
OGIS Operations............................................................................................................... 16
Releasing Controversial Information....................................................................................... 16
Releasing Photographs of Osama bin Laden’s Death ....................................................... 17
White House Visitor Logs ................................................................................................. 18
Some Policy Options for Congress................................................................................................ 20
Monitoring the Expansion of b(3) Exemptions ....................................................................... 21
Consideration of FOIA Culture ............................................................................................... 21
Status of White House Visitor Logs ........................................................................................ 22
Releasing Photographs of bin Laden’s Death.......................................................................... 23
An Alternative for FOIA Implementation: Centralizing FOIA Processing ............................. 23
Figures
Figure 1. Costs of FOIA-Related Activities for Federal Departments and Agencies .................... 10
Contacts
Author Contact Information........................................................................................................... 24
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Freedom of Information Act: Background and Policy Options for the 112th Congres
Introduction1
The Freedom of Information Act (FOIA; 5 U.S.C. § 552), often referred to as the embodiment of
“the people’s right to know” about the activities and operations of government, statutorily
established a presumption of public access to information held by federal departments and
agencies. Enacted in 1966 to replace the public information section of the Administrative
Procedure Act (APA; 5 U.S.C. Subchapter II), FOIA allows any person—individual or corporate,
regardless of citizenship—to request and obtain, without explanation or justification, existing,
identifiable, and unpublished agency records on any topic.2
Each new presidential administration has implemented FOIA differently. For example, the
Department of Justice (DOJ) in the George W. Bush Administration cautioned federal agencies to
give “full and deliberate consideration of the institutional, commercial, and personal privacy
interests when making disclosure determinations” and assured them that DOJ would defend
agency decisions in court “unless they lack[ed] a sound legal basis or present[ed] an unwarranted
risk of adverse impact on the ability of other agencies to protect other important records.”3 In
contrast, the Barack Obama Administration requires agencies “to adopt a presumption in favor of
disclosure.”4
There have been several congressional hearings on the implementation of FOIA during the 112th
Congress. Among the FOIA issues that the 112th Congress has addressed, and may continue to
address, are
• whether political appointees were or are improperly vetting FOIA responses at
federal agencies;
• whether to limit, maintain, or expand the number of exemptions to FOIA;
• how to assist agencies in reducing their FOIA backlogs;
• whether to prohibit or require the public release of photographs related to the
killing of Osama bin Laden;
• whether White House visitor logs, portions of which are currently made public
pursuant to Obama Administration policy, include appropriate and necessary
information; and
• whether to drastically shift FOIA implementation by centralizing it in a single
entity, rather than continue its implementation within each individual agency.
1 Parts of this report are adapted from CRS Report RL32780, Freedom of Information Act (FOIA) Amendments: 110th
Congress, by Harold C. Relyea.
2 The Intelligence Authorization for Fiscal Year 2003 amended FOIA to preclude agencies of the intelligence
community from disclosing records in response to FOIA requests made by any foreign government or international
government organization. Intelligence Authorization Act for Fiscal Year 2003, (P.L. 107-306, § 312, codified at 5
U.S.C. § 552(a)(3)(E)).
3 Memorandum from Attorney General John Ashcroft for Heads of Federal Departments and Agencies: Freedom of
Information Act, October 12, 2001, at http://www.doi.gov/foia/foia.pdf.
4 Memorandum from President Barack Obama for Heads of Executive Departments and Agencies: Freedom of
Information Act, January 21, 2009, at http://www.whitehouse.gov/the_press_office/FreedomofInformationAct/.
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This report discusses FOIA’s history, examines its implementation, and discusses policy options
for Congress.
FOIA Background5
An understanding of FOIA’s history is an essential component of understanding the act’s scope
and its utility to Congress. FOIA applies only to the departments and agencies of the federal
executive branch, and serves as the foundation for public oversight and transparency of
government operations.6 FOIA is the primary tool for the public to access federal executive
branch records.
The scope of FOIA has been shaped by both historical and constitutional factors. During the latter
half of the 1950s, when congressional subcommittees examined government information
availability, the practices of federal departments and agencies were a primary focus. The public,
the press, and even some congressional committees and subcommittees were sometimes rebuffed
when seeking information from executive branch entities.7 At the time, the preservation of, and
access to, presidential records had not yet become a great public or congressional concern, so the
records were ultimately not covered by FOIA.8
The accessibility of federal court records and congressional records, likewise, was not a primary
congressional concern. Some Members and academics have asserted that, in the case of Congress,
the secret journal clause or the speech or debate clause of the Constitution9 could be impediments
to the effective application of FOIA to Congress.10 In a 1955 hearing, Representative John E.
5 For a more in-depth legislative history of FOIA, see CRS Report RL32780, Freedom of Information Act (FOIA)
Amendments: 110th Congress, by Harold C. Relyea.
6 At present, FOIA makes the requirements of the statute applicable only to an “agency,” which “means each authority
of the Government of the United States, whether or not it is within or subject to review by another agency, but does not
include - (A) the Congress; or (B) the courts of the United States[.]” (5 U.S.C. § 551)
The committees that developed FOIA—the House Committee on Government Operations (now known as the House
Oversight and Government Reform Committee) and the Senate Committee on the Judiciary—were responding to
perceived secrecy problems in the executive branch. Thus, FOIA was created, approved, and implemented with an
executive branch focus. For more information on the limitations of FOIA applicability see Harold C. Relyea, “Congress
and Freedom of Information: A Retrospective and a Look at the Current Issue,” Government Information Quarterly,
vol. 26 (2009), pp. 437-440.
7 Senator Edward Kennedy, “The Freedom of Information Act Experience,” remarks in the Senate, Congressional
Record, September 22, 1976, p. 31823.
8 For more information on preservation of and access to presidential records and vice presidential records, see CRS
Report R40238, The Presidential Records Act: Current Policy Issues for Congress, by Wendy Ginsberg.
9 U.S. Constitution, art. I, sec. 5, cl. 3, which directs each house of Congress to keep a journal of its proceedings and
publish the same, except such parts as may be judged to require secrecy, has been interpreted to authorize the House
and the Senate to keep certain records secret. See, for example, the National Constitution Center, “Interactive
Constitution,” at http://ratify.constitutioncenter.org/constitution/details_explanation.php?link=010&const=01_art_01.
U.S. Constitution, art. 1, sec. 6, cl. 1, which specifies that Members of Congress, “for any Speech or Debate in either
House ... shall not be questioned in any other Place,” might be regarded as a bar to requests to Members for records
concerning their floor, committee, subcommittee, or legislative activity.
10 See U.S. Congress, Senate Committee on Governmental Affairs, To Eliminate Congressional and Federal Double
Standards, hearing, 96th Cong., 1st sess., September 20, 1979 (Washington: GPO, 1979); Harold C. Relyea, “Public
Access to Congressional Records: Present Policy and Reform Considerations,” Government Information Quarterly,
vol. 2, 1985, pp. 235-256.
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Moss, chairman of the newly created Special Subcommittee on Government Information,
delineated the intended scope of freedom of information legislation, saying,
We are not studying the availability of information from Congress, although many comments
have been made by the press in that field, but we are taking a long, hard look at the amount
of information available from the executive and independent agencies for both the public and
its elected representatives.11
Eleven years after that hearing, FOIA was enacted and was made applicable only to federal,
executive-branch departments and agencies. At the time of its enactment, FOIA was regarded as a
somewhat revolutionary law. Only two other nations—Sweden and Finland—had comparable
disclosure laws, and neither law was as sweeping as the new American model. The law’s premise
reversed the burden of proof that had existed under the public information section of the APA,
which required requesters to establish a justification or a need for the information being sought.12
Under FOIA, in contrast, access is presumed. Agencies must justify denying access to requested
information.
FOIA’s enactment was revolutionary in another regard: no executive branch department or agency
head had supported the legislation, and President Lyndon B. Johnson was reportedly reluctant to
sign the measure.13 Because the law was not enthusiastically received by the executive branch,
supporters maintained that FOIA implementation and use sometimes requires close attention from
congressional overseers.14
FOIA Exemptions
FOIA exempts nine categories of records from the statute’s rule of disclosure.15 The exemptions
are as follows:
1. Information properly classified for national defense or foreign policy purposes as
secret under criteria established by an executive order;
2. Information relating solely to agency internal personnel rules and practices;
3. Data specifically exempted from disclosure by a statute other than FOIA if that
statute
11 U.S. Congress, House Committee on Government Operations, Availability of Information from Federal Departments
and Agencies, hearing, 84th Cong., 1st sess., November 7, 1955 (Washington: GPO, 1956), p. 3.
12 Senator Edward Kennedy, “The Freedom of Information Act Experience,” remarks in the Senate, Congressional
Record, September 22, 1976, p. 31822.
13 See Samuel J. Archibald, “The Freedom of Information Act Revisited,” Public Administration Review, vol. 39, July-
August 1979, pp. 311-318. See also “NOW With Bill Moyers – Politics and Economy: Bill Moyers on the Freedom of
Information Act,” at http://www.pbs.org/now/commentary/moyers4.html. According to Moyers, Johnson “had to be
dragged kicking and screaming to the signing ceremony. He hated the very idea of the Freedom of Information Act;
hated the thought of journalists rummaging in government closets; hated them challenging the official view of reality.”
See also Harold C. Relyea, “Federal Freedom of Information Policy: Highlights of Recent Developments,” Government
Information Quarterly, vol. 26 (January 12, 2009), p. 314.
14 For a detailed history of amendments to FOIA, see CRS Report R40766, Freedom of Information Act (FOIA): Issues
for the 111th Congress, by Wendy Ginsberg.
15 5 U.S.C. § 552(b).
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a. requires that the data be withheld from the public in such a manner as to
leave no discretion on the issue;
b. establishes particular criteria for withholding information or refers to
particular types of matters to be withheld; or
c. specifically cites to this exemption (if the statute is enacted after October 28,
2009, the date of enactment of the OPEN FOIA Act of 2009, P.L. 111-83);
4. Trade secrets and commercial or financial information obtained from a person
that is privileged or confidential;
5. Inter- or intra-agency memoranda or letters that would not be available by law
except to an agency in litigation;
6. Personnel, medical, or similar files the disclosure of which would constitute an
unwarranted invasion of personal privacy;
7. Certain kinds of investigatory records compiled for law enforcement purposes;
8. Certain information relating to the regulation of financial institutions; and
9. Geological and geophysical information and data.
Some of these exemptions, such as the one concerning trade secrets and commercial or financial
information, have been litigated and undergone considerable judicial interpretation.16
A person denied access to requested information, in whole or in part, may make an administrative
appeal to the head of the agency for reconsideration. If an agency appeal is denied, an appeal for
further consideration may be made in federal district court.17 The Office of Government
Information Services (OGIS), which was created within the National Archives and Records
Administration (NARA) by the OPEN Government Act of 2007, and which opened in September
2009, also may provide “mediation services to resolve disputes between persons making requests
under this section and administrative agencies as a non-exclusive alternative to litigation.”18
OGIS services are advisory and non-binding. The creation and role of OGIS will be discussed in
more detail later in this report.
Obama Administration Initiatives
On January 21, 2009, President Obama issued a memorandum on FOIA, stating that the act
“should be administered with a clear presumption: In the face of doubt, openness prevails.”19 The
memorandum stated that under the new administration
16 For sources concerning judicial interpretation of FOIA, see Harry A. Hammitt, Marc Rotenberg, John A. Verdi and
Mark S. Zaid, eds., Litigation Under the Federal Open Government Laws: 2010, fifth edition (Washington: EPIC
Publications and The James Madison Project, 2008); James T. O’Reilly, Federal Information Disclosure, third edition
(Eagan, MN: West Group, first published in 2000, with supplements); U.S. Department of Justice, Freedom of
Information Act Guide, June 2009 edition (Washington, DC: GPO, 2009).
17 5 U.S.C. § 552(4)(B). See U.S. Congress, House Committee on Government Reform, A Citizen’s Guide on Using the
Freedom of Information Act and the Privacy Act of 1974 to Request Government Records, H.Rept. 109-226, 109th
Cong., 1st sess. (Washington: GPO, 2005).
18 5 U.S.C. § 552(h)(3).
19 Barack Obama, U.S. President, Memorandum for the Heads of Executive Departments and Agencies: Freedom of
Information Act, January 21, 2009, at http://www.whitehouse.gov/the_press_office/FreedomofInformationAct/.
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All agencies should adopt a presumption in favor of disclosure, in order to renew their
commitment to the principles embodied in FOIA, and to usher in a new era of open
Government. The presumption of disclosure should be applied to all decisions involving
FOIA.20
The memorandum directed the Attorney General to “issue new guidelines governing the FOIA to
the heads of executive departments and agencies, reaffirming the commitment to accountability
and transparency, and to publish such guidelines in the Federal Register.”21
Department of Justice Guidance
On March 19, 2009, Attorney General Eric Holder issued a memorandum in which he required
“A Presumption of Openness.” The memorandum explicitly rescinded former Attorney General
John Ashcroft’s October 12, 2001, memorandum.22 Holder’s memorandum read as follows:
First, an agency should not withhold information simply because it may do so legally.… An
agency should not withhold records merely because it can demonstrate, as a technical matter,
that the records fall within the scope of a FOIA exemption.
Second, whenever an agency determines that it cannot make full disclosure of a requested
record, it must consider whether it can make partial disclosure. Agencies should always be
mindful that the FOIA requires them to take reasonable steps to segregate and release
nonexempt information. Even if some parts of a record must be withheld, other parts either
may not be covered by a statutory exemption, or may be covered only in a technical sense
unrelated to the actual impact of disclosure.
At the same time, the disclosure obligation under the FOIA is not absolute.…
[T]he Department of Justice will defend a denial of a FOIA request only if (1) the agency
reasonably foresees that disclosure would harm an interest protected by one of the statutory
exemptions, or (2) disclosure is prohibited by law.23
The Obama and Holder memoranda reflected a shift from the policies of the George W. Bush
Administration,24 which required agency and department heads to release documents “only after
full and deliberate consideration of the institutional, commercial, and personal privacy interests
that could be implicated by disclosure of the information.”25
20 Ibid.
21 Ibid. The memorandum did not include a deadline by which such guidelines must be published.
22 This memorandum is described in more detail below.
23 U.S. Department of Justice, Attorney General Eric Holder, Memorandum For the Heads of Executive Departments
and Agencies: The Freedom of Information Act (FOIA), Washington, DC, March 19, 2009, pp. 1-2, at
http://www.usdoj.gov/ag/foia-memo-march2009.pdf.
24 In an editorial, the Los Angeles Times called President Obama’s new policy “a transformation of incalculable
significance.” “Obama Gives New Life to the FOIA,” The Los Angeles Times, January 23, 2009, at
http://www.latimes.com/news/printedition/opinion/la-ed-foia23-2009jan23,0,4722159.story. The Sunshine in
Government Initiative said the memorandum demonstrated that transparency was a “wonderful” priority for the Obama
Administration. The Sunshine in Government Initiative,” January 21, 2009, press release, at
http://www.sunshineingovernment.org/index.php?cat=31.
25 John Ashcroft, U.S. Attorney General, Memorandum for the Heads of all Federal Departments and Agencies: The
Freedom of Information Act, October 12, 2001, at http://www.doi.gov/foia/foia.pdf.
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Soliciting Public Input
The Obama Administration solicited information and ideas from the public on how to make FOIA
a more useful tool. In May 2009, the Administration announced a three-phase “Open Government
Initiative” aimed at collecting ideas from the public on how to make government more
collaborative, transparent, and participatory. From May 21 through June 3, 2009, the Obama
Administration’s Office of Science & Technology Policy (OSTP) entered the first phase of the
directive by tapping the National Academy of Public Administration (NAPA) to host an online
“brainstorming session,”26 seeking public comment on “innovative approaches to policy, specific
project suggestions, government-wide or agency-specific instructions, and any relevant examples
and stories relating to law, policy, technology, culture, or practice.”27 The brainstorming session
garnered 4,205 suggestions and comments, some of which addressed FOIA. One suggestion, for
example, said that agencies should be required to post documents online that are released in
relation to a FOIA request. The suggestion stated that such action could reduce the number of
duplicative requests to which agencies and departments must respond.
From June 3 through June 26, 2009, OSTP began the second phase of its Open Government
Initiative, which focused in greater depth on some of the ideas that emerged in the brainstorming
session forums. On June 10, 2009, Michael Fitzpatrick, associate administrator for the Office of
Information and Regulatory Affairs within the Office of Management and Budget, posted a
question on OSTP’s blog asking for “recommendations … for agencies to pro-actively post
information on their websites to avoid a FOIA request from even occurring” and
“recommendations to make FOIA reading rooms more useful and information more easily
searchable, as they are meant to be a mechanism for information dissemination to the public.”28
The request prompted 58 responses, including one response that suggested documents released as
part of a FOIA request not only be published online, but also be text searchable.29
From June 22 through July 6, 2009, OSTP conducted the third phase of the initiative: drafting.
Using an online program, members of the public created online documents that included policy
recommendations. Participants critiqued, endorsed, and rated the policy recommendations.30
OSTP said that the “recommendations will inform the drafting of an ‘Open Government
Directive’ to Executive branch agencies.”31 Among the policy recommendations posted was a
suggestion to “rebuild technical capacity for information dissemination in the agencies (and
government-wide)” so historical agency information can be stored electronically and accessed
more efficiently when it is requested by the public.32
26 National Academy of Public Administration (NAPA), Open Government Dialogue, May 21, 2009, at
http://opengov.ideascale.com/akira/panel.do?id=4049. When the dialogue began, users could offer ideas without
signing up for a log-on identity. On May 23, 2009, NAPA changed that policy and required all participants to log into
the website before their comments could be posted.
27 Ibid.
28 Michael Fitzpatrick, Associate Administrator for OIRA, Transparency: Access to Information, Executive Office of
the President, Office of Science & Technology Policy, June 10, 2009, at http://blog.ostp.gov/2009/06/10/transparency-
access-to-information/.
29 Transparency: Access to Information, Executive Office of the President, Office of Science & Technology Policy,
June 10, 2009, at http://blog.ostp.gov/2009/06/10/transparency-access-to-information/.
30 For more information on the technology used to conduct this phase, see http://www.vimeo.com/2674991.
31 U.S. Office of Science and Technology Policy, Executive Office of the President, Open Government Directive,
Phase 3: Drafting, 2009.
32 MixedInk, “Institutionalizing Transparency in Government,” at http://www.mixedink.com/#/Opengov/
(continued...)
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On March 16, 2010, then-White House Chief of Staff Rahm Emanuel and then-Counsel to the
President Bob Bauer released an additional memorandum stating their appreciation for current
agency efforts to implement the FOIA in accordance with the Administration’s directives, but also
said “more work remains to be done.” 33 The memorandum then instructed department and agency
heads to “update all FOIA guidance and training materials to include the principles articulated in
the President’s [January 21, 2009] Memorandum.”34 It then asked department and agency heads
to “assess whether [they] are devoting adequate resources to responding to FOIA requests
promptly and cooperatively, consistent with the requirements for addressing this Presidential
priority.”35
Changing Agency Culture
According to FOIA.gov, a Department of Justice (DOJ) website that allows users to analyze data
on FOIA requests and processing, federal agencies received 597,415 FOIA requests in FY2010,
16.1% more requests than the 514,541 made in FY2009.36 In FY2008, agencies received 561,016
requests—9.0% more than in FY2009.37 In FY2010, federal agencies answered or claimed
exemption from answering 407,283 requests.38 All agencies end each fiscal year with a backlog of
FOIA requests. DOJ defines a backlog as “The number of requests or administrative appeals that
are pending beyond the statutory time period for a response.”39
On December 8, 2009, President Obama released his Open Government Directive—a
memorandum describing how agencies were to implement the open government and transparency
values he discussed in earlier Administration memoranda.40 The directive restated the
Administration’s commitment to the “principle that openness is the Federal Government’s default
position for FOIA issues.”41 The directive also encouraged agencies to release data and
information “online in an open format that can be retrieved, downloaded, indexed, and searched
(...continued)
Institutionalizingtransparency.
33 The White House, Rahm Emanuel and Bob Bauer, Memorandum for Agency and Department Heads: Freedom of
Information Act, March 16, 2010, at http://www.whitehouse.gov/sites/default/files/rss_viewer/foia_memo_3-16-10.pdf.
34 Ibid.
35 Ibid.
36 U.S. Department of Justice, “FOIA.gov,” at http://www.foia.gov/index.html. FOIA.gov uses data from agencies’
statutorily required annual FOIA reports. According to DOJ, “[o]ccasionally, agencies will have to make an alteration
to a value from a prior year’s report, and this may result in a discrepancy in a particular field from one year to the next.
Additionally, please note that FOIA.Gov contains data from all agencies for Fiscal Year 2010, and contains data from
many, but not all agencies for Fiscal Years 2008 and 2009.” Despite these data limitations, CRS used FOIA.gov for
consistency and timeliness. FOIA.gov does not include data on FOIA implementation costs. CRS, therefore, relied on
Department of Justice annual reports for that information.
37 Ibid. The number of FOIA requests made prior to this time period is difficult to quantify because DOJ data on FOIA
requests was collected using a different standard than what is currently used. DOJ’s new reporting requirements limit
the Annual FOIA Report to information access requests that involve only use of the FOIA. Previously, requests
involving the Privacy Act and other records-related laws were included in the tally.
38 Ibid.
39 U.S. Department of Justice, “FOIA.gov: Glossary,” at http://www.foia.gov/glossary.html.
40 Executive Office of the President, Office of Management and Budget, Memorandum for the Heads of Executive
Departments and Agencies: Open Government Directive, Washington, DC, December 8, 2009, at
http://www.whitehouse.gov/omb/assets/memoranda_2010/m10-06.pdf.
41 Ibid., p. 1.
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by commonly used applications.”42 The information, according to the directive, was to be placed
online even prior to a FOIA request, to preempt the need for such requests.43 Pursuant to the
memorandum, agencies were required to put their annual FOIA report on the Open Government
website in an accessible format.
The Obama Administration directive requires agencies with a backlog of FOIA requests to reduce
the number of outstanding requests by 10% per year,44 but does not state how the Administration
will address agencies that do not comply with its requirements. Moreover, a reduction in backlog
does not necessarily mean an agency is more efficiently administering FOIA. For example, an
agency could be eliminating a backlog by simply denying complex requests that could otherwise
be released in part. Denying requests may take less time than negotiating a partial release.
Additionally, some agencies may have reduced their backlog simply because they received fewer
requests and not because they applied FOIA more effectively.
According to FOIA.gov, executive branch agencies have significantly reduced their backlogged
requests, although the largest reductions occurred before President Obama issued the December
2009 “Open Government” directive. The number of backlogged requests at executive branch
agencies dropped from 130,419 at the end of FY2008 to 75,594 at the end of FY2009 (a 42%
reduction), and to 69,526 at the end of FY2010 (another 8% decline).45 The Department of
Homeland Security (DHS) alone reduced its backlogs from 74,879 at the end of FY2008 to
18,919 at the end of FY2009 (a 74.7% reduction), and to 11,383 at the end of FY2010 (another
39.8% decline).46 Therefore, variations in other departments and agencies notwithstanding, DHS
alone accounted for all of the govermentwide reductions in FOIA backlogs during this period.
Backlogs varied both between and within departments and agencies. For example, within DHS,
the U.S. Citizenship and Immigration Service (USCIS) reported that it reduced its FOIA backlog
by nearly 50%, from 16,081 backlogged requests in FY2009 to 8,209 requests in FY2010.
According to FOIA.gov, USCIS received 71,429 requests in FY2009 and 91,503 requests in
FY2010.47 The Customs and Border Patrol, which is also within DHS, increased its backlog by
583%—from 88 requests backlogged in FY2009 to 601 backlogged requests in FY2010. USCIS
received 14,804 requests in FY2009 and 18,948 in FY2010.
The House Committee on Oversight and Government Reform and the Senate Committee on
Homeland Security and Governmental Affairs examined whether executive branch agencies had
adopted the Obama Administration’s “presumption in favor of disclosure.”48 Some agencies
42 Ibid.
43 Publishing agency records online is one suggestion that was repeated by several members of the public who
participated in the Open Government Initiative’s online collaboration. On June 19, 2009, for example, a user
identifying himself as Adam Rappaport from the Citizens for Responsibility and Ethics in Washington, wrote a blog
comment suggesting that “agencies could pro-actively disclose information and records on their websites that would
help avoid a FOIA request from even occurring.” See Office of Science and Technology Policy, “OSTP Blog,” at
http://blog.ostp.gov/2009/06/10/transparency-access-to-information/comment-page-2/#comments.
44 According to FOIA.gov, a backlogged request is different from a pending request, which is a “FOIA request or
administrative appeal for which an agency has not yet taken final action in all respects.” See U.S. Department of
Justice, “FOIA.gov: Glossary,” at http://www.foia.gov/glossary.html#.
45 U.S. Department of Justice, “FOIA.gov,” at http://www.foia.gov/index.html.
46 Ibid.
47 U.S. Department of Justice, “FOIA.gov: Glossary,” at http://www.foia.gov/glossary.html#.
48 U.S. Congress, House Committee on Oversight and Government Reform, The Freedom of Information Act: Crowd-
(continued...)
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appeared to have embraced this presumption more than others.49 As noted previously, certain
agencies reduced their FOIA backlogs, while backlogs at other agencies increased. Among the
actions some agencies took in 2010 to influence their internal culture, were distributing the
President’s FOIA Memorandum and the Attorney General’s FOIA Guidelines throughout their
agencies, creating agency-specific FOIA guidance, requiring employees to attend government-
wide FOIA training, and providing agency-specific FOIA training.50
Fees for Service
FOIA permits agencies responding to information requests to charge fees for certain
administrative activities, such as records searching, reviewing, and duplicating. The amount of
the fee depends on the type of requester—specifically, whether the request is made by a
commercial user, the media, the general public, or an educational or noncommercial scientific
institution whose purpose is scholarly or scientific research. Moreover, certain requesters may be
exempted from FOIA-related fees.51 For example, requested records may be furnished by an
agency without any charge or at a reduced cost, pursuant to FOIA, “if disclosure of the
information is in the public interest because it is likely to contribute significantly to public
understanding of the operations or activities of the government and is not primarily in the
commercial interest of the requester.”52 Requesters seeking a fee exemption must explicitly
request it, and the agency then determines whether they qualify.
As shown in Figure 1, costs to administer FOIA dropped between FY2006 and FY2008. Costs,
however, rose from FY2008 to FY2009, but not to levels as high as those in FY2006. In FY2009,
the latest full year for which cost information is available, the total cost of all FOIA-related
activities for all federal departments and agencies, as reported in their annual FOIA reports, was
an estimated $382,244,225.53 The data reflect “an increase of nearly $44 million from FY2008.”54
According to OIG, agencies reported “[a]pproximately $28 million of the FY2009 costs were …
spent on litigation-related activities. Of total FY2009 costs, $9,067,078, or approximately 3%,
was reported to have been recouped by the government through the collection of FOIA fees.”55 It
is unclear why FOIA costs went down from FY2006 through FY2008. One possible reason for
(...continued)
Sourcing Government Oversight, 112th Cong., 1st sess., March 17, 2011, at http://oversight.house.gov/index.php?
option=com_content&view=article&id=1204%3A3-17-11-qthe-freedom-of-information-act-crowd-sourcing-
government-oversightq&catid=12&Itemid=20. U.S. Congress, Senate Committee on the Judiciary, The Freedom of
Information Act: Ensuring Transparency and Accountability in the Digital Age, 112th Cong., 1st sess., March 15, 2011,
at http://judiciary.senate.gov/hearings/hearing.cfm?id=5033.
49 For some examples, see U.S. Department of Justice, “2010-2011 Agency FOIA Success Stories: Creating a Culture
of Transparency,” at http://www.justice.gov/oip/docs/agency-success-stories2011.pdf.
50 U.S. Department of Justice, Office of Information Policy, “FOIA Post: Summary of Agency Chief FOIA Officer
Reports with Finding and OIP Guidance for Improvement,” July 29, 2010, at http://www.justice.gov/oip/foiapost/
2010foiapost23.htm.
51 Ibid.
52 5 U.S.C. § 552(a)(4)(A)(iii).
53 U.S. Department of Justice, FOIA Post, “Summary of Annual FOIA Reports for FY2009,” at http://www.justice.gov/
oip/foiapost/2010foiapost18.htm. FOIA.gov does not include data on FOIA processing costs.
54 U.S. Department of Justice, FOIA Post, “Summary of Annual FOIA Reports for FY2008,” at http://www.justice.gov/
oip/foiapost/2009foiapost16.htm.
55 U.S. Department of Justice, FOIA Post, “Summary of Annual FOIA Reports for FY2009,” at http://www.justice.gov/
oip/foiapost/2010foiapost18.htm.
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this cost reduction could be receipt of fewer FOIA requests, but, as noted earlier, it is not possible
to determine the number of FOIA-related requests received by agencies prior to FY2008.56 Costs
could have also been affected by the expenses of pending FOIA-related lawsuits or by changes in
federal employee costs.57
Figure 1. Costs of FOIA-Related Activities for Federal Departments and Agencies
FY2006 to FY2009
$410
$400
$390
$380
$370
s
$360
n
$350
llio
Mi
$340
$330
$320
$310
$300
FY2006
FY2007
FY2008
FY2009
Source: U.S. Department of Justice, Office of Information Privacy, “FOIA Post,” for 2007 through 2009.
Information is available online at http://www.justice.gov/oip/foiapost/2007foiapost11.htm; http://www.justice.gov/
oip/foiapost/2008foiapost23.htm; http://www.justice.gov/oip/foiapost/2009foiapost16.htm; and
http://www.justice.gov/oip/foiapost/2010foiapost18.htm.
Notes: Data were created by the U.S. Department of Justice using the annual FOIA reports required by 5
U.S.C. § 552(e).
FOIA and the 112th Congress
The 112th Congress has demonstrated an interest in the implementation of FOIA. Legislation to
create an advisory commission to examine and improve the FOIA process has been introduced in
each chamber. The House has held two hearings on FOIA and the Senate has held one. In
addition, FOIA-related issues have been mentioned at hearings that focused policies or actions
that appeared outside the scope of FOIA. Among the issues discussed at congressional hearings
were, including the increasing number and use of statutes that exempt certain records from FOIA,
56 See footnote 37. The number of FOIA requests made prior to this time period is difficult to quantify because DOJ
data on FOIA requests was collected using a different standard than what is currently used.
57 In May 2008, the Department of Justice released a memorandum entitled “2008 Guidelines for Agency Preparation
of Annual FOIA Reports” that clarified and unified how agencies are to calculate the number of FOIA personnel it
employs prior to FY2009; therefore, it is not possible to compare the number of FOIA personnel across federal
agencies or aggregate the total number of federal employees who work on FOIA implementation over time. See U.S.
Department of Justice, 2008 Guidelines for Agency Preparation of Annual FOIA Reports, Washington, DC, May 2008,
p. 26, http://www.justice.gov/oip/foiapost/guidance-annualreport-052008.pdf.
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the involvement of political appointees in FOIA request processing, the operations and use of the
Office of Government Information Services (OGIS), the change or lack of change in agency
implementation of new FOIA guidelines, and the release of sensitive or confidential information.
Faster FOIA
On March 17, 2011, Senator Patrick Leahy introduced S. 627, the Faster FOIA Act of 2011. The
legislation would establish a temporary, 12-member advisory commission to examine FOIA
request processing delays, the application of processing fees, and the clarity and proper use of
exemptions. The commission would report its findings and recommendations to improve FOIA
implementation to Congress and the President. Pursuant to S. 627, the chairman and ranking
member of the Senate Oversight and Governmental Reform Committee and the chairman and
ranking member of the House Oversight and Government Reform Committee would each appoint
two members of the commission. The remaining four positions would be single appointments by
each of the following persons: the Attorney General, the Director of the Office of Management
and Budget, the Archivist of the United States, and the Comptroller General of the United States.
At least one of the two commission members appointed by each of the chairmen and ranking
members would have to possess experience “as a FOIA requester, or in the fields of library
science, information management, or public access to Government information.”58 S. 627
incorporates ideas from similar pieces of legislation that were introduced in each of last three
Congresses.59 The Senate Committee on the Judiciary reported S. 627 favorably with
amendments on April 8, 2011.60 On May 26, 2011, the Senate passed S. 627 under unanimous
consent.61 In the House, S. 627 has been referred to the Committee on Oversight and Government
Reform.
Use and Growth of Exemptions
The House Oversight and Government Reform Committee and the Senate Homeland Security and
Governmental Affairs Committee held hearings related to oversight of FOIA during Sunshine
Week (March 13-19, 2011),62 an annual initiative to examine current practices and discuss new
options to make government more accountable and transparent.63 At both hearings, committee
members discussed the difficulties of keeping track of the increasing creation and use of so-called
58 S. 627. Section (c)(2).
59 S. 3111 and H.R. 5087 in the 111th Congress; H.R. 541 in the 110th Congress; and S. 589 and H.R. 1620 in the 109th
Congress.
60 On April 14, 2011, Representative Brad Sherman introduced a companion bill, H.R. 1564, in the House of
Representatives, and the bill was referred to the House Committee on Oversight and Government Reform.
61 Senator Amy Klobuchar, “Faster FOIA Act of 2011,” bill consideration in the Senate, Congressional Record, May
26, 2011, p. S3458.
62 Sunshine Week 2011 was scheduled to coincide with American Founding Father James Madison’s birthday (March
16th). For more information on Sunshine Week, see Sunshine Week: Your Right to Know, “Sunshine Week 2011—
March 13-19,” at http://www.sunshineweek.org/Home.aspx.
63 U.S. Congress, House Committee on Oversight and Government Reform, The Freedom of Information Act: Crowd-
Sourcing Government Oversight, 112th Cong., 1st sess., March 17, 2011, at http://oversight.house.gov/index.php?
option=com_content&view=article&id=1204%3A3-17-11-qthe-freedom-of-information-act-crowd-sourcing-
government-oversightq&catid=12&Itemid=20. U.S. Congress, Senate Committee on the Judiciary, The Freedom of
Information Act: Ensuring Transparency and Accountability in the Digital Age, 112th Cong., 1st sess., March 15, 2011,
at http://judiciary.senate.gov/hearings/hearing.cfm?id=5033.
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“b(3)” FOIA exemptions. These exemptions are created pursuant to FOIA’s third exemption,
which appears in 5 U.S.C. § 552(b)(3). The exemption protects from disclosure any information
that is specifically withheld from public release by a statute other than FOIA. Since the October
28, 2009, enactment of the OPEN FOIA Act of 2009 (P.L. 111-83), any statute that exempts
material from public release must specifically cite FOIA to qualify for exemption. Despite this
reference requirement, it is difficult to keep track of existing and newly created b(3) FOIA
exemptions or to systematically examine such exemptions prior to enactment. One example of
such an exemption to FOIA was written into the Dodd-Frank Wall Street Reform and Consumer
Protection Act, and will be discussed as a case study below.
Use of b(3) Exemptions64
ProPublica65 reported that executive branch agencies cited more than 240 different statutory b(3)
exemptions to deny FOIA requests over the past decade.66 For example, the Consumer Product
Safety Commission (CPSC) reportedly denied a total of 810 FOIA requests between 2008 and
2009. Within those 810 requests, the CPSC reportedly claimed 1,238 b(3) exemptions—
sometimes responding to a single request for information with multiple b(3) exemption claims.
The exemptions reportedly included claims of identity protection of certain brand-name consumer
products under particular circumstances, protection of trade secrets, and protection of the identity
of injured persons. The Central Intelligence Agency reportedly denied 2,437 FOIA requests and
claimed 2,316 b(3) exemptions between 2008 and 2009. All of the CIA exemptions were pursuant
to 50 U.S.C. 403(g), which exempts certain information for “security of the foreign intelligence
activities of the United States.” According to ProPublica, the Department of Veterans Affairs used
b(3) exemptions the most between 2008 and 2009, with 8,331 b(3) claims.
FOIA and the Securities and Exchange Commission: A Recent Case Study
While the creation and use of b(3) exemptions may be a policy concern for the 112th Congress,
one recent example of the enactment and subsequent elimination of a b(3) exemption occurred in
the 111th Congress.
On July 21, 2010, Congress enacted the Dodd-Frank Wall Street Reform and Consumer
Protection Act (P.L. 111-203), which, among other things, granted the Securities and Exchange
Commission (SEC) an exemption from FOIA for certain information received from entities it
regulates and for information used for other regulatory and oversight activities. The SEC’s FOIA
exemption—which was in Section 929I of the act, “Protecting Confidentiality of Materials
Submitted to the Commission”—prompted controversy over its potential application, with certain
groups arguing that the exemption would allow the SEC to withhold too much information from
public release.67 Many questions were raised regarding the scope and application of this
64 For more information on b(3) exemptions, see CRS Report R41406, The Freedom of Information Act and
Nondisclosure Provisions in Other Federal Laws , by Gina Stevens.
65 According to its website, ProPublica is “an independent, non-profit newsroom that produces investigative journalism
in the public interest.” ProPublica, “About Us,” at http://www.propublica.org/about/.
66 ProPublica, “FOIA Eyes Only: How Buried Statutes are Keeping Information Secret,” March 14, 2011, at
http://www.propublica.org/article/foia-exemptions-sunshine-law. The Sunshine in Government Initiative used agency
annual FOIA reports to create the dataset of b(3) exemptions. These data, therefore, include only b(3) exemptions that
were used to deny requests, and may not represent the total number of b(3) exemptions that exist.
67 Dunstan Prial, “SEC Chief Schapiro Defends New FOIA Provision to Congress,” Fox Business,
(continued...)
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exemption. Some asserted that Section 929I inappropriately exempted the SEC entirely from
FOIA. The SEC, however, reportedly contended that the provision was necessary to obtain
confidential or sensitive business information from entities now subject to SEC regulation—
hedge funds, private equity funds, and venture capital funds. 68
On September 16, 2010, the House Financial Services Committee held a hearing on the Section
929I exemption, at which SEC Chairman Mary L. Schapiro appeared. She testified that some
entities had previously resisted sharing potentially sensitive information with the commission in
light of concerns that FOIA and litigation could compromise the SEC’s ability to protect certain
information from disclosure.69
On August 5, 2010, Senator Patrick Leahy, chairman of the Committee on the Judiciary,
introduced S. 3717, which sought to strike Section 929I from the Dodd-Frank Act.70 The Senate
passed S. 3717 by unanimous consent on September 21, 2010.71 The House passed S. 3717 on
September 23, 2010. On October 5, 2010, the bill was signed into law (P.L. 111-257).
In his opening statement at the Senate Judiciary Committee’s March 15, 2011, hearing on FOIA,
Chairman Leahy referred to b(3) exemptions within P.L. 111-257:
Implementation of FOIA continues to be hampered by the increasing use of exemptions -
especially under section (b)(3) of FOIA.
Last year, Senators Grassley, Cornyn and I worked together on a bipartisan basis to repeal an
overly-broad FOIA b(3) exemptions (sic) in the historic Wall Street reform bill, so that the
American public will have access to important information about the state of our financial
system.72
Involvement of Political Appointees
On March 30, 2011, the House Committee Oversight and Government Reform held a hearing to
investigate the Department of Homeland Security’s (DHS) implementation of FOIA and to
examine charges of improper involvement of political appointees in the disposition of FOIA
requests.73 In Chairman Darrell Issa’s “preview statement” for the hearing, he said that political
(...continued)
http://www.foxbusiness.com/markets/2010/09/16/sec-chief-schapiro-defends-new-fioa-provision-congress/; and Zach
Goldfarb, “Does New Financial Law Block FOIA Requests at SEC?” Washington Post, at
http://voices.washingtonpost.com/market-cop/2010/07/does_new_financial_law_block_f.html.
68 Elizabeth MacDonald, “What SEC Sources Say About Fin Reg and FOIA,” Fox Business, July 30, 2010, at
http://emac.blogs.foxbusiness.com/2010/07/30/what-sec-sources-say-about-finreg-and-foia.
69 U.S. Congress, House Committee on Financial Services, Legislative Proposals to Address Concerns Over the SEC’s
New Confidentiality Provision, 111th Cong., 2nd sess., September 16, 2010, at http://financialservices.house.gov/
Hearings/hearingDetails.aspx?NewsID=1353.
70 Senator Patrick Leahy, “Statements on Introduced Bills and Joint Resolutions,” introductory remarks in the Senate,
Congressional Record, August 5, 2010, pp. S6889-S6890.
71 Senator Edward E. (Ted) Kaufman, “Freedom of Information Act Amendments,” request for consideration of a bill,
Congressional Record, September 21, 2010, pp. S7298-S7299.
72 U.S. Congress, Senate Committee on the Judiciary, The Freedom of Information Act: Ensuring Transparency and
Accountability in the Digital Age, 112th Cong., 1st sess., March 15, 2011, at http://judiciary.senate.gov/hearings/
hearing.cfm?id=5033.
73 U.S. Congress, House Committee on Oversight and Government Reform, Why Isn’t the Department of Homeland
(continued...)
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staff at DHS had “corrupted the agency’s FOIA compliance procedures, exerted unlawful political
pressure on FOIA compliance officers, and undermined the federal government’s accountability
to the American people.”74 In his opening statement, Chairman Issa said DHS political appointees
“delayed responses” and “withheld documents.”75
At the hearing, Mary Ellen Callahan, chief FOIA officer and chief Privacy officer at DHS, said
that nearly one half of one percent of the 138,000 FOIA requests to DHS in FY2010 qualified as
“significant,”76 and, therefore, warranted notification of senior management. Ms. Callahan
continued:
In these relatively few cases, senior Department management was provided an opportunity to
become aware of the contents of a release prior to its issuance to the public, primarily to
enable them to respond to inquiries from members of Congress and their staffs, the media,
and the public and to engage the public on the merits of the underlying policy issues. I am
not aware of a single case in which anyone other than a career FOIA professional or an
attorney in the Office of the General Counsel made a substantive change to a proposed FOIA
release. Further, to my knowledge, no information deemed releasable by the FOIA Office or
the Office of the General Counsel has at any point been withheld and responsive documents
have neither been abridged nor edited.77
It may not be uncommon for a political appointee to be notified of the status of a FOIA request if
denial of the request is likely to prompt litigation from the requester. Investigation findings
released by the Office of Inspector General at the Environmental Protection Agency (EPA) on
January 10, 2011, for example, found that,
Generally, political appointees are not involved in deciding FOIA requests, unless there is
denial of information. We found exceptions, but political appointees were usually involved
only to sign denials or partial denials. FOIA coordinators provided regular status reports on
the processing of FOIA requests to managers at various levels within the office.78
Oversight of the Office of Government Information Services
In addition to examining other substantive issues related to FOIA implementation, the 112th
Congress may continue oversight of OGIS, an entity created in the OPEN Government Act of
2007. OGIS is required by 5 U.S.C. §552 to
(...continued)
Security Meeting the President’s Standard on FOIA, 112th Cong., 1st sess., March 30, 2011, http://oversight.house.gov/
index.php?option=com_content&view=article&id=1223%3A3-31-11-qwhy-isnt-the-department-of-homeland-security-
meeting-the-presidents-standard-on-foiaq&catid=12&Itemid=20. The first hearing on FOIA, The Freedom of
Information Act: Crowd-Sourcing Government Oversight, was discussed earlier in this report.
74 Ibid.
75 Ibid.
76 Ibid. According to Ms. Callahan, “significant” requests “included requests involving significant ongoing litigation,
requests relating to sensitive topics, requests made by the media, and requests relating to Presidential or agency
priorities.”
77 Ibid.
78 U.S. Environmental Protection Agency, Congressionally Requested Inquiry Into EPA’s Handling of Freedom of
Information Act Requests, Rept. No. 11-P-0063, Washington, DC, January 10, 2011, Summary, at http://www.epa.gov/
oig/reports/2011/20110110-11-P-0063.pdf.
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• mediate disputes between FOIA requesters and federal agencies;
• review the policies and procedures of administrative agencies under FOIA;
• review agency compliance with FOIA; and
• recommend policy changes to the Congress and President to improve the
administration of FOIA.79
The Creation of the Office of Government Information Services
Congress, at times, has encountered executive-branch resistance to FOIA amendments. OGIS’s
inception provides one such example. The OPEN Government Act of 2007 (P.L. 110-175) created
OGIS to review FOIA policies and agency compliance as well as to recommend ways to improve
FOIA. Pursuant to the OPEN Government Act, the office was to be placed within the National
Archives and Records Administration (NARA). President George W. Bush’s FY2009 budget
recommendations, however, attempted to remove OGIS from NARA and place its responsibilities
within the Department of Justice.80
Some Members and open government organizations were concerned that the Bush
Administration’s desired arrangement could give DOJ control over the OGIS, perhaps to the point
of eradicating it. DOJ, could, for example, allocate OGIS funds to its own Office of Information
and Privacy, which oversees FOIA compliance by federal agencies.81 In creating OGIS,
legislators had consciously placed it outside of the Department of Justice, which represents
agencies sued by FOIA requesters.
The 111th Congress responded to the Administration’s recommendation by appropriating $1
million for OGIS and explicitly requiring its establishment within NARA.82 OGIS began
operations within NARA in September 2009.83 Subsequent appropriations for OGIS have come
from NARA’s general appropriation and have not appeared as a separate line-item.
79 OGIS would review agency policies and procedures, audit agency performance, recommend policy changes, and
mediate disputes between FOIA requesters and agencies with a view to alleviating the need for litigation, while not
limiting the ability of a requester to litigate FOIA claims.
80 U.S. Office of Management and Budget, Budget of the United States Government, Fiscal Year 2009—Appendix
(Washington: GPO, 2008), p. 239. Sec. 519 of the budget recommendations read as follows:
The Department of Justice shall carry out the responsibilities of the office established in 5 U.S.C.
552(h), from amounts made available in the Department of Justice appropriation for “General
Administration Salaries and Expenses.” In addition, subsection (h) of section 552 of title 5, United
States Code, is hereby repealed, and subsections (i) through (l) are redesignated as (h) through (k).
81 See U.S. Senator Patrick Leahy, “Leahy: FOIA Ombudsman Belongs At Archives, Not DOJ,” press release,
February 14, 2008, http://leahy.senate.gov/press/200802/021408a.html; and Citizen Media Law Project, “Bush Refuses
to Fund New FOIA Ombudsman, Takes the Heart Out of Open Government Reform Law,” weblog, February 7, 2008,
at http://www.citmedialaw.org/blog/2008/bush-refuses-fund-new-foia-ombudsman-takes-heart-out-open-government-
reform-law.
82 P.L. 111-8. See also U.S. Congress, House Committee on Appropriations, Explanatory Statement to Accompany
Omnibus Appropriations Act, 2009, committee print, 111th Cong., 1st sess., p. 988, at http://frwebgate.access.gpo.gov/
cgi-bin/getdoc.cgi?dbname=111_cong_house_committee_prints&docid=f:47494d.pdf.
83 For more information on OGIS appropriations, see CRS Report R41340, Financial Services and General
Government (FSGG): FY2011 Appropriations, coordinated by Garrett Hatch.
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OGIS Operations
According to OGIS, it received 565 cases related to information access for review between its
September 2009 inception and January 31, 2011. Nearly 80 cases were pending as of June 3,
2011.84 According to OGIS, most of its caseload involved disputes over the length of time a
request was taking, an outright denial of a request, or the fees charged to complete a request.
About a quarter of its cases addressed FOIA request denials. OGIS could not resolve 30 FOIA
disputes in its caseload to the satisfaction of the complainant. Among the disputes it was unable to
resolve was a case in which OGIS recommended that an agency provide the information, which
the agency did, and the requester remained unsatisfied. In another case, a federal agency agreed to
OGIS remediation, but the requester’s attorney advised against such action. OGIS has assisted
FOIA requesters in 43 states, the District of Columbia, Puerto Rico, and foreign countries. Most
of OGIS’s cases came from four cabinet agencies.
• The Department of Justice (34%)
• The Department of Veterans Affairs (9%)
• The Department of Homeland Security (7%)
• The Department of Defense (7%)85
In 2010, OGIS worked with the Department of Justice’s Office of Information Policy to develop
and present three full-day training sessions that applied alternative dispute resolution principles to
conflicts involving FOIA requests. OGIS plans to offer four training sessions in 2011.
OGIS is working to design “a more robust framework for reviewing FOIA policies, procedures,
and compliance.”86 The office also is assessing its own effectiveness and examining possible
collaborative work with willing agencies to review FOIA operations at the agencies themselves.
Releasing Controversial Information
Congress has explicitly exempted certain controversial materials from public release under FOIA.
For example, in the 111th Congress, the Department of Homeland Security Appropriations Act,
2010 (P.L. 111-83) exempted photographs of the treatment of certain individuals from public
disclosure pursuant to FOIA.
Specifically, section 565 of P.L. 111-83 authorizes the Secretary of the Department of Defense to
withhold from disclosure any photographic record that “would endanger citizens of the United
States, members of the United States Armed Forces, or employees of the United States
Government deployed outside the United States.”87 The law requires the photographs to have
been taken between September 11, 2001, and January 22, 2009, and be “related to the treatment
84 Excel spreadsheets of OGIS’s caseload are available on the agency’s website, National Archives: Office of
Government Information Services (OGIS), at http://www.archives.gov/ogis/.
85 A large number of cases referred to OGIS does not, necessarily, reflect inappropriate application of FOIA’s
requirements. Agencies with the largest number of cases taken up by OGIS include information on OGIS and its
operations in their FOIA response letters. Moreover, these agencies are among those with the highest volume of FOIA
requests.
86 Information provided electronically to the author from OGIS on July 12, 2011.
87 P.L. 111-83; 125 Stat. 2184-2185.
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of individuals engaged, captured, or detained after September 11, 2001, by the Armed Forces of
the United States in operations outside of the United States.” Photographs are exempted from
public release for three years, and it appears that the Secretary can extend that exemption in three
year increments in perpetuity.88
Releasing Photographs of Osama bin Laden’s Death
The killing of Osama bin Laden in Pakistan has raised new questions about publicly releasing
sensitive, but important documentary materials. For example, it is unclear what authority
President Obama is employing to protect photographs of bin Laden’s death from public release. 89
The photographs of bin Laden’s death would have been taken after the dates specified for
exemption from public release in P.L. 111-83, described above. The photographs, therefore, do
not appear to be eligible for that protection.
As noted earlier in this report, FOIA covers all executive branch agencies. The Navy SEAL unit
that killed bin Laden did so as part of an operation by Central Intelligence Agency (CIA) and the
Department of Defense (DOD)—both of which are covered by FOIA. It is unclear, however,
whether the Executive Office of the President (parts of which are exempt from FOIA), the CIA,
or the DOD have legal custody of the photographs of bin Laden’s death. The Administration has
not clarified which entity or entities have jurisdiction over the photographs.
The Associated Press (AP) reported that it filed a FOIA request with DOD for the photographs on
May 2, 2011.90 The AP reported that it asked for expedited processing of the request.91 On May
18, 2011, AP reported that DOD rejected its request for expedited processing. DOD’s formal
rejection of the expedited processing could constitute acknowledgement that the department
intends to process AP’s FOIA request.92 Pursuant to FOIA, the federal government has up to 20
88 P.L. 111-83, Section 565(d)(3).
89 Craig Whitlock and William Wan, “U.S. cautious on releasing proof of bin Laden’s death,” Washington Post, May
2, 2011, at http://www.washingtonpost.com/national/bin-ladens-secret-sea-burial-adds-to-the-mystery-of-his-life/2011/
05/02/AF4uEPZF_story.html?hpid=z3.
90 Pauline Jelinek, “Only 1 killed in bin Laden raid was armed,” Associated Press (as published by Forbes), May 5,
2011, at http://www.forbes.com/feeds/ap/2011/05/05/general-us-bin-laden_8451710.html.
91 According to DOJ, FOIA requests can be expedited if they qualify under any one of the following four
circumstances:
•
if the lack of expedited treatment could reasonably be expected to pose a threat to someone’s life or physical
safety;
•
if an individual will suffer the loss of substantial due process rights, expedition is appropriate. In this regard,
a request will not normally be expedited merely because the requester is facing a court deadline in a judicial
proceeding;
•
if the request is made by a person primarily engaged in disseminating information to the public and the
information is urgently needed to inform the public concerning some actual or alleged federal government
activity; or
•
if the subject of the request is of widespread and exceptional media interest and the information sought
involves possible questions about the government’s integrity which affect public confidence. Decisions to
expedite under this fourth standard are made by DOJ’s Director of Public Affairs.
U.S. Department of Justice, “Freedom of Information Act Reference Guide,” at http://www.justice.gov/oip/
referenceguide.htm.
92 Processing the request does not imply that AP will receive what they requested. Processing can include notifying AP
that DOD does not have legal custody of the photographs or that DOD is claiming a FOIA exemption and intends not
to release the photographs. Moreover, AP reported that it requested additional records related to the killing of bin
(continued...)
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days from the date it received the request to determine whether it will respond. AP has not
reported whether DOD met that deadline. If the executive branch agencies determine they will
not release the photographs by claiming one of FOIA’s nine exemptions, the AP may choose to
accept those determinations, appeal the determinations administratively, or challenge the
determinations legally. Executive branch agencies may also classify the information, which could
protect it from public release.93 The Atlantic Wire reported that several organizations, in addition
to the AP, have filed FOIA requests seeking release of the photographs of bin Laden’s death.94
Among those groups reportedly filing requests are two nonprofit organizations (Judicial Watch
and Citizen United) and two news organizations (Fox News and Politico).
It is unclear whether FOIA requires the release of or protects from release photographs related to
the killing of bin Laden. The 112th Congress has the authority to clarify in statute whether such
photographs are to be protected from public release. Congress may ascertain that DOD—or other
applicable executive branch agencies—should be given the authority to determine whether the
photographs could “endanger citizens of the United States, members of the United States Armed
Forces, or employees of the United States Government,” and, therefore, should not be publicly
released—regardless of FOIA. 95 Congress has the authority and may choose to amend section
565 of P.L. 111-83 to extend DOD’s—or any other agency’s—ability to restrict the release of
certain qualifying photographs. Conversely, Congress may decide to enact legislation that
requires the executive branch to release photographs associated with bin Laden’s death. Or
Congress may decide to do nothing, concluding that FOIA provides proper protections for the
release of certain documents, and agency and legal interpretations of FOIA should determine
whether photographs of bin Laden should be publicly released.
White House Visitor Logs
Another FOIA-related issue that may be of interest to the 112th Congress is the public release of
White House Visitor logs maintained by the Secret Service. Debate and litigation surrounding the
logs began in 2006, when Citizens for Responsibility and Ethics in Washington (CREW) filed a
FOIA request with the Secret Service seeking access to sign-in logs maintained at the White
House and the Vice Presidential Residence.96 The logs track who enters either of the two
locations. CREW filed suit in federal district court in 2007, after the Secret Service did not
respond to the FOIA request. The suit also challenged the service’s policy of deleting certain
White House visitor records, claiming such action violated the Federal Records Act97 and the
Administrative Procedure Act.98
(...continued)
Laden that were not photographs. DOD may apply FOIA in ways that permit the release of certain records while
withholding others. Richard Lardner, “AP Presses For Quick Review of bin Laden Records,” May 18, 2011, at
http://www.google.com/hostednews/ap/article/ALeqM5hfp9_OWBDq3njEzC1FUfPjvE2qMw?docId=
2d3a030c630040f6a0952ec630895140.
93 For more information on information classification, see CRS Report R41528, Classified Information Policy and
Executive Order 13526, by Kevin R. Kosar.
94 John Hudson, “NPR to File bin Laden Death Photo FOIA,” The Atlantic Wire, May 10, 2011, at
http://www.theatlanticwire.com/politics/2011/05/npr-file-bin-laden-death-photo-foia/37553/.
95 P.L. 111-83; 125 Stat. 2184-2185.
96 Citizens for Responsibility and Ethics in Washington v. DHS, 527 F. Supp. 2d 76 (D.D.C. 2007).
97 44 U.S. C. § 3101 et seq. (2006).
98 5 U.S.C. § 551 et seq. (2006).
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The district court found that the sign-in logs at the White House and the Vice Presidential
Residence are created and controlled by the Secret Service, and, therefore, are “agency records.”99
The court also rejected the Secret Service’s claim that disclosure of the records would prompt
separation of powers concerns because they could “impede the ability of the President and Vice
President to receive full and frank submissions of facts and opinions and to seek confidential
information from many sources, both inside and outside the government.”100 The Court of
Appeals dismissed the government’s appeal for lack of appellate jurisdiction.101 Despite the
court’s determination, the White House, under both former President George W. Bush and
President Obama, did not release the logs to the public. In June 2009, CREW filed another
complaint seeking access to the visitor logs.102
CREW terminated the latest complaint in September 2009, when the White House agreed to
release the Secret Service visitor logs.103 Since December 2009, White House visitor records that
are at least 90 to 120 days old have been publicly available.104 Pursuant to the agreed-upon policy,
certain fields within the records may be redacted to protect “personal privacy or law enforcement
concerns (e.g., dates of birth, social security numbers, and contact phone numbers); records that
implicate the personal safety of [Executive Office of the President] staff (their daily arrival and
departure); or records whose release would threaten national security interests.”105 Certain other
records are also excepted from release, including “purely personal guests of the first and second
families,” “records related to a small group of particularly sensitive meetings (e.g., visits of
potential Supreme Court nominees),” and “visitor information for the Vice President’s
Residence.”106 Visitor records created between January 20, 2009, and September 15, 2009, also
are not included in the Secret Service visitor log release. Instead, the policy states that “the White
House will respond voluntarily to individual requests submitted to the Counsel’s Office that seek
records during that time period, but only if the requests are reasonable, narrow, and specific.”107
According to an April 2011 report by the Center for Public Integrity, the White House visitor logs
“routinely omit or cloud key details about the identity of visitors, who they met with, the nature
of the visit, and even includes the names of people who never showed up.”108 Other reports
claimed that White House staff were meeting with “lobbyists and political operatives” at a coffee
99 Citizens for Responsibility and Ethics in Washington v. Dep’t of Homeland Security, 527 F. Supp. 2d 76, 98 (D.D.C.
2007) (citing United States Dep’t of Justice v. Tax Analysts, 492 U.S. at 147).
100 Ibid. at 98 (citing Def. Mot. Summary Judgment at 30). The court’s opinion questioned whether releasing the log
books would “impede the President’s ability to perform his constitutional duty,” saying the threat is not “great enough
to justify curtailing the public disclosure aims of FOIA.”
101 Citizens for Responsibility and Ethics in Washington v. U.S. Department of Homeland Security, 532 F.3d 860 (D.C.
Cir. 2008).
102 Citizens for Responsibility and Ethics in Washington v. U.S. Department of Homeland Security, No. 1:09-cv-01101
(D.D.C. 2009).
103 The White House, “Visitor Records,” at http://www.whitehouse.gov/briefing-room/disclosures/visitor-records.
104 The White House, “White House Voluntary Disclosure Policy Visitor Access Records,” at
http://www.whitehouse.gov/VoluntaryDisclosure.
105 Ibid.
106 Ibid. The policy does state it will release the number of people who visited the White House who would count
toward the “small group of particularly sensitive meetings.”
107 Ibid.
108 Fred Schulte and Viveca Novak, “White House visitor logs riddled with holes,” iWatchNews.com, April 13, 2011,
at http://www.iwatchnews.org/2011/04/13/4115/white-house-visitor-logs-riddled-holes.
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shop near the White House to ensure the meetings were “not subject to disclosure on the visitors’
log.”109
On May 3, 2011, the House Energy and Commerce Committee’s Subcommittee on Oversight and
Investigations held a hearing entitled “White House Transparency, Visitor Logs, and Lobbyists.”
In his opening statement, Subcommittee Chairman Cliff Stearns said
White House staff apparently purposely schedule meetings at the Caribou Coffee around the
corner from the White House so that those meetings won’t show up on the White House
logs. And one executive branch agency even went so far as to require lobbyists to sign
confidentiality agreements about their discussions with the administration.110
At the hearing, Anne Weisman, chief counsel from Citizens for Responsibility and Ethics in
Washington testified that the Secret Service logs were not meant to be used to determine who was
meeting with the President and his staff. She said
Some complain the visitor logs lack critical information, such as who the visitor is meeting
with, and that requests for clearance were made by low-level staff in order to conceal the true
nature of the visit. These criticisms reflect a fundamental misunderstanding of the nature of
these logs and the purpose they serve. The White House visitor logs are not the equivalent of
calendars or date books and, as every court to address this issue has found, are the records of
the Secret Service, not the President. The Secret Service creates these records in furtherance
of its statutory mission to protect the president, vice president, and their families, which
necessarily extends to protecting the White House complex….
To be clear, CREW disagrees with the legal position of the White House that these records
are presidential and therefore not publicly accessible under the Freedom of Information Act.
Nevertheless, we settled our litigation, which began under the Bush administration and
continued under the Obama administration, over access to these records when the Obama
White House offered to not only provide CREW with its requested records, but to post on the
White House’s website on an ongoing basis nearly all visitor records, subject to very limited
and reasonable exceptions.111
Some Policy Options for Congress
Congress has the authority to use its oversight and legislative powers to modify FOIA and affect
its implementation. Conversely, Congress may determine that FOIA operations and
implementation are currently effective, and decide to take no action. In this section, this report
reviews ways in which Congress could use its constitutional powers to modify FOIA’s
implementation or ensure that FOIA continues to be implemented in accordance with Congress’s
intentions.
109 Eric Lichtblau, “Across From White House, Coffee With Lobbyists,” New York Times, June 24, 2010, at
http://www.nytimes.com/2010/06/25/us/politics/25caribou.html.
110 U.S. Congress, House Committee on Energy and Commerce, Subcommittee on Oversight and Investigations, White
House Transparency, Visitor Logs and Lobbyists, 112th Cong., 1st sess., May 3, 2011, at
http://energycommerce.house.gov/hearings/hearingdetail.aspx?NewsID=8531.
111 Ibid., at http://republicans.energycommerce.house.gov/Media/file/Hearings/Oversight/050311/Weismann.pdf.
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Monitoring the Expansion of b(3) Exemptions
At hearings in March 2011, the House Committee on Oversight and Government Reform and the
Senate Committee on the Judiciary discussed ways to address the growing number of FOIA b(3)
exemptions. At these hearings, several Members expressed interest in having a centralized
collection of the existing universe of b(3) exemptions as well as having the opportunity to debate
the merits and scope of new b(3) exemption proposals. At the House hearing, Rick Blum,
coordinator for the Sunshine in Government Initiative, suggested that the committee
take a hard look at these exemptions when they’re proposed and make sure that they’re
absolutely necessary, that they’re narrowly described, that they don’t cover additional
information, make sure that the drafting is narrow, make sure that they are publicly justified,
and make sure that we have a chance to all weigh in.112
Giving committees with jurisdiction over FOIA implementation a chance to examine b(3)
exemptions before their enactment may prevent the creation of exemptions written more broadly
than intended and may permit certain agencies to operate without the public being able to access
data and records. Requiring each chamber to refer any legislation with a b(3) exemption to certain
committees, however, might require rules changes in each chamber. Such requirements could
slow down the legislative process, and, therefore, make it more difficult to enact protections for
sensitive information or data.
Consideration of FOIA Culture
Congress may be interested in ensuring that all agencies are implementing the most effective
FOIA practices and creating a more transparent operating culture. The Office of Information
Policy (OIP) within the Department of Justice, in compliance with federal law (5 U.S.C. §
552(e)(1)), annually compiles a summary of all agency Chief FOIA Officer reports and offers
recommendations to improve FOIA compliance. These reports include information on
outstanding FOIA requests, FOIA backlog reduction efforts, b(3) exemptions claimed to deny
requests, and actions that agencies take to make certain its employees are aware of new or
modified transparency policies. According to the annual reports, agencies have taken a variety of
steps to influence their internal FOIA culture, including widely distributing the President’s FOIA
Memorandum and the Attorney General’s FOIA Guidelines, creating agency-specific FOIA
guidance, attending governmentwide FOIA training, and providing agency-specific FOIA
training.113 Other agencies have voluntarily used Facebook, Twitter, and YouTube to webcast
meetings or publicize recent information and records releases.
In OIP’s 2010 report, which is the most current one available, the Office recommended that
• agencies require all personnel—FOIA and non-FOIA—to attend training on the
Administration’s guidelines on FOIA implementation;
112 U.S. Congress, House Committee on Oversight and Government Reform, The Freedom of Information Act: Crowd-
Sourcing Government Oversight, 112th Cong., 1st sess., March 17, 2011. The comment was made during the question
and answer period and can be seen at http://www.youtube.com/watch?v=lNbMe8StyXw (4:40 mark).
113 U.S. Department. of Justice, Office of Information Policy, “FOIA Post: Summary of Agency Chief FOIA Officer
Reports with Finding and OIP Guidance for Improvement,” July 29, 2010, at http://www.justice.gov/oip/foiapost/
2010foiapost23.htm.
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• agencies add a step in FOIA processing to consider whether additional records
can be released as a matter of “administrative discretion”;
• chief FOIA officers ensure that their staffs are receiving proper information
technology support;
• agencies conduct regular reviews of pending FOIA cases;
• agencies hire more staff; and
• agencies improve customer service.114
Congress may require agencies to adopt some, none, or all of OIP’s recommendations. Congress
may require agencies to change FOIA processing policies that are not addressed in OIP’s
recommendations, including requiring the use of social media. Additionally, Congress oversees
the operations of OGIS. OGIS, like OIP, is required to make recommendations to improve
implementation of FOIA. Congress may ignore, require the implementation of, or codify these
recommendations.
Status of White House Visitor Logs
The 112th Congress may consider enacting legislation that would determine whether Secret
Service logs that contain information on visitors to the White House should be made publicly
available or should remain protected records. For example, Congress may create legislation that
explicitly states whether the White House visitor logs should be treated as “presidential
records.”115 If so, the records would be afforded additional protections that could delay their
release by up to 20 years.116 If the logs were determined not to be “presidential records,” they
would be subject to public release unless a FOIA exemption applied. Codifying treatment of the
logs would require the Secret Service to release the logs regardless of who occupies the White
House. As noted earlier in this report, the current practice of releasing the records is the policy
only of the current Administration, and would not necessarily carry over to future
Administrations. Other legislative options might include (1) amending FOIA to create a specific
exemption for the Secret Service logs, which would allow the Secret Service to withhold them
from public release; (2) modifying the laws that govern operations of the Secret Service,
clarifying whether Secret Service records are governed by FOIA, the Presidential Records Act, or
by some other records policies; or (3) determining whether any legislation should be applied
retroactively to the records of the previous presidential administrations, or if the policy should
apply only to current and future Secret Service logs. Congress may opt to take no action, thereby
permitting the continued voluntary and limited release of such records under the Obama
Administration.
114 Ibid.
115 If Congress opted to create such legislation, it could do so by amending FOIA (5 U.S.C. § 552), PRA (44 U.S.C. §
2201), or the Secret Service Statute (18 U.S.C. § 3056) to explicitly state the status of the Secret Service logs. For more
information on presidential records, see CRS Report R40238, The Presidential Records Act: Current Policy Issues for
Congress, by Wendy Ginsberg.
116 Pursuant to the PRA, an outgoing President can restrict access to certain records for up to 12 years (44 U.S.C. §
2204(a). After 12 years, the President’s records are then subject to release pursuant to FOIA’s provisions. The 20-year
protection assumes a record was created in January of a two-term (8-year) President’s first term. The 12-year restriction
to record access begins at the end of a President’s tenure. For more information on the PRA, see CRS Report R40238,
The Presidential Records Act: Current Policy Issues for Congress, by Wendy Ginsberg.
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Releasing Photographs of bin Laden’s Death
The 112th Congress may have an interest in clarifying whether photographs related to the death of
Osama bin Laden should be released. As noted earlier in this report, Congress could amend the
applicable sections of the Department of Homeland Security Appropriations Act, 2010 (P.L. 111-
83) to permit the Secretary of DOD to withhold the record from release if it determined the
photographs “would endanger citizens of the United States, members of the United States Armed
Forces, or employees of the United States Government deployed outside the United States.”117 If
Congress chose not to amend P.L. 111-83 or otherwise enact legislation to clarify how the
photographs would be treated, the photographs arguably would be subject to FOIA. Congress
may require the executive branch to release the photographs. Release of the photographs may
prompt violent responses from individuals or groups that supported bin Laden, may bolster
support for the American military, or both. Release of the photographs may also have little or no
secondary effects.
An Alternative for FOIA Implementation: Centralizing FOIA
Processing
Congress also may choose to address the uneven implementation of FOIA across executive
branch departments and agencies. As noted earlier in this report, some agencies appear to have
dramatically reduced their FOIA backlogs and have taken steps to modify their culture to enhance
the processing of FOIA requests, while other agencies appear to have have been less aggressive in
making changes to their FOIA implementation. Congress may choose to continue using its
oversight powers in an effort to ensure that each agency is implementing FOIA according to
congressional intent. Conversely, Congress could relocate FOIA request processing outside of
individual agencies and create a new federal entity that would focus exclusively on answering
FOIA requests. Congress may also require an existing agency to process all FOIA requests.
Employees within the “FOIA processing agency” could determine which federal departments or
agencies possesses requested records, and then apply FOIA to determine whether requested
records would be released.
Creating a new entity to implement FOIA would likely have certain costs and benefits. For
example, a single FOIA processing entity may be able to apply FOIA more consistently across the
federal government than the dispersion of FOIA offices currently stationed within each federal
department and agency. A centralized FOIA entity, however, may not understand the sensitivity of
certain documents held within individual agencies. Departments and agencies would likely be
reluctant to relinquish control over the dissemination of their records. Centralizing FOIA
implementation may initially increase costs through the hiring and training of staff and securing
of office space. The centralized office, however, may decrease long-term costs by eliminating the
need for certain FOIA positions that currently are replicated in each federal agency—including
multiple FOIA attorneys, administrative assistants, and archival researchers.
If Congress were to create a centralized FOIA agency, there are a number of places it could be
housed. For example, Congress might place the agency within the Department of Justice, which
currently defends agencies if lawsuits result from FOIA implementation. Congress might place
the processing entity within NARA, which houses OGIS—also known as the FOIA ombudsman.
117 P.L. 111-83; 125 Stat. 2184-2185.
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Congress also might establish a “FOIA processing agency” as an independent entity that reports
directly to the President and Congress. Congress could elect to give the agency greater
independence from the President, as it did with the Social Security Administration and the Office
of Special Counsel.118
Author Contact Information
Wendy Ginsberg
Analyst in American National Government
wginsberg@crs.loc.gov, 7-3933
118 Mechanisms that establish greater independence include, for example, protection from arbitrary removal by the
President. See 5 U.S.C. § 1211 and 42 U.S.C. § 902.
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