FOIA Is Broken: The 2026 Backlog Numbers Washington Doesn't Want You to Read

The email arrived in March of 2026 from a federal records officer who has, by his own count, been waiting eight years on a single FOIA request. He is not a journalist, and not a partisan. He is a retired auditor who wants the inspector-general working papers behind a 2017 contracting decision that cost his old agency several million dollars. His request was acknowledged. It was logged. It received a tracking number. Then it disappeared into a queue that, according to the Department of Justice's own 2026 Chief FOIA Officer Report, now contains 29,308 unfinished DOJ requests alone — up from 21,567 the year before, an increase of more than a third in twelve months [justice.gov].

His story is not unusual. It is, in fact, the median experience now. The Freedom of Information Act of 1966, codified at 5 U.S.C. § 552, says agencies "shall ... determine within 20 days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of any such request whether to comply" [justice.gov]. In 2026, that statutory clock is a fiction. Across the executive branch, federal agencies finished FY2025 with backlogs that range from a few dozen requests at small components to 110,271 unfinished requests at U.S. Customs and Border Protection alone [dhs.gov]. The Government Accountability Office, in its testimony filed as GAO-26-109034 earlier this year, called the situation a "persistent challenge" that undermines "the public's right to know what their government is doing" [gao.gov].

What follows is not opinion. It is what the federal government has reported, in writing, about itself.

Sources: DOJ OIP, May 2026; DHS FY2024 Annual Report; OGIS FY2024 Report.

The Law on Paper

To understand the scale of the failure, it helps to first understand the rules the government is supposed to be following. The Freedom of Information Act is not a suggestion. It is a federal statute with mandatory deadlines, presumption-of-openness language, and an enforcement mechanism that reaches all the way to the federal courts. The text, as amended by the FOIA Improvement Act of 2016 (S.337, Public Law 114-185), is unambiguous on the central point: any person can request any record from any executive-branch federal agency, and the agency must respond, in substance, within twenty business days [congress.gov].

That same 2016 reform did three things the Justice Department's Office of Information Policy still cites as foundational. It codified a "presumption of openness." It limited the deliberative-process exemption (Exemption 5) to records less than twenty-five years old. And it required the Office of Government Information Services — the FOIA ombudsman housed at the National Archives — to offer mediation services for disputes between requesters and agencies [congress.gov]. The Senate passed it 100-0. President Obama signed it on June 30, 2016. The intent was a statute with teeth.

The most important addition, buried in section 2 of the Act and now codified at 5 U.S.C. § 552(a)(8)(A)(i), is the foreseeable harm standard. The statutory language reads: an agency "shall withhold information ... only if the agency reasonably foresees that disclosure would harm an interest protected by an exemption" [justice.gov]. Before 2016, an agency could lawfully redact anything that could theoretically fall under one of the nine FOIA exemptions. After 2016, an agency is supposed to articulate a real, foreseeable injury before applying a black bar. In practice, the foreseeable-harm test is honored more in form than in substance — a point the GAO has made repeatedly [gao.gov].

The most heavily-used exemption today is not Exemption 1 (classified national-security information). It is not even Exemption 5 (deliberative process), which is what most journalists complain about. It is Exemption 7(C) — "personnel and medical files" within law-enforcement records — which DHS alone invoked 437,455 times in fiscal year 2024 across all its components [dhs.gov]. Exemption 7(E), which shields "techniques and procedures for law enforcement investigations," was used 335,399 times at DHS in the same year [dhs.gov]. That single component, by itself, applied more law-enforcement redactions in one fiscal year than the federal courts heard FOIA cases in the entire 1970s.

The 2026 Numbers, Counted

The Office of Information Policy at the Justice Department announced on May 7, 2026, that every federal agency had finalized its FY2025 Annual FOIA Report and published the data on FOIA.gov. The headline figure: federal agencies received more than 1.7 million FOIA requests in FY2025 — a 13 percent increase over FY2024 and the fifth straight year of growth [justice.gov]. Agencies processed a record 1.6 million requests, a 9 percent increase. Read those two numbers carefully. Receipts rose by 13 percent. Closures rose by 9 percent. The math of the backlog is in the gap.

OIP's own assessment of the prior year's reporting cycle — its Summary of Agency Chief FOIA Officer Reports for 2025 — concluded that forty-seven federal agencies experienced a backlog increase of more than five requests over the previous reporting period [justice.gov]. That is roughly half of the cabinet-level and major-component universe. The places where the backlog is shrinking are the exceptions, not the rule.

The Department of Justice itself — the agency that writes the policy, oversees compliance, and trains everyone else's FOIA officers — provides perhaps the most damning data point of all. According to its own 2026 Chief FOIA Officer Report: the Department received 159,743 FOIA requests in FY2025, processed 147,588, and ended the year with a backlog of 29,308 — up from 21,567 the year before [justice.gov]. The teacher cannot pass the test.

The Biggest Backlog Holders

Not every agency is broken. The Environmental Protection Agency, to take a striking counter-example, received 8,651 FOIA requests in fiscal year 2025 and closed 8,628 of them — a closure-to-receipts ratio of 99.7 percent. EPA's full backlog at year-end was 1,663 requests, a number that has held remarkably steady year over year [epa.gov]. EPA's average processing time for a simple request, according to its own Chief FOIA Officer Report, was 33.4 days — over the 20-day statutory rule but a fraction of what other agencies report [epa.gov]. EPA decides fee-waiver applications in an average of five days. It rules on expedited-processing requests in under three days. The agency uses RelativityOne for review and redaction, a commercial software platform with machine-automation tools, and it has begun deploying a generative-AI tool for intake triage [epa.gov]. EPA proves the math can work.

Then there is the Department of Homeland Security. DHS's FY2024 Annual FOIA Report — the most recent complete report — shows the Department received 911,535 FOIA requests in a single year, processed 894,939 of them, and finished with a backlog of 141,420 requests plus 1,508 administrative appeals [dhs.gov]. Inside the Department, the breakdown looks like this:

Customs and Border Protection's 110,271-request backlog is itself larger than the entire annual receipts of most cabinet departments. The DHS report shows the simple-request average processing time at 3 days — but the complex-request average is 159 days, and even expedited requests took 57 days on average [dhs.gov]. The statute requires a determination on expedited-processing applications within ten days. DHS missed that benchmark by more than five times on average. The reasons cited by DHS itself in the report's narrative: increasing volume, complexity of records (especially body-camera footage), staffing turnover, and litigation pressure.

The Federal Bureau of Investigation's Fiscal Year 2027 Budget Request to Congress, which the Department of Justice submitted in March 2026, says the FBI needs more money in part because "requested resources will allow the FBI to address growing backlogs of FOIA requests" [justice.gov]. The Bureau, in its own words, has a growing FOIA backlog. The FBI's response is to ask Congress for more money. Whether Congress will appropriate it is a separate question.

The 20-Day Rule, in Practice

The statutory deadline of 20 business days is the central irony of modern FOIA practice. Almost no agency processes complex requests within that window, and almost no agency faces consequences for missing it. The GAO's transparency-and-accountability blog post from earlier this year notes that "between 2013 and 2022, the number of complex requests agencies processed more than doubled, while the proportion of complex requests processed within 20 days decreased" [gao.gov]. In other words: there are far more complex requests, and a smaller share of them gets processed on time.

The statute is not silent about consequences. Under 5 U.S.C. § 552(a)(4)(A)(viii)(I), an agency that misses its deadline forfeits the right to charge fees — unless "unusual circumstances" apply and more than 5,000 pages are necessary to respond. The FOIA Improvement Act of 2016 codified that fee-forfeiture rule explicitly [congress.gov]. In practice, agencies generally do not charge fees on lapsed requests anyway, so the penalty has little bite. The bigger consequence — and the one most requesters never invoke — is that missing the deadline triggers a "constructive exhaustion" of administrative remedies, allowing the requester to file suit directly in federal district court without first appealing internally [justice.gov].

This is what makes the FOIA system functionally a two-tier system. The first tier is the administrative process: file with the agency, wait, appeal if denied. For most requesters, that tier never produces records. The second tier is litigation: file a complaint in federal court invoking the constructive-exhaustion provision and force a judge to set a production schedule. That tier works — but it requires a lawyer, court fees, and the willingness to sue the federal government. The result is a transparency law that effectively serves litigation-capable institutions (news organizations, advocacy groups, large corporations) and frustrates everyone else.

Exemption Abuse: The 7(E) Problem

If a single number captures the modern FOIA pathology, it is the 335,399 invocations of Exemption 7(E) at DHS in one fiscal year. Exemption 7(E) shields "records or information compiled for law enforcement purposes" if disclosure "would disclose techniques and procedures for law enforcement investigations or prosecutions" [justice.gov]. The exemption was designed to protect sting-operation playbooks and undercover tradecraft. It is now used to redact, among other things, the existence of database systems, search-query syntax, and entire pages of officer training manuals that any private security consultant could buy off the shelf.

The Office of Government Information Services published a "FOIA Ombuds Observer" article in 2024 — the agency's first such piece of the year — devoted entirely to Glomar responses, the formal "neither confirm nor deny" reply that agencies use to refuse even acknowledgment that records might exist [archives.gov]. The Glomar doctrine, named after the Hughes Glomar Explorer ship in a 1976 case, has spread far beyond its national-security origins. In FY2024, OGIS noted that questions about Glomar were "frequently seen in our individual cases" — frequent enough to merit a dedicated explainer [archives.gov].

The 2016 foreseeable-harm standard was supposed to constrain this. It has not, as a structural matter, because Justice Department guidance still permits "categorical" exemption claims for entire classes of records — meaning an agency can argue, in a single sentence, that disclosure of "any" record of a particular type would harm a protected interest, without articulating harm for each redaction [justice.gov]. The Justice Department's own guidance, titled "Applying a Presumption of Openness and the Foreseeable Harm Standard," instructs agencies to "explain the basis" for withholding — but the explanation can be generic. Federal district courts vary widely in how strictly they enforce the standard.

The Appeals System That Cannot Catch Up

A FOIA requester who receives a denial — full, partial, or by silence — has the right to appeal administratively under 5 U.S.C. § 552(a)(6)(A)(ii). The same 20-business-day clock applies on the appeal side. The Department of Justice's Office of Information Policy is itself the appeals authority for DOJ components. According to the 2026 Chief FOIA Officer Report, OIP's oldest pending appeal at the end of FY2025 dated from January 2025 — nearly a full calendar year unresolved at a single internal-appeals office [justice.gov]. If the Department's own appeals office cannot meet a 20-day standard on its oldest case, the cascading effect on every other agency that watches DOJ as the policy benchmark is predictable.

Successful appeals are rare. The annual reports show that across the government, the most common appeal outcome by far is "affirmed on appeal" — meaning the agency's denial stands. Modifications and full reversals together typically account for under 20 percent of closed appeals at most components [foia.gov]. Requesters who fail at the appellate level have two further options: mediation through OGIS at the National Archives, which is voluntary and not binding; and a federal lawsuit, which is binding but expensive.

OGIS: The Quiet Office That Sometimes Works

The Office of Government Information Services, housed inside the National Archives, is the federal FOIA ombudsman. It was created by the 2007 OPEN Government Act and given expanded duties — particularly mediation — by the 2016 FOIA Improvement Act [congress.gov]. OGIS does not have subpoena power. It cannot order any agency to release records. What it can do is mediate.

The numbers say the mediation works, when requesters use it. According to the OGIS 2025 Annual Report for FY2024: the office handled 6,057 cases in fiscal year 2024 and closed 6,098. It initiated 88.5 percent of those cases within ten days of receipt, and it resolved 98.9 percent within ninety days [archives.gov]. Those are response-time numbers most line agencies cannot match for their own FOIA processing.

OGIS's role is to make a phone call to the agency, ask what is going on, and sometimes to negotiate scope, fees, or a production schedule. It does not replace the agency's decision-making — but it can, and frequently does, unstick a stuck request. The 2024 OGIS Annual Report records the office's caseload as continuing to grow alongside the rest of the system. For FY2025, the OGIS director told the Chief FOIA Officers Council that the office "continued to see over 6,000 requests for assistance" [foia.gov].

What 2025 and 2026 Reforms Actually Look Like

The 119th Congress, which convened in January 2025, has not passed a FOIA-reform bill. Searches of Congress.gov for FOIA-specific legislation in the current Congress turn up topical bills — most notably the Epstein Files Transparency Act (H.R. 4405), which would require the Department of Justice to publish all unclassified records related to that single investigation in a searchable, downloadable format [congress.gov]. There is, as of this writing, no comprehensive FOIA-reform package on the table. The GOOD Act (H.R. 1515) addresses agency guidance documents, not FOIA processing [congress.gov].

The Justice Department's 2024 Guidance on Backlog Reduction Plans remains the operative federal-government framework for shrinking the queues. The guidance, finalized after a 2024 best-practices workshop, requires agencies with more than 1,000 backlogged requests to submit annual plans through their Chief FOIA Officer Reports. The plans must include "existing resources, proposed solutions, potential challenges and strategies to overcome them, timelines, and goals" [justice.gov]. GAO's most recent assessment, however, found that agencies' plans "often lacked key elements ... such as goals and milestones for tracking progress," and recommended OIP "help agencies improve the usefulness of their plans by providing additional guidance" [gao.gov]. Whether OIP will tighten the template in the next reporting cycle is unclear.

The technology piece is the area where movement is real. The 2026 Chief FOIA Officer Reports from DOJ, EPA, and several other agencies describe pilots and deployments of artificial-intelligence tools for document review and redaction. The Justice Department's Office of Information Policy is updating the search tool at FOIA.gov to use machine-learning encoding models [justice.gov]. The FBI has built what it calls an Automated Vaughn Index — software that generates the document-by-document withholding justifications that have to accompany large litigated productions [justice.gov]. ATF has procured a new request-management system with "an array of AI tools" [justice.gov]. EPA's National FOIA Office has begun using generative AI for intake triage and initial assessment [epa.gov].

None of this is fast enough to close the gap. The receipts curve has been bending upward since 2020. The processing curve has been bending upward too, but more slowly. Until the second curve overtakes the first, the backlog will keep growing — and the average wait will keep lengthening for everyone in the queue.

The Litigation Pressure Valve

Litigation is where the system actually delivers — when the requester can afford to litigate. Federal-court FOIA dockets show the consistent pattern: a private requester, often joined by a lawyer working pro bono or on a fee-shifting basis, sues an agency under 5 U.S.C. § 552(a)(4)(B), the provision that gives federal district courts jurisdiction to enjoin agencies and order production of "any agency records improperly withheld." Once a complaint is filed, agencies that have ignored a request for years tend to find production capacity within weeks.

The Justice Department's FOIA litigation statistics show hundreds of new FOIA suits filed in federal district courts every year, with the District of Columbia handling the largest share. The fee-shifting provision at 5 U.S.C. § 552(a)(4)(E) — which allows prevailing requesters to recover attorney's fees and costs — is the structural reason private litigation works as a backstop. Without it, individual requesters would have no economic incentive to sue, and agencies would face no consequence for ignoring the statutory deadline. The provision is, in effect, the only enforcement mechanism the statute has.

The result is a two-tier FOIA system: litigation-capable requesters (newsrooms, nonprofits, law firms) extract records within months; unrepresented requesters wait years. The backlog described in this article is overwhelmingly the second group's experience.

What Requesters Can Actually Do in 2026

The federal FOIA system, as broken as it is, still produces records — millions of them every year. The question for any individual requester is how to navigate the queue without joining the eight-year-old club. The following is drawn from the Justice Department's own guidance and the language of the statute, not from advocacy material.

1. Identify the right agency first

Each agency processes its own requests. There are more than 100 federal departments, agencies, and components, and a request sent to the wrong one will either be transferred (slowly) or rejected. FOIA.gov maintains a wizard that helps requesters identify the correct destination based on the records sought [foia.gov]. Sending one request to ten agencies in parallel is not a strategy; it is a way to multiply your backlog count.

2. Search the existing reading room first

Section 552(a)(2) requires every agency to maintain an "electronic reading room" of frequently-requested records — material requested three or more times must be posted proactively [justice.gov]. The DHS, DOJ, EPA, and FBI reading rooms are searchable and often contain exactly what a new requester would have asked for. Checking the reading room first saves the requester months and saves the agency a duplicate processing step. The 2016 FOIA Improvement Act formalized this "rule of three" — a record requested three or more times must be made available for inspection in electronic format [congress.gov].

3. Narrow the scope before you file

Complex requests are the requests that age out. The DHS report's 159-day average processing time for complex requests should be a warning to every requester. A request for "all emails between X and Y from 2018 to 2024 containing the words A, B, or C" will almost certainly become a "complex" request that triggers the unusual-circumstances extension and gets routed to a slow queue. A request for a specific, named document — a particular inspector-general report, a particular contract file, a particular policy memo — moves faster.

4. Apply for a fee waiver — if you qualify

Under 5 U.S.C. § 552(a)(4)(A)(iii), "documents shall be furnished without any charge or at a charge reduced below the fees ... if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester" [justice.gov]. Journalists, academic researchers, and non-commercial requesters routinely receive fee waivers. The application is one paragraph explaining how the records will serve public understanding. EPA decided fee-waiver applications in an average of five days in FY2025 [epa.gov]. Most agencies are faster on fee waivers than on the underlying request because the determination is small and discrete.

5. Apply for expedited processing — if you have a compelling need

Under 5 U.S.C. § 552(a)(6)(E), an agency must grant expedited processing if the requester demonstrates a "compelling need," defined in the statute as either (i) an "imminent threat to the life or physical safety of an individual" or (ii) when a requester "primarily engaged in disseminating information" has "urgency to inform the public concerning actual or alleged Federal Government activity" [justice.gov]. Journalists working on time-sensitive stories regularly qualify. The agency must decide the expedition request within ten days; the underlying records request still moves slowly, but moves "as soon as practicable" once expedition is granted.

6. Use the FOIA Public Liaison

Every agency is required to make a FOIA Public Liaison available to "assist in the resolution of any disputes between the requester and the agency" — a separate statutory role from the appeals office, and one specifically designed to handle requester complaints about processing delays [justice.gov]. The Public Liaison cannot order anything to happen, but the office is supposed to be reachable, responsive, and able to provide status updates. The liaison's contact information appears on every agency's FOIA reference guide.

7. If the agency misses the 20-day deadline, you can sue

This is the most important and least-used right in the statute. Under 5 U.S.C. § 552(a)(6)(C)(i), if an agency fails to meet the statutory time limit, "the person making such request shall be deemed to have exhausted his administrative remedies" — a doctrine known as "constructive exhaustion" — and may proceed directly to federal district court [justice.gov]. The complaint is simple: agency received request, twenty days passed, no determination made, court should compel production. The Justice Department's FOIA Reference Guide notes that the requester may also seek attorney's fees under § 552(a)(4)(E) if "substantially prevailing" in the litigation [justice.gov]. Fee-shifting transforms FOIA litigation from a luxury for the wealthy into a tool the merely persistent can use.

8. Mediate through OGIS if litigation is not viable

For requesters who cannot afford to sue or who prefer to keep the relationship cooperative, OGIS mediation is free, voluntary, and has a 98.9 percent ninety-day resolution rate [archives.gov]. OGIS will not produce records, but it will get on a call with the agency and ask them to explain themselves.

What "Working" Would Look Like

Every component of FOIA's failure has, somewhere in the federal government, a working counter-example. EPA's 99.7 percent closure-to-receipts ratio proves the math can balance [epa.gov]. OGIS's 98.9 percent ninety-day resolution rate proves a federal office can hit response-time benchmarks [archives.gov]. The Justice Department's 50-year anniversary celebration of the statute, marked at Justice.gov/OIP, includes a serious internal acknowledgement that the system is at a strain point and that agencies need to do more with the resources they have [justice.gov].

The mechanical fixes are knowable. They include: (1) staffing FOIA offices proportionally to receipts, which most agencies do not — DHS in particular is structurally understaffed relative to its 911,000-request annual volume; (2) deploying AI document-review tools at scale, which DOJ, EPA, and the FBI are beginning to do but which require investment Congress has not consistently appropriated; (3) tightening OIP's backlog-reduction-plan template to require measurable milestones, which GAO has recommended [gao.gov]; (4) requiring proactive disclosure of categories of records currently treated as request-only, which the 2016 Act began but did not finish [congress.gov]; and (5) statutorily tightening the foreseeable-harm standard to require record-by-record articulation, which would require new legislation Congress has not introduced.

The political fix is harder. FOIA is a counter-cyclical accountability tool: the requests an administration most wants to slow are the ones most embarrassing to itself. Every administration of both parties has been accused, with varying degrees of evidence, of slow-walking politically-sensitive FOIA requests. The structural fix, the one that does not depend on who is in power, is the staffing-and-technology answer GAO has been writing variations of since at least 2018 [gao.gov]. The technology piece is finally moving. The staffing piece is not.

The Democracy Argument

The Freedom of Information Act is one of the few statutes in the federal code that treats government information as the public's property by default and as the agency's secret only by exception. The foreseeable-harm standard, the presumption of openness, the 20-day deadline, the fee waiver for public-interest disclosure, the expedited-processing provision for compelling need — these are not procedural niceties. They are the operating system of a self-governing republic. FOIA.gov's landing page puts it more simply: "The basic function of the Freedom of Information Act is to ensure informed citizens, vital to the functioning of a democratic society" [foia.gov].

The 2026 numbers say the operating system is overloaded but not failed. 1.6 million requests were processed in fiscal year 2025. That is not nothing. EPA closed essentially every request it received. OGIS hit its response-time benchmarks. The Justice Department's Office of Information Policy is publishing transparent data about its own failures, which is itself a kind of progress. The pieces of a working system exist inside the broken one.

The eight-year-old request the retired auditor is still waiting on, however, has not moved. Neither have the 110,271 sitting at Customs and Border Protection. Neither has the oldest unresolved appeal at the Justice Department's own appellate office, the one filed in January 2025. The promise of 5 U.S.C. § 552 is that any person can ask any agency for any record and get a substantive answer in twenty business days. The reality of 5 U.S.C. § 552 in 2026 is something else. The gap between the two is the work of a generation.