*This is the introduction to a symposium on Margaret Kwoka’s new book, Saving the Freedom of Information Act. For other posts in the series, click here.
I am very pleased to kick off this two-week Notice and Comment symposium on Margaret Kwoka’s new book Saving the Freedom of Information Act. We have an excellent set of scholars and practitioners lined up to explore the implications of her work. There will be a new post each morning, and the collection in its entirety will be available here.
With this book, Kwoka provides a rich, empirically-grounded account of the Freedom of Information Act (FOIA) in practice more than a half century after it was enacted. Her descriptive findings are deeply troubling. Kwoka reviews dozens of FOIA logs to lay out in painstaking detail how infrequently the process is used to serve requesters acting in the broader public interest—media requesters, for example, or academics or non-profit advocacy organizations. (p. 66). Instead, she shows, the vast majority of requests are submitted by those seeking to utilize the process for their own individual ends.
The most concerning of those are the requesters who seek to circumvent a broken discovery process—who need copies of their own immigration, Social Security, disability, or other records to secure governments benefits or to use in proceedings against the government. Kwoka highlights the sheer number of individuals who must turn to a highly inefficient public records requesting process in order to pursue their cases and claims. (p. 81). In doing so, she starts off by telling a story about a broken process for retrieving records but ends up telling a much darker tale about a broken bureaucracy that too often fails the most vulnerable among us. Her chapters on immigration and other first-person requests ultimately serve as deep indictments of the agency adjudication process itself.
Of course, the problems do not end there. Kwoka also marches us through data demonstrating just how many requests flow from commercial entities seeking to profit from government records and information. And she offers us a tour of the various other, more colorful users of FOIA—the “idiosyncratic requesters” who siphon off enormous amounts of agency time and resources for sometimes unclear or unhelpful ends. These include vexatious requesters who use FOIA as a tool to harass government agencies and actors. (pp. 161-64). Such requesters pose a problem with no easy answer: restrictions against harassing or burdensome requests can be easily coopted to evade public scrutiny on a sensitive matter. Yet there is no doubt that these requesters can also impose significant costs—financial and otherwise—upon the government.
These rich descriptive accounts lead to a host of fresh insights. To offer one example—a somewhat happier one—Kwoka’s qualitative and quantitative accounts make vivid the extent to which the requesting process can operate not just as a bottom-up mechanism for the public to learn about the workings of government, but also as a top-down instrument for government actors to gain valuable information about the needs of the public. Kwoka’s account suggests that FOIA can operate as a method of public influence over agencies in ways that are not always obvious. It’s not just that the public can use the statute to obtain information that it then puts to work through other channels of democratic accountability—by reaching out an elected official, for example, or writing a newspaper article. In fact, the requests themselves can serve as a direct mechanism of public influence as well. They can alert an agency to an overlooked problem. And they can also persuade agency officials to take steps to better serve the public’s needs. Kwoka tells the story of how the EPA, for example, reduced a growing flood of requests for environmental assessments by building a mapping tool that allowed the public to search a variety of records associated with a specific property all at once. It even offered searchers a certificate to use as proof of due diligence. (pp. 187-88). These and other examples show how FOIA’s burdens can sometimes operate as a stick that the public then wields to compel better agency processes and responses.
These descriptive accounts are followed by a set of normative proposals that Kwoka suggests might help to ease these burdens and establish a process that better serves both the public and the government. Again, her arguments in favor of redesigning agency adjudications to provide easier and faster access to critical first-person records are especially persuasive. (pp. 201-14). Not only would these processes siphon off a vast number of FOIA requests, easing pressure on the government’s FOIA infrastructure and reducing lengthy backlogs, but they would also serve the individuals entangled in these various agency adjudications and other processes more fairly and efficiently. Kwoka’s book mounts a powerful case, one that I hope it will be read and utilized by policy-makers who have the power to ease the burdens the current system imposes on those seeking asylum, disability benefits, and other crucial forms of government assistance and relief. The stakes are too high for her suggestions to be ignored.
I’m grateful that Kwoka has written this book. And I look forward to the many excellent contributions to come over the next two weeks as we continue this exploration and celebration of Kwoka’s thorough, incisive, and troubling account of FOIA.
Christina Koningisor is an Associate Professor at the S.J. Quinney College of Law, University of Utah. Her scholarship explores the intersection of media law, constitutional law, and local government law, and has appeared in the Northwestern University Law Review, the University of Pennsylvania Law Review, and the Yale Law Journal.