Last week, the Department of Justice’s Office of Information Policy published a summary of the data reported by agencies in their annual Freedom of Information Act reports for fiscal year 2024. FOIA Advisor reported some of the FY 2024 raw data that had been posted on FOIA.gov in mid-March, such as the total number of requests and appeals, backlogs, and processing costs. Staffers Allan Blutstein (AB), Kevin Schmidt (KS), and Ryan Mulvey (RM) share their thoughts on OIP’s report.
KS: This is the third straight year with double digit percentage increases in FOIA requests (see graph of requests received since FY2015 here):
FY23 to FY24 = 25%
FY22 to FY23 = 29%
FY21 to FY22 = 10%
What is driving these large increases in request volume? Are we finally seeing the effects of AI helping individuals and organizations submit large volumes of requests? If this trend holds and full-time FOIA staff drops from buyouts and reductions in force, FY25 could be a disaster in terms of unanswered requests and backlog growth.
RM: Good questions, Kevin. I would be interested to see data on the total number of unique requesters, rather than distinct requests. I don’t know if that information is maintained by any agencies or could easily be calculated. I acknowledge it isn’t required to be included in each agency’s annual report. Perhaps that’s something OIP could change for next year? It might be useful for navigating claims that the uptick in requests is driven by a select group of what some might term “vexatious” requesters.
Personally, I had expected to see an uptick in the proportion of rarer dispositions issued on processed FOIA requests, specifically categories like “not an agency record,” “duplicate," “improper,” and “not reasonably described.” But the numbers there are only slightly higher than in FY23, and they don’t seem to be drastically different from earlier years either.
What really stuck out to me, though, was the +400% increase in subsection (a)(2) records posted online by agency FOIA offices. The total number of proactively disclosed records itself has only increased slightly by 0.77%. (I wonder how many people notice that?!) I would have appreciated a bit more information about why FOIA offices (as opposed to program offices) did so much better with posting roughly 1.5 million more documents online. What sorts of records were these?
AB: We all know what isn’t keeping the number of requests in check: too-rarely-charged processing fees. Some may view that as a good thing, especially frequent FOIA requesters, but should Joe and Jane Taxpayer bear the brunt of the $700 million-plus in costs? I think not. As for the number of unique requesters, Ryan, I share your curiosity. But OIP should not obligate agencies to figure out and report that data. Just peruse or ask for FOIA logs, as academics curious about other issues have done. And why did you expect agencies to deny substantially more requests on non-exemption grounds, pray tell? I actually know why, but I’ll let you spell it out for our readers. Confession is good for the soul.
I’ll chose a different area of DOJ’s report to focus on: the average processing time for “simple” track requests. DOJ reported that the “average processing time for simple track requests for agencies that reported data . . . was 44 days,” which is an 11.6 percent increase from 39.4 days in FY 2023. I have two comments about that: first, 44 days is the highest average processing time reported for simple requests since such data was first reported in 2011 (DOJ reported in median days before then). Second, I have discovered—by reviewing the raw data on FOIA.gov—that DOJ’s reported government-wide average response times are highly inaccurate, because DOJ uses arithmetic means instead of weighted means. In other words, DOJ gives absolutely no weight to the fact that agencies process different amounts of requests. That is a significant error given that DHS, for example, processed 60 percent of all requests in FY 2024 with an average response time of only 5 days for simple requests. In sum, the government has processed simple track requests at a faster rate than DOJ has reported.
Not to belabor the point, but I must note that DOJ is well aware that weighted means is a more accurate measurement, as it expressly instructs agencies with components to use them for annual reporting purposes (or to use response times for every single request across components). See Department of Justice Handbook for Agency Annual Freedom of Information Act Reports 32-33 (2024). Additionally, DOJ doesn’t even bother to report an overall response time for “complex” requests, which is just as well since any number it would generate via arithmetic means would be inaccurate—or as the renowned Supreme Court litigator Lisa Blatt might bluntly say, it would be “a lie.”
KS: A day after I drafted my first comment above on the increase in requests, the Brechner Center published a blog that included a quote from OIP:
“We called and talked with Lindsay Steel, chief of the OIP compliance office, and while she couldn’t comment on specific causes of the increase, she said her office was surprised by the data. “The increase really was unprecedented,” Steel said.”
Just did a quick check of the DHS Privacy Office FOIA Log for FY2024 and found 3 people from one organization submitted almost 1/3rd of all requests. So that lends some evidence that the increases might be attributable to certain groups and potential AI use.
I'm not in theory opposed to Allan's suggestion of charging more processing fees to cover the costs of FOIA, but It would have to be a flat fee processed online at the point of the initial request. If the feds try to copy how they do it at the state and local level with fee estimates for every request with payment by mailed checks, nothing would ever get done. I'm not sure FOIA processors would like the results of this change though. Requesters that paid a fee will highly motivated to get their money's worth and be in contact as much as possible.
RM: I am quite open to fee reform. The whole fee system needs to be simplified—for example, let’s get rid of the limitations introduced by the 2016 FOIA Improvement Act—and modernized. I like the idea of a flat fee, as you suggest Kevin, at the point of submission. Short of that, if you simultaneously raise fees, eliminate preferred fee categories, and make public-interest fee waivers more liberally available, you could potentially create a situation where agencies find it worthwhile to collect, and those requesters who truly deserve records at a discounted rate are still able to receive them as such. The status quo just isn’t sustainable without Congress deciding to appropriate more money for FOIA at the line-item level.
And to your question, Allan . . . my expectation was based on two things. First, with the much-discussed increase of “bot”-drafted and submitted requests, as well as what some might term “vexatious” requests, I expected more agencies to be guarding the front door, as it were. Second, and somewhat relatedly, I’ve personally noticed an uptick in the number of FOIA cases where DOJ is arguing that requests aren’t reasonably described. Admittedly, that doesn’t mean agencies are doing the same thing at the administrative level. I also suppose it’s possible there’s some correlation between larger, more complex requests—the sort the government would, in fact, want to treat as invalid—and the requesters likely to litigate. That could be skewing my perspective a bit. Still, I thought there might be some effect on the data trends. On a less serious note, I am personally fascinated by the agency-control question and these other non-exemption dispositions, so . . . the more they happen, the more I get to talk about them!
AB: Well said on fee reform, Ryan, except the public-interest fee waiver standard is liberal enough. Only seven states even have a mandatory public-interest fee waiver, according to a 2021 survey by the Maine legislature. I might exclude commercial requesters from any flat fee proposal, Kevin, and would allow agencies to impose surcharges for voluminous records. Eliminating search fees—even if only for non-commercial requesters—would encourage larger and more complex requests and drive up the government’s costs far beyond the amount of the nominal flat fees collected.
