FOIA Access to Information Scorecard 2015: State Department Gets an “F”

Posted: 5:27 pm EDT
Updated: March 13, 8:54 pm EDT, WSJ video added
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Yesterday, we did a snapshot of the FOIA operation in FY2014 based on the State Department’s annual reporting.

The following excerpt extracted from Making the Grade, Access to Information Scorecard 2015 (pdf)  originally published by the Center for Effective Government. To support their work, please check them out here.

A building block of American democracy is the idea that citizens have a right to information
about how their government works and what it does in their name. An informed citizenry is a key component of a healthy democracy. And without detailed information about what government does, citizens can’t hold their elected and appointed officials accountable for their actions.

These values were codified into law in 1966 with the passage of the Freedom of Information Act (FOIA). This law gives anyone a right to request information from government agencies
and requires agencies to promptly provide that information unless disclosure would harm a “specifically protected interest” established by law; protecting the personal privacy rights of individuals is one such interest. Over the years, millions of citizens have benefitted from the law’s disclosure of information about the safety of consumer products, environmental health risks in their communities, and public spending.

[…]

This is the second year the Center for Effective Government has conducted an in-depth analysis of FOIA implementation for the 15 federal agencies that together received over 90 percent of all the freedom of information requests in 2012 and 2013 (the most recent years for which data is available).

Image from Center for Effective Government

Image from Center for Effective Government

  • The Department of State score (37 percent) was particularly dismal. While its website is a bright spot for the agency (with a solid 80 percent on that sub-score), its 23 percent processing score is completely out of line with any other agency’s performance.
  • The State Department was the only agency in the scorecard whose rules do not require staff to notify requesters when processing is delayed, even though this is mandated by law.
  • While 65 percent of its requests were simple, only eight percent were processed within the required 20 days. The State Department had the second-largest request backlog and the third-lowest rate of fully-granted requests. Only 51 percent of requests were granted in full or in part at the State Department. The agency also had the longest average processing time for appeals – 540 days, or roughly a year and a half – and the second-largest backlog of appeals.

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Snapshot: State Dept FY2014 FOIA Personnel and Costs

Posted: 9:46 am EST
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Via FY 2014 FOIA Annual Report:

During this fiscal year the Department experienced a 60 percent increase in FOIA lawsuits over fiscal year 2013. The majority of new lawsuits involved voluminous sensitive records that required careful coordination with other federal agencies. To meet the demands of this upswing in FOIA lawsuits, the Department reallocated resources from FOIA processing to FOIA litigation, which directly impacted efforts to manage and reduce the backlog of pending FOIA requests that are not in litigation.

Despite all efforts, including employing best practices established during the successful backlog reduction project in fiscal year 2013 as well as processing over 88 percent of the thousands of referrals that were pending from last fiscal year and received by the Department this fiscal year, the FOIA request backlog rose by 15.8 percent this fiscal year. However, the Department achieved a significant reduction in the FOIA appeal backlog lowering the backlog by 13.7 percent. The Department also closed its ten oldest requests and consultations. These accomplishments are especially noteworthy in light of the fact that the Department reallocated FOIA processing resources to address large, complex FOIA litigation cases and to provide assistance to the Department on significant special document productions throughout the fiscal year.

Note that the number of FOIA requests and administrative appeals backlogs at the end of FY2014 (September 30,2014) is 10,045 or 1,376 cases more than FY2013. Processing of simple FOIA cases can take anywhere between 3 days to 1,576 days or 4.3 years. Processing complex cases can take anywhere between 11 days to 2,237 days or 6.1 years. The average number of days for processing expedited FOIA cases is 385.6 days. (see pdf)

In the table below, the “Equivalent Full-Time FOIA Employees” include When Actually Employed (WAE) former Foreign Service Officers who perform document review and students who work part-time throughout the year to process FOIA requests. Note that the breakdown of personnel does not identify exactly how many WAE and how many students are working FOIA cases, only that they are equivalent to “full-time employees.”  WAE employees have no regularly scheduled tour of duty and the hours worked cannot exceed 1,040 in a calendar year. As for the students, we don’t know how many students rotate through the FOIA office requiring training every year.   Also useful to know that each bureau has its own WAE application and appointment procedures and the ability to hire is limited by the bureau’s budgets.

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According to the annual report, the processing costs below include “a percentage of the costs incurred by IT staff who were employed to support the FOIA program as one of their major duties”  The IT staffing numbers are not reflected in personnel data column so we also have no idea how many IT staff supports the FOIA office.

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In related news:

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State Dept on Ambo Nominees’ “Certificates of Documented Competency” — Working On It

— Domani Spero

The American Foreign Service Association was in the news yesterday after announcing that it will file a suit against the State Department if, by end of business day today, it does not get the certificates of demonstrated competence for ambassadorial nominees (see AFSA Threatens to Sue State Department Over Ambassadors Credentials, Again).

The topic made it to today’s Daily Press Briefing with the State Department spokesperson Jen Psaki answering questions about AFSA’s FOIA requests for these documents which were reportedly filed on July 29, 2013 and a second request filed on February 28, 2014.  Ms. Psaki refused to make a prediction of whether State would respond to AFSA’s request by the close of business today.

At about 3pm EST, ABC News tweeted that AFSA is giving the State Department until tomorrow morning to furnish the requested “Certificates of Documented Competency” for ambassador nominees.

When you look at that AFSA FOIA request delay of 7 months and a week, it might be useful to note that in FY2012, the State Department’s total requests in backlog is 10,464.   In fact, according to foia.gov, State has one of the highest backlogs, second only to DHS. In FY 2011, the average number of days to process a simple case was 156; for complex cases, 342. Some cases have been pending for 5 or 6 years (see State Dept FOIA Requests: Agency Ranks Second in Highest Backlog and Here’s Why).  The oldest pending request, as you can see below is 1,922 days.

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Here is the short version of the March 6, 2014 DPB:

Screen Shot 2014-03-06

via Word It Out

Below is the long version from the March 6, 2014 DPB:

QUESTION: The American Foreign Service Association said yesterday that they were going to be filing suit against the State Department if, by end of business today, you don’t provide certificates of demonstrated competence for ambassadorial nominees. So I just wanted to know if you had any reaction to that.

MS. PSAKI: Sure. Well, AFSA submitted a FOIA request on July 29th 2013 to our website – this is just some details for all of you to be aware of – seeking certificates of a demonstrated competence for every ambassador from January 1st 2013 to the present. We receive, as many of you know, about 18,000 FOIA requests per year. Generally – we generally process requests on a first in, first out basis. So we’re currently actively processing the request in accordance with the statute and the Department’s regulations, which applies to the specific release they put out yesterday.

In terms of broadly speaking, obviously, in nominating ambassadors, we look – the Administration looks for qualified candidates who represent Americans from all walks of life and who show true zeal for serving their country, and we’ve received interest and recruited talented people from all across the country and all kinds of professional backgrounds, whether they are Foreign Service – well, that’s – they proceed through a different process, there, of course, but political appointees who may be from the business sector, who may be from a public service sector. We feel that this kind of diversity helps represent who we are and the United States around the world.

So long story short, we are reviewing their request. We process requests as they come in. Certainly we welcome the comments of anyone and views of anyone on these sorts of issues, but I think it’s important to remind everyone of what we look at when it comes to ambassadorial nominees.

QUESTION: Jen, they submitted this request in July? How many months ago?

QUESTION: January.

QUESTION: No, July 29th, she said.

QUESTION: I thought you said January.

MS. PSAKI: For every ambassador from January 20 —

QUESTION: Oh, sorry, sorry, sorry.

QUESTION: So how long should they expect to wait until you finish processing your request? And why should they even have to submit a FOIA request for this? Why wouldn’t you just – if they asked for it, why wouldn’t you just turn them over?

MS. PSAKI: They were asking for specific documents that are —

QUESTION: Right. But this is not an organization that has a questionable interest in this. It’s an organization that, in fact, represents – I mean, it is the – basically the union for Foreign Service officers, so it’s not really an outside party.

MS. PSAKI: Well, oftentimes, Matt, there’s a processing aspect that needs to take place with these requests, so —

QUESTION: Right, I’m sure that – I’m sure everyone is thrilled, everyone who’s ever filed a FOIA request to the State Department or any other government agency is thrilled, but I think that —

MS. PSAKI: There are many people who do. That’s part of the challenge in processing them.

QUESTION: Right. Okay, so you just threw this in the big pile, in the in-box with every single other request, even though they clearly have some – they have demonstrated interest in this subject. I don’t understand —

MS. PSAKI: I didn’t say we threw it in a pile, Matt.

QUESTION: Yeah, you did. You said you get 18,000 requests a year, so – and —

MS. PSAKI: We do. We process them.

QUESTION: So when they —

MS. PSAKI: But obviously, we’re working to review their request and see how we can meet it as quickly as possible.

QUESTION: But specifically they asked for it to be by the close of business tonight. Otherwise, they’re going to take their – take this to legal action.

MS. PSAKI: I understand that.

QUESTION: Are you saying that you will not be able to get it to them by end of day tonight?

MS. PSAKI: I’m not going to make a prediction of that. We’ll see what happens.

QUESTION: Just – can I have one —

MS. PSAKI: Sure.

QUESTION: Where – you are now processing this specific request, correct?

MS. PSAKI: Mm-hmm.

QUESTION: You’re actually looking at it and trying to satisfy it?

MS. PSAKI: Mm-hmm.

QUESTION: Okay. If you get 18,000 FOIA requests a year, what is the typical time lag for processing a request? Is it, as in this case, I guess, eight months or – is that typical or is it less, is it more?

MS. PSAKI: I don’t have any specific time breakdown for you. I’m happy to see if there’s anything like that we can provide.

QUESTION: And was this one —

MS. PSAKI: We’re – they’re about to start the press avail, but go ahead.

QUESTION: Okay. Was this one jumped to the front of the queue for any reason or no? It was processed —

MS. PSAKI: Well, there are cases where – and they asked for expedited processing, and some cases that question is asked. This didn’t satisfy the specific laid out standards for that, but we’re still working to see if we can process this as quickly as possible.

QUESTION: But it was not – was it jumped ahead or no? Or it —

MS. PSAKI: Well, we’re still working to see if we can process it as quickly as possible.

QUESTION: No, no, that’s not my question, though. My question is whether it got – I understand that they may have requested expedited processing —

MS. PSAKI: Mm-hmm.

QUESTION: — and did not – denied it because they don’t meet the standards, which happens to a lot of people.

MS. PSAKI: And at the same time, we’re still working to expedite – to process this as quickly as possible.

QUESTION: Right. Right. Right. No, but I’m sure you’re doing that with the other 17,199, right? I mean, the question is whether you are doing this faster.

MS. PSAKI: Specifically with this one, we are —

QUESTION: Yeah.

MS. PSAKI: — working to process it as quickly as possible.

QUESTION: But quicker than everything – others’ stuff?

MS. PSAKI: It doesn’t work in that exact way, but we’re working to process it as quickly as possible.

Ali.

QUESTION: And Jen, they said that – AFSA said that they also filed a second FOIA request on February 28th.

MS. PSAKI: Mm-hmm.

QUESTION: So did they express to you their – because I know there was discussion between counsels.

MS. PSAKI: Sure.

QUESTION: So was that part of the aspect, that they didn’t feel that the July request had been processed or addressed within a – expeditiously enough so that —

MS. PSAKI: You’d have to ask them that question. I’m not sure if they are basically about the same thing or not. So I’m happy to check, and you may want to check with them and see what the reason was for the second one.

QUESTION: These documents are – what they’re seeking or these certificates are not classified, are they?

MS. PSAKI: No, but they’re still internal files, and so obviously we go through a process —

QUESTION: Fair enough. But they’re for a very small number of people, 50. Do you have any idea how many pages one of these things is?

MS. PSAKI: Well, it’s every ambassadorial nominee for the last 14 months.

QUESTION: Right.

MS. PSAKI: So —

QUESTION: And how many – well, actually, it wouldn’t have been originally —

MS. PSAKI: 15?

QUESTION: No, because they filed it in July asking for every one that went back to January. So —

MS. PSAKI: But when you meet it, you’re abiding by what the FOIA request —

QUESTION: Fair enough. How many pages is one of these things?

MS. PSAKI: I don’t have a specific number of pages for you.

QUESTION: It seems to me like this is a very limited request from an organization that’s got a very, very important interest in this subject, and that frankly, they should, if they ask, should be allowed to see – without having to go to through the FOIA processing. Was there any – did – do you know – are you aware if they asked outside of FOIA to get this – to get these documents?

MS. PSAKI: They are closely engaged with our chief of staff and deputy secretary of state, and have a range of meetings. So I know that all of these issues have been discussed. In terms of this specific request, I can check if there’s anything we can share on that.

QUESTION: So in other words, you said no. They asked, you said no, you have to submit a FOIA? Is that —

MS. PSAKI: I’m not saying that’s how it all went down. I’m saying they have many channels for having discussions with people in the Administration. And if there’s more to share on whether they made this specific request outside of the FOIA request process, I’m happy to check into that.

QUESTION: Do you have any idea if there is a chance, even a remote chance, that the processing will be finished by 5 o’clock this afternoon?

MS. PSAKI: I’m not going to predict when it will be finished.

QUESTION: Well, I know, but —

MS. PSAKI: Obviously, we’re working to process it as quickly as possible.

QUESTION: I understand that. But is there a possibility that it could be done by 5 o’clock?

MS. PSAKI: There’s always a possibility.

QUESTION: There is. Okay.

QUESTION: How many nominees are we talking about? Have you got a figure?

MS. PSAKI: I don’t have a figure.

Well, then, tomorrow, maybe  — or we’ll wonder who’ll stop the rain …

 

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State Dept FOIA Requests: Agency Ranks Second in Highest Backlog and Here’s Why

State/OIG recently published its inspection of the Office of Information Programs and Services (IPS) located in the Bureau of Administration.   IPS is responsible for the Department’s records management and related technologies, including public access to information under Freedom of Information Act (FOIA) requests, privacy information and protection and classification management and review, including declassification. The IPS office according to the OIG inspectors has no overseas locations. A director leads a staff of 358 employees, including 152 Civil Service employees, 184 when actually employed (WAE) staff members, and 22 student interns.

The OIG notes that IPS plays a critical role in the Department’s communication with the public:

“By providing citizens access to the Department’s records, the office is instrumental in maintaining openness and transparency in the conduct of foreign affairs.”

Openness and transparency okay but nothing about promptness

“The Department’s FOIA process is inefficient and ineffective. IPS’s backlog of 6,950 cases continues to grow. A relatively small staff is processing the heavy volume of requests and dealing with new software. Delays in responses from other bureaus, offices, and agencies contribute to the problem. The Department receives among the highest number of FOIA requests in the U.S. Government. In FY 2011, IPS reported that it received 14,262 requests, in addition to the 21,252 requests already pending at the beginning of the year. IPS employees processed 26,802 requests during the year, leaving 8,712 pending. IPS reported that in FY 2011, the average number of days to process simple cases was 156; for complex cases, 342. Some cases have been pending for 5 or 6 years.”

According to http://www.foia.gov/ the State Department is second only to DHS in its ranking of federal agencies with the highest FOIA request backlog.  State/IPS average response time to a simple FOIA request in FY2011 is 156 days, its highest number of days to respond is 1,603.  The highest response time for complex cases is 2,460 days and for expedited cases is 1,802 days.

POGO points out that it takes State and USAID “on average seven times longer to process a simple FOIA request than the 20-day legal limit for simple requests” because as “they have to gather records from “hundreds of posts throughout the world” and “missions in over 80 countries.”

If it would make you feel better, click here for the Department of State FOIA Backlog Reduction Plan way back in 2008 with colorful graphics.

Below are some of the OIG report’s key judgments:

  • Leadership and management practices contribute to problematic morale and poor communication across the Bureau of Administration, Global Information Services, Office of Information Programs and Services (IPS). Management controls in IPS are insufficient, indicating leadership and management deficiencies in many parts of the organization.
  • The main responsibilities of IPS include managing the Freedom of Information Act (FOIA) and declassification programs, administering the Privacy Act, and conducting records management. Lack of cooperation from the Department of State (Department) and internal weakness hamper IPS’s performance of these duties.
  • IPS handles one of the largest FOIA workloads in the Federal Government. However, IPS’s lack of a sound process to develop its information systems led to delayed and flawed deployment of the Freedom of Information Document Managing System 2 (FREEDOMS 2), IPS’s key software for managing cases, resulting in significant backlogs.

This is the same system that State’s Annual FOIA Report dated March 2012 says is “designed to more efficiently and effectively perform case processing functions.”

State’s Chief FOIA Officer is Joyce Barr, the Assistant Secretary at the Bureau of Administration. IPS is headed by Deputy Assistant Secretary Margaret P. Grafeld who assumed post on September 2010. The director and deputy director of IPS are Sheryl L. Walter and Alex Galovich respectively.

The little devils in the fine details

  • Personnel in Department bureaus who serve as liaisons to IPS are normally staff assistants or others for whom FOIA responsibilities are a small part of their job. Their lack of responsiveness indicates that performance in handling FOIA requests is not a significant factor their evaluations. Even if it were, the Department has not developed performance standards for responding to IPS’s requests for documents. IPS does not report to the upper levels of the Department about the responsiveness of bureaus and embassies on FOIA. To improve the Department’s FOIA performance, the Department must fix responsibility at all stages of the process.
  • Persistent neglect of fundamental leadership responsibilities and management practices has had profound consequences in IPS. The OIG team’s observations, discussions with IPS staff, and the responses to OIG’s questionnaires indicated an office with problematic morale, perceptions of favoritism, micromanagement practices, and confused lines of authority. Inspectors found failures of communication, lack of training, questionable staffing decisions, and poor time and attendance record keeping. IPS’s new director is just beginning to address the many challenges that she faces.  Many suggest that poor morale stems from frequently changing priorities and excessive workload. REDACTED
  • Communication among all levels of IPS staff is poor. Division chiefs are located on the same floor in order to strengthen communication within higher-level management. This physical arrangement limits managers from seeing what their employees are doing on a daily basis, however. IPS leadership told the OIG team that they plan to change this arrangement with the building renovation, currently in process, which will colocate managers with members of their staff.

Is it just us or does it seem like when there is a negative report, things are often just in the cusp or the verge of change?  Apparently a new director is addressing the problem and the office’s physical arrangements will be changed with the building renovation.  Which should happen soon.


Despite the huge backlog, staffers go on excursion tours … to Brazil …to Brazil

“IPS recently allowed several staffers who process FOIA requests to take excursion tours in Brazil to assist in visa processing. At a time when IPS has a large backlog of cases, it is unwise to divert staff to other duties.”

In her Chief FOIA Officer March 12, 2012 Annual Report, Ms. Barr reports that “Comprehensive quarterly training is provided to employees who review documents in response to FOIA requests.” And that “Staffing has remained the same. Any vacant positions were filled during the year.”

The OIG report on staff development, training, staffing gaps

  • IPS management has not made staff development a priority because of the heavy workload. Some employees noted that the only training they have received during their tenure in IPS is on-the-job training and that they receive minimal constructive feedback regarding performance.
  • IPS does not have a plan to manage retirements and fill vacancies promptly. Since 2009, 69 employees have retired or resigned. Three division head positions and one branch chief position were vacant at the time of the inspection, one since 2007. The deputy director, in addition to his other duties, serves as acting head for all of those offices. This situation is unacceptable. These offices handle a significant part of the workload for IPS and require consistent, full-time leadership. However, IPS used funding for these positions to hire new full-time equivalents at lower grades.

All together now — Sister Sledge sings “We are family ….”

  • IPS employs an unusually large percentage of WAEs and contractors. The presence of these experienced employees, who work under a flexible system, is a source of strength to the organization. However, the OIG team identified multiple occasions when WAEs reached their hour or salary caps, and IPS rehired them under a contract so that they could continue performing the same work. It is not permissible for an employee on a temporary appointment who reaches his or her hourly or salary cap to continue work as a contractor performing the same duties.10 This practice can result in violations of Federal employee ethical standards and related criminal laws.
  • At the time of the inspection, three former deputy directors and one former senior advisor of IPS were working as contractors. The common perception among IPS staff is that only certain employees are provided this opportunity. The OIG team found several cases of immediate family members of IPS employees working in the office. Several employees raised the issue of nepotism in questionnaires or interviews with inspectors, and staff thought that family members have an advantage in the office. Some of these same family members were interns in the IPS student program before they received a full-time position with the Department.

Trickle up Awards Program Sounds Familiar?

  • IPS has an active awards program, but many employees noted that its implementation appears unfair. A few upper-level management employees appeared to receive consistent high-dollar cash awards in the past 3 years, but division staff at lower grade levels did not receive corresponding amounts. According to staff members, many believe that only a select group of individuals in IPS receives awards each year.

More not so fun details:

  • Many position descriptions have not been updated recently, with some dating from 1990.
  • IPS cannot identify how many records the Department creates.
  • IPS cannot account for hard-copy records that domestic bureaus and overseas posts should be sending on a regular basis to the records service center.
  • Despite the large number of hard-copy documents IPS reproduces, the office lacks copy machines that can handle the volume required.
  • In the absence of an accurate inventory, AAS was only able to estimate the levels of idle equipment as between 70 and 125 workstations.
  • SMART [State Messaging and Archival Retrieval Toolset] captured 61,156 of an estimated 15 million record emails in the system that should be captured.
  • An estimated 13,000 cubic feet of retired records are past due for destruction.
  • IPS issues office-specific security badges to its own employees […] Issuance of the IPS-specific badges is excessive and a waste of resources.

The Chief FOIA Officer reports that “Due to its global structure and the nature of its record holdings, the Department faces great challenges in achieving full compliance with the time limits of the FOIA.”  But don’t you worry, she insists in her annual report that “it remains committed to achieving the fullest possible compliance, with the greatest level of customer service.”

Related items:

Inspection of the Bureau of Administration, Global Information Services, Office of Information Programs and Services Report Number ISP-I-12-54, September 2012

State Department Chief Freedom of Information Act Officer Annual Report | March 12, 2012