Strengthening FOIA: Time for teeth

Mar 14, 2023 by AFPF

This post was written by David Cuillier for Americans for Prosperity Foundation’s 2023 Sunshine Week essay series on how government transparency and the Freedom of Information Act have transformed society.

The Freedom of Information Act’s failure is its greatest success. 

To be sure, FOIA has done some good. Transparency laws and practices reduce corruption, lead to cleaner drinking water, deter sex-offender recidivism, lower food service complaints, increase trust in government institutions, and help parents make better school choices for their children. Journalists like Jason Leopold wield the law effectively, bringing to light important issues critical for informed self-governance. For every dollar spent on public records-based journalism, society benefits $287. That is a significant return on democratic investment. 

But let’s face it, we know that public record statutes don’t work well. Government agencies operate more and more in secret, where requesters get what they ask for only 22% of the time and backlogs stymie timely response. Corporations have systematically carved out exemptions. Underrepresented communities are shut out of the process. Requesters face arbitrary copy fees, excessive delays, and unfounded redactions and denials. Public record laws can actually increase secrecy, or at least backslide after their initial launch. The courts are clogged with litigation, costing taxpayers more than $43 million per year. The U.S. FOIA’s strength is in the bottom half of the world – ranking 74th out of 136 nations. Experts say the system is broken, and that we need to start from scratch. 

A terrible state of transparency? Nay, I say! As the Merovingian stated in “Matrix Reloaded,” with every action comes reaction, cause and effect. That includes calls for more proactive release of records, streamlining first-person requests, and use of machine learning in retrieving and redacting records. In last year’s essay series, Ryan Mulvey and James Valvo suggested a new freedom of information court. All of that is outstanding, but it’s still not enough. 

It’s time we learned from FOIA’s past to create a better future. A key part of that, I believe, is implementing effective, fast and affordable FOIA enforcement, which is currently inconsistent and weak. 

It’s time to give FOIA teeth

We need to provide severe penalties against agencies for violation of the law, and provide enforcement power to the Office of Government Information Services (OGIS), or create a new independent agency with teeth. 

Not very nice, right? I’m sorry, but we know that humans operate more effectively with the threat of punishment – vinegar and the stick. Persuasion scholars know that authority wins over liking. That is the rationale for the social contract. The FOIA process is human-based, and record custodians wield discretion, regardless of the law. Max Weber always said that secrecy and information control is the natural state of bureaucracy. 

We know that legal threats work. Public officials are more compliant with public record laws when they are reminded of the repercussions of breaking the law and when they are posed with negative outcomes, such as shaming peer pressure. 

Look at some of the states that have the highest compliance with public record laws – Washington, Rhode Island, Illinois. What do they have in common? Mandatory attorney fee-shifting. When requesters are denied information, sue, and prevail in court, judges make the agencies pay the requesters’ attorney fees. That can hurt, especially for small agencies. Some states, like Washington, also levy hefty fines, which make public officials think twice before denying requests, especially when a penalty can threaten agency insolvency. Substantive penalties are needed for noncompliance of FOIA – so harsh that agencies will take the law seriously, and that will leave Congress no choice but to invest more resources in records processing. 

We also know that independent enforcement agencies – outside of the courts – work. 

Mexico has one of the strongest FOIA laws in the world (No. 2, to be exact), thanks in part to an independent agency that can hear requester complaints and force officials to cough up records without clogging the courts. Connecticut has had a similar system since 1975, and Pennsylvania has developed an effective office of public records that processes complaints quickly – most within 30 days. More than 80 nations have created enforcement mechanisms to facilitate transparency. 

We need similar mechanisms for U.S. FOIA 

Last year, the Federal FOIA Advisory Committee made six recommendations to Congress for strengthening FOIA enforcement, based on a report I crafted following our interviews with more than 40 experts: 

  1. Give OGIS (or a newly created independent agency) the authority to make binding decisions. An ombudsman agency is fine, but agencies do not have to follow its guidance, leaving requesters with no other recourse other than court. 
  2. Give such an agency the authority to review records in camera. How can OGIS or anyone else make an informed decision without seeing the records? 
  3. Direct courts to give extra weight to OGIS decisions. 
  4. Create a direct line-item budget for OGIS, or for another agency independent of the executive branch. Such an enforcement agency needs complete independence. 
  5. Increase OGIS’s budget. With just a dozen staffers, on a per-capita basis, OGIS is the least-staffed FOIA oversight agency in the world. That includes nations, states, territories, and cities. Mexico employs 696 people in its records office, Brazil 2,200. Even Pennsylvania has 21. 
  6. The National Archives and Records Administration should commission a cost-benefit feasibility study to investigate these ideas further. 

So, what has happened since those June recommendations? Not a lot. Funding is still being sought for a study to examine the feasibility of these ideas, and it is unlikely significant movement will be made until such a study is complete. 

But the conversation has begun. For the current advisory committee term, I am co-chairing a subcommittee of bright FOIA advocates and agency custodians to follow up on these recommendations, and others. We welcome input from the public, and participation at committee meetings. Make your voice heard. Take action. 

And with any luck, there will be reaction. 

Discover more thought-provoking essays on how government transparency and the Freedom of Information Act have transformed society. 

David Cuillier, Ph.D., an associate professor at the University of Arizona School of Journalism, is the incoming director of the Brechner Freedom of Information Project at the University of Florida, former president of the National Freedom of Information Coalition, and co-author of “The Art of Access: Strategies for Acquiring Public Records.” He can be reached at cuillier@arizona.edu 

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