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June 24, 2014

FOIA Oversight - The Budget Perspective

By Daniel Schuman

With the recent passage of FOIA reform legislation in the House of Representatives, the likely consideration of FOIA reform legislation in the Senate, and ongoing executive branch efforts to reform FOIA (most notably through the Second Open Government National Action Plan), we thought it valuable to examine the financial side of FOIA.

In particular, smart oversight of FOIA can have profound effect on its costs of administration. How much are we spending on FOIA oversight? How does that compare to the costs of litigation? How much does the government spend on FOIA administration overall?

Answers to these questions were not easy to find and in some instances were incomplete or unavailable. Two distinct offices are involved with government-wide FOIA implementation. The Office of Information Policy (OIP), housed within the Department of Justice, is responsible for overseeing implementation of FOIA. The Office of Government Information Services (OGIS), housed within the National Archives and Records Administration, is responsible for reviewing FOIA policies.

OIP publishes overall numbers on the costs of FOIA on FOIA.gov/data, although information is limited by the data that is collected. For example, it is not possible to determine the costs of FOIA fees broken down by the basis of collection. Information on OIP’s budget cannot be found in the Justice Department’s Annual Congressional Budget Justifications; even with OIP’s help, it took more than a month to obtain basic information. OGIS’ Congressional Budget Justifications generally were complete and straightforward.

This article reviews:

  • The costs of FOIA administration
  • The structure of the Office of Information Policy
  • Funding for the Office of Government Information Services
  • A rough comparison of OIP and OGIS funding levels
  • A rough comparison of the costs of oversight versus fees
  • A rough comparison of the costs of oversight versus litigation

 

THE COSTS OF FOIA ADMINISTRATION

In fiscal year 2013, the government spent $446 million administering FOIA government-wide. Of that, processing costs totaled approximately $419 million and litigation costs amounted to approximately $27 million. Attorney's fees incurred by plaintiffs in litigating FOIA requests are not necessarily included in litigation costs.

Chart FOIA Costs

 

Fees collected through FOIA were approximately 1 percent of the total costs of administering FOIA, or $4.3 million in fiscal year 2013. The government does not break down the purposes for which the fees were collected.

Freedom of Information Act fees collected by the government

 

THE OFFICE OF INFORMATION POLICY (OIP)

The Office of Information Policy is composed of three units with specialized roles. They perform the following functions:

  • Processing FOIA requests for seven senior management offices within the Department of Justice (11 people)
  • Adjudicating administrative appeals for all units within the Department of Justice (13 people)
  • FOIA Policy and Compliance (4 people)

While OIP is authorized to have up to 43 staff, it currently has 33 federal employees. (Information is not available on whether OIP employs contractors.) In addition to the staff identified above, OIP also employs a director, a chief of chaff, and three administrative support personnel. Prior to 2013, no separate policy and compliance staff existed. Staff may perform duties outside their functional units at the discretion of the director.

Employee functions chart federal government FOIA

OIP's budget request for fiscal year 2015 would fully fund the office, adding 10 full-time employees (FTEs) to fully staff the office. The office currently is funded through a reimbursable account whereby OIP's operations are paid by other Justice Department components within government. However, the administration's proposal would move all funding to OIP under the "General Administration" appropriation.

OIP's allotment decreased by $250,000 from fiscal year 2012 to fiscal year 2014, but it would likely increase should Congress accept the president’s proposed budget. In fiscal year 2014, OIP received just shy of $5,998,000. Of that, approximately $4.7 million were for personnel costs and $1.3 million were for non-personnel costs.

 

THE OFFICE OF GOVERNMENT INFORMATION SERVICES (OGIS)

OGIS is responsible for reviewing agency FOIA policies and procedures as well as mediating disputes. The administration requested $913,000 for OGIS in fiscal year 2015, down from $1,074,000 in fiscal year 2014 and $1,629,000 in fiscal year 2013 (when it was initially created). It has seven staff, although just recently OGIS was authorized to hire additional staff.

 

FUNDING COMPARISONS

OIP receives approximately six times the funding that OGIS receives. It is worth noting, however, that only some OIP funds are directed towards policy and compliance. At a guess, OIP probably spends around $1 million on policy and compliance, although it is likely OIP can change that amount at the discretion of its director. OIP and OGIS's funding levels, as illustrated below, are not perfectly comparable, as one is OGIS's budget request and the other is OIP's budget allotment.

FOIA fees bring in the equivalent of two-thirds of the budgets of OIP and OGIS combined. Fees go to the Department of Treasury, not to the agencies. Once the non-government-wide FOIA OIP expenses are removed from the equation, fees likely would cover the entire cost for government-wide FOIA oversight.

CHART: FOIA oversight costs compared to fees

 

Known litigation costs amount to more than four times the funds necessary to fund both OGIS and OIP. It is unknown the extent to which OGIS and OIP impact litigation costs. Again, note that much of OIP's expenditures concern DOJ's FOIA compliance activities, not government-wide FOIA oversight.

Information breaking down the source of fees is not tracked by the government. More data would add additional useful context to this analysis.

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