June 30, 2020
At a time when the foundations of our democracy are under attack and a raging pandemic has created a national crisis, the public’s need for information could not be greater. Yet the mechanism Congress created for public access to information about what our government is doing and why—the Freedom of Information Act—is broken. Agencies have abandoned the FOIA’s guiding principle of transparency and made compliance with the law their lowest priority.
For a nation facing a lethal pandemic and an urgent need for truthful information about how to stay healthy, this breakdown has real consequences and leaves critical questions unanswered. What is the status of COVID-19 testing? How effective are the panaceas the president touts, like bleach and hydroxychloroquine? When did the government know that masks help prevent the spread of the disease? What is our government doing to ensure widespread access to personal protective equipment? Information residing in federal agencies may hold the answers to such questions, but it remains inaccessible, at least through the FOIA.
The attorney general’s unleashing of unidentified federal law enforcement personnel on Americans protesting for racial justice also cries out for a level of transparency that the FOIA simply cannot meet in its present form. Attacking peaceful protesters and using the military and other armed forces to create a political photo op represent the grossest misuse of power. Yet efforts to gain information through the FOIA on who was involved and why are unlikely to succeed, at least in a timeframe that would be useful.
Problems with the FOIA have been mounting steadily over the last decade, but the past three years have accelerated its decline as demand for records increases and agency resources decrease. The COVID-19 pandemic pushed the FOIA over the edge. At a time when access to critical information may be the difference between life and death, the FOIA process must undergo a fundamental overhaul.
The current situation deviates radically from the letter of the law, and from Congress’ vision of the FOIA. Congress passed the law as a means for the public to know what its government is up to, which the Supreme Court has described as “a structural necessity in a real democracy.” Toward that end, the statute creates a right for any person to obtain access to federal agency records upon request. As envisioned and mandated by Congress, the FOIA would compel agencies to respond to such requests within a short period of time—initially 10 business days but extended to 20 business days in 1996 amendments to the law. If requesters demonstrate a “compelling need” for the records, agencies would expedite the requests, placing the requesters at the head of the processing line and presumably providing documents more quickly. Agencies would take full advantage of agency statutorily mandated “reading rooms” that house the most frequently requested documents and the policies and procedures that guide agencies in their dealings with the public. And perhaps most critically, the guiding principle would be disclosure, with agency reliance on exemptions to withhold information the exception, not the rule.
The reality falls far short. The FOIA’s command for a 20-business-day response is a fantasy; agencies almost never respond within two months, and for some the wait exceeds years, not days. Expedition, the mechanism Congress provided to quickly secure documents when the need is particularly acute or the public interest is especially compelling and time-sensitive, is no guarantee that the response time will be much shorter. Worse still, agencies wrongly apply and over-rely on the FOIA’s nine exemptions to withhold information that runs directly counter to the FOIA’s purpose of exposing to the public what an agency has done and why.
Under the Trump administration, the FOIA process in many agencies—like so many other agency processes—has been tainted by undue political influence. An administration that seems to have adopted “Just Say No” as its FOIA motto has led courts to question the legitimacy of withholding information that may cast the administration in a bad light, such as documents concerning the firing of former Acting FBI Director Andrew McCabe or still-secret portions of the Muller Report. Agencies like the EPA and the Department of the Interior have adopted formal and informal procedures that give political-level officials the authority to delay or overrule recommended disclosures. For requesters seeking to get to the bottom of politically motivated agency decisions, political intervention presents a barrier that often is overcome only by litigation. Unfortunately, most requesters lack the resources or expertise to sue the government for records.
The pandemic also has exposed the shortcomings of key agencies, including the FBI, the State Department and intelligence agencies, that were completely unprepared to process FOIA requests remotely when the federal workforce had to switch to teleworking. Other agencies, such as the Office of Management and Budget, used the pandemic as an excuse to divert resources from FOIA and postpone court-ordered processing deadlines. As a result, critical FOIA requests remain unanswered.
Even before the pandemic, federal agencies faced growing budget and staff shortfalls and were adopting questionable and even unlawful practices to discourage requesters from pressing their requests and to artificially limit the number of pending FOIA requests. Those efforts have increased significantly since the pandemic. The CDC, for example, now uses a form letter to respond to requests for email communications that claims the agency does not have to process the request unless the requester provides the specific email addresses to be searched. But the FOIA only requires that requesters reasonably describe the documents they seek, a requirement that has never been understood to include providing specific email addresses.
Congress has tried to address some of these problems. For example, in 2016, reacting in part to the CIA’s insistence that an unpublished agency history of the 1961 Bay of Pigs invasion still could not see the light of day, Congress amended the FOIA to include, among other things, a “foreseeable harm” requirement. With this new requirement agencies can withhold information only where the agency “reasonably foresees that disclosure would harm an interest protected by an exemption.” But the Department of Justice has taken a very narrow view of this reform, insisting it changes nothing and leaves agencies the discretion to invoke exemptions at will. Relying on this interpretation, agencies continue to overuse the FOIA’s exemptions to withhold information that would explain what the agency did and why—information that lies at the core of what Congress believed should be available to the public.
Agencies also have fallen far short technologically, using outdated methods to process requests. In many agencies FOIA personnel lack access to e-discovery tools that would greatly ease their processing burdens. At least some agencies continue to assert an inability to conduct agency-wide searches of electronic records. This should not be a problem for government agencies in 2020, but technological capabilities vary greatly from agency to agency and often serve as a huge impediment to requesters obtaining their requested records.
The FOIA unquestionably is broken, but is it beyond repair? Fixing it will require a fundamental change at the top of government leadership with an administration that not only voices a policy of disclosure and accountability, but also provides agencies with the tools to achieve that policy. The government as a whole must shift from a culture of secrecy and withholding to one of disclosure. Agencies must devote significant and sufficient resources to ensure timely processing of requests. And they must treat the FOIA as mission critical, not a responsibility that can be readily abandoned when meeting its requirements becomes inconvenient, or politically harmful. All of these are policy choices that an administration and agencies can make without requiring any legislative or regulatory changes. Congress, of course, also has a role to play such as amending the FOIA to ensure a balancing of interests that tips in favor of disclosure, but even without congressional action the executive branch can improve implementation of the FOIA in a way that operates as Congress intended.
Failure to act promises more of the same: administration decisions and policies shrouded in secrecy, with no public accountability. The past three years have demonstrated that we need a working FOIA for democracy to function well. Failure should not be an option.