More needs to be done to fix FOIA

By Alfred J. Lechner, Jr. | July 06, 2016

Having just celebrated its “golden” 50th anniversary this Independence Day, the Freedom of Information Act (FOIA) is in desperate need of reform. President Obama issued a memorandum a day after his inauguration directing that the FOIA “should be administered with a clear presumption: In the face of doubt, openness prevails.”  Instead, Obama administration agencies have sought to delay FOIA document production and taken advantage of FOIA loopholes to keep the public in the dark when disclosure of government information is most beneficial.  As described in the 2016 House Committee on Oversight and Government Reform report, “FOIA Is Broken,” agencies routinely “overuse and misapply exemptions,” create policies “designed to deter requesters from pursuing requests and create barriers to accessing records.”

Bipartisan efforts in Congress to amend FOIA, which the president supports, reaffirm the importance of this essential tool for democratic governance and accountability.  In June, the FOIA Improvement Act of 2015 (S. 337) passed both the House and the Senate and the president signed the bill into law last week.

The FOIA Improvement Act ultimately aims to codify a “presumption of openness” by amending the FOIA to state that unless the agency “reasonably foresees” that disclosure would cause identifiable harm to an interest protected by an exemption, or if the disclosure is prohibited by law, the material should be released. Under the bill, agencies will be required to make records available in an electronic format and there will be an expanded and codified role for a more independent Office of Government Information Services.  These are commonsense ideals for a more open government. The primary principle underlying FOIA when it was signed into law a half century ago was to “hold the governors accountable to the governed.”

Unfortunately, the broad language in the FOIA Improvement Act does not address powerful agency disincentives to comply with and promote the goals of FOIA. The well-intentioned, yet undefined “reasonably foresee” standard may result in years of litigation until its transparency goal is achieved.  Courts will rule upon the application of this standard after viewing documents behind closed doors.  Such in camera review, in which the court reviews the documents in secret without disclosure to the opposing party, is antithetical to our adversarial system of justice; it places the judge in the awkward position of serving as both judge and advocate.

Fundamental problems with the FOIA will remain.  A recent study by the Associated Press (AP) found that the government, across agencies, was taking “longer to turn over files,” increasingly claiming that it could not locate records, and had “refused a record number of times to turn over files quickly that might be especially newsworthy.”  The AP also found that the government “acknowledged in nearly 1 in 3 cases that its initial decisions to withhold or censor records were improper under the law — but only when it was challenged.”

My organization, the Cause of Action Institute, spent three years litigating two Federal Trade Commission misinterpretations of FOIA fee provisions that were superseded by the OPEN Government Act of 2007, a law that anticipated the increased scalability of the news industry.  Justice was finally achieved following appeal to the D.C. Circuit and an opinion authored by Chief Judge Merrick Garland.  Agency delay, misapplication of exemptions, and reliance upon outdated guidance contribute to the problems of a broken FOIA and result in unnecessary agency costs.

Congress periodically updates the FOIA, yet federal agencies continue to find new ways to delay or avoid compliance. For example, although text messages and instant messages involving official government business are records subject to the FOIA, some agencies simply make no effort to store, locate, or search for these records, depriving the public of appropriate information.  Others, such as the IRS, acknowledge that such messages are records subject to the FOIA, and yet do not preserve them long enough for a requestor to seek access to them. Cause of Action Institute has sued the IRS over an agreement it signed with its employee union to destroy instant messages sent between IRS employees. This is a violation of the Federal Records Act and makes FOIA requests for these communications impossible.

Agencies and their employees need to be incentivized to provide greater disclosure and penalized for non-compliance.  Agencies should recognize and reward employees who timely produce public records.  Congress should also enact penalties for agency non-compliance by making attorneys’ fees and costs mandatory if a FOIA requester has to sue to obtain records.

Since it was first enacted in 1966, Congress has passed major FOIA reform legislation in 1976, 1986, 1996 and 2007. The current decennial effort to amend the FOIA, while a welcome demonstration of congressional bipartisanship to promote Executive Branch transparency, is a missed opportunity to fix many longstanding, fundamental problems. Hopefully, the political will to solve these problems will manifest in time for the “FOIA Improvement Act of 2026.”

Alfred J. Lechner, Jr. is a former U.S. District Judge for the District of New Jersey, and President and CEO of the Cause of Action Institute, a District of Columbia non-profit oversight and transparency law firm.