Over the past decade I've submitted hundreds of records requests to federal agencies through the Freedom of Information Act (FOIA). I've written extensively about the law, taught college students how to file requests, and evangelized the importance of having a statutory right to inspect public records.
I love FOIA. And I hate it. The federal FOIA law is broken and should be replaced with something better.
FOIA requests can take years to fulfill, unless you can afford to hire a lawyer and file a lawsuit. Agency FOIA officers routinely abuse exemptions to hide records. The process is difficult even for experienced reporters to use for newsgathering.
For example, Reason has been waiting more than two years for portions of a national FBI database of police use-of-force incidents. I submitted a FOIA request in July 2022, but the FBI currently estimates it will produce the records no sooner than November 2025. The FBI has never released any of the raw data from this database, which could shed light on police encounters around the country. Nevertheless, it will take at least three years to obtain public records that we are ostensibly guaranteed access to under FOIA, and even then the FBI might redact or withhold records to the point of uselessness.
Considering the possibility that I'm just bad at my job, I talked to one of the best in the game, Bloomberg News reporter Jason Leopold. He is likely the most prolific individual FOIA requester in the country. At the time of our interview, he had 4,748 pending FOIA requests at various federal agencies. Over the years he's uncovered everything from Hillary Clinton's private emails to the number of cans of vanilla Ensure the government bought to force-feed prisoners at Guantanamo Bay. Leopold told me he had just received 35 pages of records from the General Services Administration that he had first requested in 2017. He'd had to go through two rounds of appeals to get frivolous redactions removed.
"What's incredibly challenging for us as journalists is, how do you make use of records that are seven or eight or five years old?" Leopold says. "That's the problem."
This is not a system that is working well. It too often fails to live up to both the spirit and the letter of the law. And it's getting worse as the number of FOIA requests filed every year grows.
In FY 2022, the government-wide FOIA backlog surpassed 200,000 requests for the first time. A Government Accountability Office report attributed the backlog to "larger volumes of requests and more complex requests, among other challenges."
Presidential administrations have not given agency FOIA offices the resources to clear their backlogs. The result of this is that the only way to consistently and quickly get public records from agencies is to sue them—the practical effect of which is to jump a plaintiff to the front of the line, ahead of thousands of other requesters.
"FOIA these days just almost requires litigation to really move it and have a court be involved before I think an agency really takes it seriously," says Scott Amey, the general counsel of the Project on Government Oversight, a watchdog organization.
This is one of the reasons FOIA litigation has steadily trended up over the last two decades. Syracuse University's Transactional Records Access Clearinghouse reported that at the end of FY 2020, the number of FOIA lawsuits pending in federal district courts rose to 1,683, more than three and a half times the number of pending cases a decade ago.
Although it's been updated several times since it was first passed—most recently in 2016—FOIA is simply no longer up to the task of handling the volume and diversity of records being created by the government, the number of requests for those records, or the disputes between requesters and agencies withholding records in bad faith.
In fact, Leopold says FOIA compliance has gotten worse since the 2016 amendments, which were supposed to force agencies to operate under a presumption of disclosure and stop hiding records merely because they were embarrassing. Instead, Leopold says response times have gone up and FOIA offices have gotten stingier and stingier with what records they will release.
What would be better than FOIA?
An employee of a federal agency, who was sick of constantly having her email searched for records requests, once floated the idea to me of proactive disclosure: Just redact and release everyone's emails on a rolling basis.
It's not that crazy of an idea. When the Philippines was drafting its own freedom of information law, Amey was a consultant. He says he surprised many people there when he argued against copying the U.S. FOIA law. He told them, "You don't want our 40-year-old law because it has so many flaws in it."
"When they heard that, there were a lot of people whose jaws probably dropped and looked like I was off my rocker, but I still think that way," Amey says. "If I was in another country now that was fighting for the FOIA that we passed in 1966, I would say no. You use that as a jumping off point. With IT systems and moving from pencil and paper to electronic systems, I would promote more of a system that relies on proactive disclosure and make FOIA the exception to the rule rather than the rule."
The major problem for proactive disclosure would be reviewing and redacting all those records, but if reliable automated processes were developed, it could save hundreds of hours of FOIA officers' time and would likely result in at least no greater abuses than the current all-human routine.
Proactive disclosure could also reduce demand for some of the most common types of records requests, such as communications among bureaucrats and lobbyists. It would also train government employees in a mindset of transparency rather than secrecy.
This leads to another important plank of any new freedom of information law: enforcement. The current FOIA has no teeth. Agencies can flout the law as much as they'd like, and the only punishment is when a court awards attorney fees to a FOIA plaintiff's lawyer, which is hardly a punishment at all since it's taxpayers' money. Earlier this year, emails uncovered by a congressional committee showed a National Institutes of Health bureaucrat bragging to Anthony Fauci that one of the agency's FOIA officers had shown him how to secretly delete emails after they'd been requested.
Both Amey and Leopold say there should be enhanced penalties for federal employees who intentionally skirt the law or illegally destroy records. "Without any penalties for agencies essentially disregarding their legal obligations, we're stuck trying to figure out ways to work around it or to make it work for us," Leopold says.
FOIA enshrined into law the principles that the government's business is the public's business and that the public has a right to know its business. It was a noble effort and a groundbreaking law, but it ultimately left public records in the hands of the government for safekeeping because its drafters were stuck in an analog world. We now have the technology to make digital records available to everyone and still safeguard people's privacy. Now is the time to start building the framework for a 21st century freedom of information law.
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