Notice & Comment

FOIA Is Broken: New Chaffetz House Oversight Committee Report

The Freedom of Information Act (FOIA) is in the news this week, with a New York Times piece  that highlights Margaret Kwoka‘s terrific forthcoming Duke Law Journal article FOIA, Inc. an article Ibriefly blogged  about last week. Now the  House Oversight and Government Reform Committee, chaired by Representative  Jason Chaffetz (R-UT), released a staff report on its investigation into FOIA, concluding that “the FOIA process is broken and in need of serious reforms.”

The full report can be accessed here. Here’s the executive summary: 

Since President Lyndon Johnson signed the Freedom of Information Act (FOIA) in 1966, the FOIA request has been used millions of times for a myriad of reasons. FOIA is one of the central tools to create transparency in the Federal government. FOIA should be a valuable mechanism protecting against an insulated government operating in the dark, giving the American people the access to the government they deserve. As such, FOIA’s promise is central to the Committee’s mission of increasing transparency throughout the Federal government.

The power of FOIA as a research and transparency tool is fading. Excessive delays and redactions undermine its value. In large part, FOIA’s efficacy is limited by the responsiveness of the agency that receives and processes the request. On innumerable occasions, agencies have refused to produce documents or intentionally extended the timeline for document production to stymie a request for information. In many cases, American citizens find themselves frustrated by the total lack of response from the government they are asked to trust.

In light of numerous reports of delays and obstruction related to the FOIA process, the Committee sought feedback directly from FOIA stakeholders, including via an online portal where requesters submitted cases highlighting ineffective or inefficient FOIA processes. The Committee asked for examples of delays, abusive fees, inappropriate redactions, and other tactics frustrating the FOIA process. In a matter of weeks, the Committee received a plethora of responses.

The comments were enlightening. Members of the media described their complete abandonment of the FOIA request as a tool because delays and redactions made the request process wholly useless for reporting to the public. Experienced FOIA users shared “worst of the worst” examples and offered suggestions for reform. First-time or infrequent requesters, however, shared the most disheartening responses. Novice FOIA requesters were unprepared for the delay tactics and other obstacles to obtaining the information they were seeking. One 26 year-old freelance journalist wrote to the Committee about his first experience with FOIA, “I often describe the handling of my FOIA request as the single most disillusioning experience of my life.”

On June 2 and 3, 2015, the Committee explored the FOIA experience with two hearings involving more than fifteen witnesses. On the first day, journalists, media organizations, FOIA experts, and transparency advocates testified to the numerous burdens facing FOIA requesters. The next day, select agencies appeared before the Committee to explain barriers to effective and efficient FOIA compliance and what the Committee could do to improve the process.

This report draws on the testimony and comments received by the Committee to illustrate the barriers to access that citizens face with respect to FOIA. The examples call attention to the need for legislative FOIA reform. To that end, while oversight of FOIA and other transparency tools will continue, the Committee will simultaneously identify solutions and pursue needed legislative reform.

HT: Ed Richards, via the administrative law professor listserv.

[UPDATE 1/14: For FOIA geeks out there, I’d recommend The Deliberation Paradox and Administrative Law by Bill Sherman, which was just published in the BYU Law Review. As Bill explained the piece to me, “My thesis is expressed mathematically as: (FOIA laws + Open Meetings laws) / deliberative process = a mess.”]


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