Has the Freedom of Information Act lived up to its purpose?

Mar 13, 2023 by AFPF

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

Conceptionally, the Freedom of Information Act represents a valuable tool to advance democracy through the disinfectant of transparency. A statute that imposes on agencies a legal obligation to respond to any valid request for documents, FOIA empowers everyday citizens and good government groups alike to pierce the veil of secrecy that too often shrouds government agencies.

FOIA provides a vehicle to fact-check the government and delve deeper into the process by which agencies develop government policies. Its utility has led to a proliferation of watchdog groups over the last two decades, established for the express purpose of using FOIA to compel government disclosure, and a sharp rise in new FOIA requests.

Standing alone, however, the increased use of FOIA by an ever-expanding population of requesters fails to answer the central question of whether FOIA has lived up to its promise. Anecdotal evidence suggests it has not.

Delays lie at the root of the problem and neither FOIA’s mandatory timeframes for responding nor its expedition provision have curbed agencies’ excessive processing times.

Take, for example, a case recently brought by the Project on Government Oversight (POGO) seeking documents about efforts by Department of Homeland Security (DHS) Inspector General Joseph Cuffari to change and suppress findings from a report his office drafted on sexual misconduct by DHS law enforcement personnel.

In a May 10, 2022, letter to Cuffari, the chairs of the House Committee on Oversight and Reform and the House Committee on Homeland Security noted that reports of his role in censoring those findings “call[] into question whether you [Cuffari] are able to perform high-quality audit work with integrity, objectivity, and independence, and provide accountability and transparency over government programs and operations.”

Despite the urgency of POGO’s request, DHS ignored it and the requested expedition and only months after POGO filed suit provided the most basic information about the number of potentially responsive documents—a number it placed at more than 260,000. With DHS’s proposed processing schedule of 500 pages per month, it will take the agency 521 months, or more than 43 years, to complete processing. Self-evidently, this timeframe offers no hope for effective transparency.

Even delays of a few years can negate the effectiveness of FOIA. Citizens for Responsibility and Ethics in Washington filed a FOIA request with the Department of Justice on April 18, 2019, seeking documents pertaining to the views DOJ’s Office of Legal Counsel provided then-Attorney General William Barr on whether the evidence developed by Special Counsel Robert Mueller was sufficient to establish that then-President Donald Trump committed an obstruction-of-justice offense. Earlier that day Barr had testified before Congress that he had consulted with OLC and other DOJ lawyers before making a prosecutorial judgment that the president did not obstruct justice.

The District Court ordered DOJ to produce the requested OLC memo to CREW in a May 3, 2021, order denying DOJ’s motion for summary judgment. DOJ appealed, and in an August 19, 2022, opinion the U.S. Court of Appeals for the D.C. Circuit affirmed the district court’s decision.

A short while later DOJ finally released the requested OLC memo, which confirmed what CREW had suspected all along and what the district court’s in camera review of the memo had revealed: the consultation process between Barr and OLC had nothing to do with determining whether to charge the president with obstruction of justice because, under DOJ policy, a sitting president could not be charged criminally.

Instead, the memo offered advice on how the attorney general could spin and undermine the Mueller Report to rehabilitate and protect the president. This was an important judicial decision to be sure, but by the time the D.C. Circuit ruled both Barr and Trump had left office, making true accountability impossible.

For the average individual FOIA requester delays of this magnitude pose an insurmountable barrier. Lacking the resources or FOIA expertise, such requesters are left at the mercy of recalcitrant agencies.

Good government groups fare a little better; they are established with the intent of using the courts to compel agency compliance with FOIA. They have resident FOIA experts to inform and guide them through the FOIA process at both the agency and court levels. And they have a megaphone through their websites and collaborations with journalists to pressure agencies to disclose documents critical to public discourse. But even they are thwarted, as the two examples above illustrate.

How, then, can FOIA be improved to ensure its continued usefulness for our political society?

The statute needs real teeth. Agencies suffer few consequences for failing to comply with FOIA’s time requirements, so they have little incentive to appropriately fund and staff their FOIA operations. And many courts are complicit, accepting at face value agencies’ claims to need months or years to process a contested request.

One judge went so far as to blame nonprofit requesters for agency backlogs, suggesting the possibility of receiving attorney’s fees if successful motivates nonprofit requesters to file FOIA lawsuits because they “have little to lose.” Am. Center for Law & Justice v. Dep’t of Homeland Sec., 573 F. Supp. 3d 78, 84 (D.D.C. 2021) (Judge Trevor N. McFadden).

This suggestion is patently absurd and fails to recognize that in the majority of lawsuits nonprofit requesters recover no fees. But this open hostility to the transparency work that nonprofits undertake to ensure an informed citizenry illustrates the obstacles they face in addition to the inevitable delays.

Sunshine Week provides an opportunity to reflect on the success of FOIA and whether it has fulfilled its promise.

Certainly, there is much to celebrate: the countless news stories made possible by documents obtained through the FOIA; the increased awareness of the importance of government transparency; and the public recognition that knowledge gained from FOIA may be key to protecting and sustaining our democracy.

But this is no time to be complacent. In critical areas FOIA also has failed us with its interminable delays. Without statutory reform it is hard to see how we overcome this impasse. We requesters have done our part; it is now time for Congress to do its part by enacting amendments that ensure more timely compliance and adequate resources.

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

Anne Weismann is outside litigation counsel for nonprofit organizations and individuals seeking to bring greater accountability to the federal government. Previously she served as Chief Counsel and Chief FOIA Counsel for Citizens for Responsibility and Ethics in Washington, as well as the Executive Director of Campaign for Accountability. Before entering the nonprofit arena, Ms. Weisman served as the Deputy Chief of the Enforcement Bureau for the Federal Communications Commission and as an Assistant Branch Director at the Department of Justice. Ms. Weismann has received numerous honors for her transparency work, including induction into the FOIA Hall of Fame, is a frequent lecturer on transparency and ethics issues, and has testified numerous times before Congress on transparency issues. She received her B.A. magna cum laude from Brown University and her J.D. from George Washington Law School.