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DoD Freedom of Information Act Policies Need Improvement DODIG-2016-124

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Objective

The Chairman of the Senate Committee on Homeland Security and Governmental Affairs requested that the DoD Office of Inspector General (DoD OIG) determine whether noncareer officials (political appointees or persons nominated by the President and confirmed by the U.S. Senate) were adversely affecting the Freedom of Information Act (FOIA) process at the DoD between January 2007 and July 2015. In response, we determined whether DoD noncareer officials unduly influenced the FOIA response process through unnecessary delays or withholding of information that would have otherwise been released absent the noncareer official’s involvement.

Findings

Our evaluation did not disclose any instances of DoD noncareer officials unduly influencing the FOIA response process. On November 9, 2015, we advised the Chairman of the Senate Committee on Homeland Security and Governmental Affairs of our evaluation results (see Appendix D).

During the course of this evaluation, however, we determined that DoD FOIA policies are outdated. The DoD Deputy Chief Management Officer (DCMO) had not updated DoD FOIA policies, as required by DoD Instruction 5025.01, “DoD Issuance Program,” to ensure currency and accuracy. The DoD FOIA policies did not include requirements established in Executive Order 13392, “Improving Agency Disclosure of Information,” and the “OPEN Government Act of 2007.” According to the Executive Order and the Act, agencies must review their FOIA processing operations, report on their FOIA improvement plan implementation, and strengthen procedures related to FOIA administration. Additionally, the DCMO did not incorporate guidance being used for “significant” FOIA releases into DoD Regulation 5400.7-R, “DoD Freedom of Information Act Program.” A “significant” FOIA request is defined as any FOIA request in which the subject matter of the released documents may be of interest to DoD senior leadership, the public, the media, or Congress.

Recommendations

We recommend that the DCMO:

         • Update DoD Directive 5400.07 and DoD Regulation 5400.7-R, “DoD Freedom of Information Act Program,” to comply with DoD Instruction 5025.01 and include requirements of Executive Order 13392 and the “OPEN Government Act of 2007.”

         • Incorporate the notification procedures for “significant” FOIA releases into DoD Regulation 5400.7-R.

Management Comments

The DCMO partially concurred with our recommendations and decided to create a new issuance DoD Manual 5400.07 to replace DoD Regulation 5400.7-R. We believe the creation of a new manual to replace the outdated FOIA guidance satisfies the intent of recommendation 1.a. The DCMO also plans to revise its notification procedures for “significant” FOIA releases once it meets with the DoD Office of General Counsel. We consider the DCMO comments to recommendations 1.a. and 1.b. to be responsive and no further comments are required. Please see the Recommendations Table.

This report is a result of Project No. D2015-DAPOCM-0233.000.