FOIA and the Invigoration of Public Interest Groups

Mar 15, 2023 by AFPF

This post was written by Bernard W. Bell 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 has had transformational impacts. This short essay focuses on one — FOIA’s invigoration of public interest groups.

Elections play a critical role in ensuring democratic accountability. However, electoral accountability is infrequent and imprecise.

Elections often hinge on the public’s general assessment of elected officials (or perhaps two or three major issues), rather than on the numerous specific actions taken by elected officials, or the administrative officials accountable to them.

Thus, the mechanisms for influencing and persuading elected and appointed officials between elections is also critical to democratic governance.

Historically, business groups and economic interests subject to regulation have lobbied elected officials and administrative agencies armed with information such groups have at their disposal. Much regulation involves such entities’ practices and must take into account regulatory impacts upon their operations. Information regarding such matters is often critical to regulators.

Possessing such information, which often frames agency debates about regulatory decisions, gives regulated entities and affiliated interest groups significant advantages in seeking to influence agencies.

Indeed, such advantages may provide one explanation for the phenomenon known as “agency capture,” where agencies appear to regulate in ways that benefit regulated entities rather the intended regulatory beneficiaries, i.e., those the regulatory program was established to protect.

Groups representing regulated entities and similar economic interests are, no doubt, empowered by FOIA. But other groups, many which formed in the years after FOIA’s initial enactment, have been empowered by FOIA as well.

In particular, FOIA empowers public interest groups that champion various interests or perspectives of the broader public. The diverse constellation of such groups, which reflect a range of ideological perspectives, includes:

The Electronic Privacy Information Center (EPIC)
The American Civil Liberties Union (ACLU)
Judicial Watch
Citizens for Responsibility and Ethics in Washington (CREW)
The Center for Biological Diversity
The Democracy Forward Foundation
The American Center for Law & Justice

Such groups regularly use FOIA to obtain information regarding government activities that may otherwise remain obscure and use such information for a variety of purposes. These purposes include:

(1) Publicizing regulatory failures or government inefficiency or improprieties
(2) Lobbying administrative agencies or members of Congress for policy changes
(3) Engaging in litigation to prevent agencies from exceeding their authority or failing to faithfully protect beneficiaries of the applicable regulatory regime

Such regulatory beneficiaries might include consumers, product users, airline passengers, investors, individuals subject to discrimination, and members of the public endangered by environmental degradation, to name a few.

Of course, strident criticisms have been advanced regarding the quantity and nature of FOIA requests submitted by nonprofit organizations. This broader category of organizations includes universities and university-affiliated organizations as well as all interest groups (even those that champion particular economic interests).

But much of the criticisms’ focus appears to be on politically motivated interest groups. In one view, nonprofits are repetitious filers of overly broad requests designed to “dig up dirt” on agency policies and the people behind them, so as to frustrate agencies’ pursuit of their legitimate missions.

For a recent judicial expression of such concerns, see Judge Trevor McFadden’s decision in American Center for Law and Justice v. Department of Homeland Security, 573 F. Supp. 3d 78 (D.D.C. Nov. 10, 2021). By Judge McFadden’s count, nonprofits “accounted for 56% of all FOIA lawsuits filed nationwide in 2018.”

These criticisms appear to be excessive.

First, the percentage of requests from nonprofits is surely significantly lower than Judge McFadden suggests by his focus on FOIA lawsuits.

A recent study of FOIA requests found that business entities submit 39% of requests. Individuals submit 20.1% of requests. Law firms make 16.7% of requests. Combining nonprofit organizations and university requesters, only 12% of requests come from “nonprofits.” Media entities accounted for another 7.6% of requests.

More research is necessary to determine the cause of the discrepancy between the percentage of FOIA requests from nonprofits and the percentage of FOIA lawsuits brought by such entities.

Second, nonprofits’ FOIA requests appear to be appropriate in many cases, and nonprofits are often successful in litigation contesting denials of their FOIA requests.

I’ll provide just a few examples of information resulting from meritorious requests.

CREW has done important work in seeking to maximize public access to opinions of the Department of Justice Office of Legal Counsel, which set forth interpretations of the law that constrain agencies and even the president.
The Reporters Committee on the Freedom of the Press obtained documents regarding the FBI’s impersonation of reporters as an investigative technique.
The Trea Senior Citizens League used FOIA to obtain documents related to the meaning of a totalization agreement with Mexico, which would provide for the payment of U.S. Social Security benefits to eligible Mexican nationals (an agreement which could have gone into effect within sixty days of being submitted to Congress).
The Natural Resources Defense Council (NRDC) has used FOIA to secure release of the then-current version of the computer program the EPA used to forecast the likely responses of automakers to proposed EPA greenhouse gas emissions standards.
The American Immigration Lawyers Association (AILA) has used FOIA to obtain information on the inspection and admission process for entry into the United States from U.S. Customs and Border Protection.

For a full response to Judge McFadden’s concerns about nonprofits FOIA requests, see my post at the Yale Journal on Regulation’s Notice & Comment blog entitled “Are Non-Profit Organizations’ Records Requests Ruining FOIA?.”

No doubt a mix of complex forces has catalyzed the emergence of a greater number of public interest groups in the years since FOIA was enacted, and led to their current place in our political and policymaking system.

I certainly do not claim that FOIA is solely or even predominantly the reason for such developments. Nevertheless, such groups’ successful use of FOIA to gain, publicize, and use government information invigorates their efforts to influence government policy.

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

Bernard W. Bell is Professor of Law and Herbert Hannoch Scholar at Rutgers Law School (Newark Campus). He teaches Constitutional Law and Administrative Law, among other subjects. Professor Bell’s scholarly articles have appeared in several journals, including the Stanford Law Review, the Texas Law Review, the North Carolina Law Review, the Ohio State Law Review, and the George Washington Law Review. He is a frequent blogger on the Notice & Comment blog hosted by the Yale Journal on Regulation. Professor Bell received a B.A. cum laude from Harvard College and a J.D. from Stanford Law School, where he was notes editor of the Stanford Law Review. He clerked for Judge Amalya L. Kearse of the U.S. Court of Appeals for the Second Circuit and for U.S. Supreme Court Justice Byron R. White. From 1984 to 1994, he served as an Assistant United States Attorney in the Civil Division of the United States Attorney’s Office for the Southern District of New York.