The right to access government information is a foundational element of a democratic society, protected in the United States by the Freedom of Information Act, or FOIA. But agencies cannot be left to administer their transparency obligations unchecked; political motives and institutional protectionism will inevitably sway agencies to over-withhold information from the public. For that reason, FOIA delegates responsibility for oversight of transparency obligations to the judiciary, but courts have failed to provide meaningful recourse for violations, creating few incentives to comply with the law. Democratic accountability suffers from this massive and unchecked practice of government secrecy.
This Article calls for the creation of an independent administrative agency, styled as an information commission, to enforce transparency obligations. An independent information commission would be far superior to judicial review. A well-designed commission would increase the availability of review of agency decisions to withhold information from the public, the quality of that review, and the scope of enforcement activities needed to effectively tilt agencies toward open, transparent governance. Building on the literature on effective agency design, the Article suggests ways the commission could be structured to safeguard its independence and argues that such an institution is essential to protecting democracy.
Kwoka makes an elegant case for the creation of an independent commission to oversee agencies’ transparency obligations. In the current system, self-interested agencies respond to FOIA requests, and courts are tasked with enforcing agencies’ FOIA obligations. Kwoka makes a persuasive case that courts do a poor job in their assigned role, assuming that there is even litigation in the first place. An independent commission, Kwoka argues, could make outside review more practically available and more effective. It’s a beautifully crafted article that should appeal to those interested in government transparency and in agency design more generally.
The Ad Law Reading Room is a recurring feature that highlights recent scholarship in administrative law and related fields. You can find all posts in the series here.