OGIS Issue Assessment: Follow-up on Agency Freedom of Information Act (FOIA) Website Communications on COVID-19

Published January 27, 2021

This report follows up on a June 2020 Office of Government Information Services (OGIS) assessment, Agency Freedom of Information Act (FOIA) Website Communications on COVID-19, and examines whether agencies are following U.S. Department of Justice’s Office of Information Policy (OIP) guidance encouraging them to use their websites to inform requesters about processing delays related to the COVID-19 pandemic and the most efficient way to submit requests.

Introduction

The number of federal Freedom of Information Act (FOIA) websites that alert requesters to delays and other effects of the COVID-19 pandemic on FOIA processing increased from 37 percent to 47 percent between May 2020 and October 2020, according to a review of federal FOIA websites by the Office of Government Information Services (OGIS).

A review of FOIA websites for 305 Cabinet-level departments and their components as well as independent agencies showed that FOIA programs receiving the greatest number of requests are more likely to alert the public to the pandemic’s effects on processing than agencies receiving fewer requests.

Eighty-one percent of FOIA programs that received more than 10,000 FOIA requests in Fiscal Year (FY) 2019 use their websites to notify requesters about pandemic-related delays in accordance with guidance from the U.S. Department of Justice’s Office of Information Policy (OIP). OIP’s May 2020 guidance also encourages agencies to provide information on the most efficient way to make a request.

The move to a full-time work-from-home environment in March 2020 in response to the pandemic challenged FOIA programs governmentwide, particularly those that were not telework-ready, work with largely paper-based records, and/or work with classified records or systems for processing records responsive to FOIA requests.

OGIS, which is in a unique position to observe FOIA administration across the government as the federal FOIA Ombudsman, urged agencies early in the pandemic to provide – and update – information on their FOIA websites regarding the status of processing requests amid the pandemic.

OGIS reviewed FOIA websites for 305 Cabinet-level departments and their components as well as independent agencies between May 15, 2020, and June 9, 2020, to determine whether agencies alerted requesters via agency FOIA websites to changes in their FOIA processing due to the COVID-19 pandemic, setting expectations that delays were likely to occur. OGIS issued a reporton the review which showed that nearly 60 percent of federal FOIA websites did not provide updates on how the pandemic affected the processing of FOIA requests. OGIS also found that the nearly 40 percent of federal FOIA websites that alerted requesters to changes in their FOIA processing due to pandemic offered various messages, most frequently urging requesters to submit requests electronically, notifying requesters to expect delays, and/or providing suggestions for narrowing the scope of their requests to ensure a more timely response.

On May 28, 2020 during our initial review of agency FOIA websites, OIP issued guidance for agencies administering FOIA amid the pandemic.

OGIS Follow-up

OGIS’s objective of this assessment was to determine whether agencies implemented OIP guidance to post notices on their websites to inform requesters about delays related to COVID-19 and provide information about the most efficient way to make a request.

Using the same method used in our initial review, we reviewed the FOIA websites of 305 Cabinet-level departments and their components as well as independent agencies. For the follow-up review, we also looked at the number of requests received in FY 2019 by each agency/component to see whether there was a relationship between the number of requests received by the agency/component and whether the agencies alerted the public on their FOIA websites to the pandemic’s impact on FOIA operations.

We conducted our follow-up review from October 2, 2020 to October 16, 2020. It is important to note that our review of each agency FOIA website reflects a snapshot in time, and FOIA programs may have updated their FOIA websites since our most recent two-week review. A copy of the data from our follow-up review, including the particular pandemic messages on agency FOIA websites, is available on this spreadsheet

Our follow-up assessment shows that:

• The number of FOIA websites alerting requesters to the pandemic’s effect on FOIA processing increased by 10 percentage points between May 2020 and October 2020.
   
• Agencies that have COVID alerts on their FOIA websites tend to receive a higher volume of requests. Twenty-seven of the FOIA websites we reviewed were for agencies that received more than 10,000 FOIA requests in FY 2019. Of those 27 websites, 81 percent featured COVID alerts. Forty-four of the FOIA websites we reviewed were for agencies that received between 1,000 and 9,999 FOIA requests in FY 2019. Of those websites, 70 percent featured COVID alerts on their FOIA websites.
   
• Agencies that did not have COVID alerts on their FOIA websites tended to have a low volume of requests. Seventy-eight of the FOIA websites we reviewed were for agencies that received fewer than 50 FOIA requests in FY 2019. Of those FOIA websites, only 14 percent featured COVID alerts. Thirty-four of the FOIA websites we reviewed were for agencies that received between 50 and 99 FOIA requests in FY 2019 and 42 were for agencies that received between 100 and 199 FOIA requests in FY 2019. Of those websites, 44 percent and 45 percent, respectively, featured COVID alerts on their FOIA websites.

Figure 1: Percentage of Agency FOIA Websites Reviewed by OGIS Featuring Alerts Concerning COVID-19's Impact on FOIA Operations by Distribution of Requests Received in Fiscal Year (FY) 2019

Figure 2: Agency FOIA Websites OGIS Reviewed for its “Initial” and “Follow-up” Reviews

OIP’s guidance provided sample language for agencies to use to tailor their own message:

Due to the COVID-19 pandemic, OIP has adjusted its normal operations to balance the need of completing its mission as effectively and efficiently as possible while also adhering to the recommended social distancing for the safety of our staff.  As a result, you may experience a delay in receiving an initial acknowledgment as well as a substantive response to your FOIA request or appeal. We will be able to acknowledge requests made electronically more quickly than by mail. You may reach out to our FOIA Requester Service Center and FOIA Public Liaison if you have any questions about your request. We apologize for this inconvenience and appreciate your understanding and patience.

We found that many agencies used this or substantially similar language on their FOIA websites.  The following are highlights of other language agencies are using on their FOIA websites:

• Office of Government Ethics (OGE): “OGE’s FOIA Office is currently operating remotely. Please send new FOIA requests electronically to USOGE@oge.gov or through FOIA.gov. Requesters may experience delayed responses if FOIA requests are submitted by mail, or if a request requires FOIA staff to search and review paper records.” (Reviewed October 15, 2020)
   
• Social Security Administration (SSA): “SPECIAL NOTICE (as of 10/14/2020) The Office of Privacy of Disclosure at Social Security Administration (SSA) continues to process Privacy Act (PA) requests and complex Freedom of Information Act (FOIA) requests for agency records during the COVID-19 pandemic; however, we are experiencing operational challenges that are affecting our timely processing of certain workloads. Due to staffing limitations, the Office of Central Operations is delayed in their processing of FOIA requests which include the processing of requests for copies of a deceased person’s original Applications for a Social Security Card (SS-5), Numident printouts, and earnings records. The agency is currently processing some PA requests; however, we are doing so with limited, available resources as a result of temporary office closures. Please view the agency’s Coronavirus (COVID-19) Updates page for additional information about field office closures and SSA’s online services.” (Reviewed October 8, 2020)
   
• U.S. Election Assistance Commission (EAC): “Please note that due to the coronavirus pandemic receipt and response to mailed FOIA requests may be delayed. To ensure prompt attention to your request please consider submitting via fax or e-mail.” (Reviewed October 16, 2020)

* The number of requests the agency or component received in FY 2019 was not available for various reasons. For more information, refer to this spreadsheet