During a recent hearing on the Freedom of Information Act (“FOIA”), several senators complained about how federal agencies fail to respond to FOIA requests within the statutorily required time-frame. Senate Judiciary Committee Chairman Chuck Grassley complained that, in some cases, agencies may go more than a decade without producing documents that Americans have a legal right to access. “No one can say with a straight face that FOIA always works as intended,” he said. One step that Sen. Grassley suggested could enhance open government is the finalization of a policy known as Release to One, Release to All. This policy, which Cause of Action Institute supports, would expand access to government records by requiring agencies to post publicly online all records they’ve disclosed in response to FOIA requests. Currently, FOIA documents are only released to the individual or group who filed the request, and agencies are only required to post the records for the public if the record has been requested at least three times.
These records have already been vetted and deemed to be acceptable for public release, so there is little risk of personal or classified information becoming public knowledge though broader release. When documents are only provided to the requester, it is possible that other individuals may submit duplicate requests, which can amplify the problem of backlogs and make it harder for agencies to get information to the public. If these documents were to be released to everyone, however, journalists and watchdog groups could easily access them. Journalists could report on information while watchdog groups and think tanks could access records helpful for their work. A free flow of knowledge would help facilitate ideas to make government more efficient, which is why transparency is an essential aspect for a free and open society. Additionally, there may be unseen and unpredictable benefits that could arise from a massive increase in the amount of government information made public; last year there were more than 800,000 FOIA requests processed.
Cause of Action Institute submitted written testimony for the hearing supporting finalization of the “Release to One, Release to All” policy. CoA Institute President John Vecchione wrote:
Congress has long recognized that frequently requested records should be proactively disclosed by agencies. In the FOIA Improvement Act of 2016, Congress directed that once a record has been requested and released three times, the agency must post the record in its electronic reading room. Release to One, Release to All simply takes this idea one step further and would have agencies release information to the public after the first FOIA request and production.
When questioned by Senator Grassley on why “Release to One, Release to All” has stalled under the Trump Administration, Melanie Ann Pustay, the director of the Justice Department’s Office of Information Policy, cited compliance with Section 508 of the Rehabilitation Act of 1973. Section 508 requires that all federal agencies make public information accessible to people with disabilities, which includes people who are blind. Pustay argued this would require that these documents be accessible through audio, which would require additional time and resources. Senator Grassley was skeptical, stating, “It doesn’t meet the common-sense test.”
Expanded access to government records under “Release to One, Release to All” is an important policy. Rather than forcing every American to jump through hoops and pay substantial FOIA fees to obtain public records and duplicating work for FOIA officers, finalizing this policy would enhance the flow of information and allow Americans to use this information to benefit the public.
Tyler Arnold is a communications associate at Cause of Action Institute.
