Federal government agencies received more Freedom of Information Act requests last year than ever before, the Justice Department reported last week, reflecting a steadily growing demand for access to government information.
Nearly 790,000 FOIA requests were received in FY 2016, an increase of more than 10% from the year before. The majority of requests were submitted to the Departments of Homeland Security, Justice, Defense, Veterans Affairs, and the National Archives.
Approximately 760,000 requests were processed throughout the year (including denials, and administrative or procedural closures). Requests were fully granted in 23.1% of the the cases, and partially granted in 36.8% of them.
The total estimated cost of implementing the FOIA in 2016 was more than $500 million. Fees collected from requesters recovered less than 1% of that amount, the DOJ report said. See Summary of Fiscal Year 2016 Annual FOIA Reports Published, DOJ Office of Information Policy, May 3.
Almost everyone involved with the FOIA — requesters as well as agencies — seems to be dissatisfied with the way the process works. It can be excruciatingly slow, with response times often counted in years. Decisions to withhold information frequently appear arbitrary, excessive or otherwise inappropriate. The system is inequitable, as super-users who file hundreds or thousands of requests (and those who are able and willing to litigate their requests in court) consume disproportionate amounts of government resources, putting more occasional requesters at a disadvantage. And so on.
These are mostly complaints that the FOIA has failed to live up to expectations.
A deeper criticism would be that the FOIA process as it currently exists is not simply inadequate, it is positively counterproductive.
“FOIA not only fails to deliver on ostensible goals such as participatory policymaking, equal access to information, and full agency disclosure, but also has evolved to subvert some of these goals as well as other public law values,” writes David E. Pozen of Columbia Law School in a blistering new critique.
FOIA “systematically skews the production of information toward commercial interests and facilitates powerful antiregulatory agendas. The inadequacies of FOIA’s original design have been exacerbated by external developments, including the decline of the traditional news media and the rise of hyper-adversarial watchdog groups on the right. Our veneration of FOIA has blinded us to the politics of FOIA.”
“The most promising path forward,” he suggests, “involves displacing FOIA requests as the lynchpin of transparency policy and shoring up alternative strategies, above all affirmative disclosure frameworks that release information in the absence of a request.”
Counterexamples and counterarguments will likely occur to many readers of his article, though the author has anticipated many of those. One possible conclusion that might emerge from Pozen’s thoughtful critique is that while FOIA is still needed to pursue contested areas where government is reluctant to disclose information, it is poorly suited to serve as the primary foundation or anchor of open government.
See Freedom of Information Beyond the Freedom of Information Act by David E. Pozen, University of Pennsylvania Law Review, vol. 165, pp. 1097-1158, 2017.
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