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DoJ Report on FOIA – Positive, but Incomplete Development for Open Government

July 28, 2011

Attorney General Eric Holder's March 2010 memorandum on FOIA serves as the basis for the new Department of Justice FOIA report.

In a relatively unprecedented move, the Department of Justice (DoJ) has released a FOIA audit. The report covers 15 departments that process 80% of the incoming FOIA requests. All the findings of the DoJ’s assessment are based on the 2011 Chief FOIA Officer Reports that each agency is required to produce. The report is built around five sections, three of which corresponded to sections within the 2011 Knight Open Government Survey: updated internal guidance/training, effective systems for responding to requests, and increase in disclosures.

In the two categories that did not rely on quantitative data, major discrepancies appeared. Most of the discrepancies that arose when comparing the two reports occurred because the DoJ report does not require evidence beyond what agencies claim in their FOIA Officer Reports. In the Knight Survey, evidence of updated internal guidance or assessment of systems was required from an agency for a “passing grade.” Not only does requiring documentation provide concrete proof of policy implementation, but it also serves as a competency test for FOIA departments.

In fact, the largest cause of discrepancies between the two reports is the lack of response to FOIA requests sent for the Knight Survey. Five of the fifteen agencies in the DoJ report did not submit a final response to the Knight Survey FOIA request and one additional agency responded that they had no responsive documents that indicated updated guidance or an assessment of adequate FOIA resources. The DoJ reported that all fifteen agencies had updated internal guidance and held training sessions. However, the Department of Housing and Urban Development, in their response to the FOIA request for the Knight Survey, did not produce documents that concretely demonstrated that step.

Focusing on the section dealing with the adequacy of resources dedicated to FOIA, a few more interesting discrepancies appear. As with the guidance and training section, the agencies that failed to respond or did not produce records in the Knight Survey were rated positively in the DoJ report. The Department of Homeland Security was rated positively by the DoJ, but did not demonstrate concrete proof for the Knight Survey. In a reversal of the discrepancy pattern so far, the DoJ report gave the Department of Health and Human Services mixed reviews of its FOIA IT, but disclosed enough information to earn a positive score in the Knight Survey.

Comparison of results between DoJ report and Knight survey

Summarizing the discrepancies over these two sections: eight out of fifteen agencies in the training and guidance section were rated the same in both reports and seven out of fifteen in the FOIA resources section received similar ratings.

Discrepancies aside, the DoJ reports does stand as a very positive development for government openness. When tracking agencies’ disclosure trends, no discrepancies exist between the DoJ report and the Knight Survey. The “traffic light” metric for rating agencies is easy to understand and fairly robust. Nevertheless, since the DoJ does not test FOIA competency as the Knight Survey does, it acts more like an aggregator of data, much like for the Annual FOIA reports.

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