Notice & Comment

No FOIA is an Island, by Heidi Kitrosser

*This is the second post in a symposium on Margaret Kwoka’s new book, Saving the Freedom of Information Act. For other posts in the series, click here.

Margaret Kwoka’s new book, Saving the Freedom of Information Act, is an impressive and important achievement. The book is grounded in the premise that the Freedom of Information Act (FOIA) was inspired by, and is best directed toward, the goal of facilitating public and journalistic oversight of American government. The problem, Kwoka explains, is that FOIA’s day to day uses overwhelmingly do not serve this end. Kwoka’s explication of this problem is remarkably detailed. Drawing largely on her own quantitative and qualitative research, she shows that only a small percentage of FOIA requests and responses involve the news media or other “oversight requesters,” such as academic researchers. (pp. 66-70) FOIA is dominated, rather, by “first-person” requesters and commercial requesters. (pp. 71-78) The former are individuals who seek information about themselves to obtain a benefit or resolve a dispute. (pp. 71-74, 80-115) The latter seek information to further their business interests or those of their clients. (pp. 74-79, 116-148) Kwoka does not dismiss these uses as unimportant; she stresses their value to requesters and their potential social utility. They do not, however, serve FOIA’s core oversight mission. To the contrary, they overwhelm the system, pushing journalistic and other oversight requests further back in line as agencies address the needs of first-person and commercial requesters, which are typically more routine and easier to fulfill. More so, FOIA does not serve first-person and commercial needs particularly well, because it was not designed to do so.

Saving the Freedom of Information Act does much more than meticulously document FOIA’s problems. It also proposes some promising solutions, and, perhaps most importantly, it makes the case that FOIA is worth saving. Kwoka wisely launches her defense of FOIA early in the book. This enables readers to appreciate at the outset why it is worth understanding where FOIA has gone wrong and devoting resources to fix it. Specifically, in the book’s second chapter—“FOIA as Oversight”—Kwoka explores the extent to which FOIA has worked to foster government oversight, enabling journalists, public interest organizations, and academic researchers to uncover important stories. (pp. 32-55) She demonstrates that oversight requests, while a small percentage of FOIA inquiries made and fulfilled government-wide, routinely help journalists and other researchers unearth stories that are important to the public. These revelations also form part of what Seth Kreimer has called the “ecology of transparency,” meaning that they trigger additional checks that themselves lead to new disclosures. (pp. 45-46) A series of FOIA-driven stories on EPA Administrator Scott Pruitt’s excessive security expenditures, for example, led EPA’s Inspector General (IG) to investigate. The IG ultimately found that “‘[f]ailure to properly justify the level of protective services provided to the Administrator has allowed costs to increase from $1.6 million to $3.5 million in just 11 months.’” (pp. 37-38) When it works, in short, FOIA in an invaluable oversight tool. It is worth saving.

Beyond its incisive, massively researched analysis of FOIA, Saving the Freedom of Information Act reflects thoughtfully on the federal government’s relationship to information more broadly. Indeed, one of the most satisfying features of Kwoka’s book is the fact that she takes the non-oversight informational needs currently served by FOIA very seriously. Among her findings, for example, is that immigration-related inquiries dominate first-person requests. (pp. 80-85) The individuals making such requests typically face very high stakes, including the prospect of removal from the U.S., and have little chance of prevailing without access to information that the government holds. (pp. 86-88) Lacking discovery rights, they turn to FOIA. The resulting glut of requests not only weighs down the FOIA system, it does not serve the requesters well. Lack of timeliness and incompleteness of records are routine and serious problems. (pp. 86-92) As Kwoka puts it, although FOIA is better than nothing for these requesters, it often fails them, “sometimes catastrophically.” (p. 92) FOIA’s problems thus partly reflect the federal government’s failure to serve many legitimate public access needs apart from the oversight interests toward which FOIA is directed.

In her concluding chapter, Kwoka writes that “[e]ach agency needs to begin to see information delivery as part of its core mission, to identify its principal information constituents, and to be given the authority and incentives to design systems somewhat bespoke to the agency to deliver information in sensible ways.” (p. 227) This strikes me as absolutely right. It also reflects the federal government’s wide-ranging role as an active and highly significant producer, collector, and steward of information. This governmental role raises important questions of law and policy, including what informational rights are owed to the people whom agencies are supposed to serve. As Kwoka documents, FOIA is an indispensable, if partial and imperfect piece of this effort.

Unsurprisingly for this constitutional law professor, Kwoka’s book also brought to mind the constitutional issues raised by the federal government’s ubiquitous and multi-faceted relationship to information. In First Amendment doctrine, for example, the Supreme Court increasingly has relied on the government’s role as information creator and speaker to enable government employers to control the on-the-job speech of their employees and to restrict the speech of private actors operating through government programs or grants. Yet important considerations cut against this trend. For example, a government agency may deceive the public when it purports to ground its decisions in scientific expertise but instead hires or fires employees based on partisan loyalties, or issues public communications predominantly for political rather than scientific reasons. Similarly, the Supreme Court’s widening embrace of unitary executive theory poses important questions about the extent to which the federal government will continue to benefit from the expertise, and the informational output, of civil servants.

The First Amendment also plays an interesting, albeit limited role in establishing some baseline rights of public access to certain governmental proceedings, particularly criminal trials. Much of the discussion about this area of the law has centered on whether the judiciary, as opposed to the legislature, is well-suited to the task of crafting public access rights. Justice Stewart famously summarized his own thoughts on the matter, writing that “The Constitution . . . is neither a Freedom of Information Act nor an Official Secrets Act.”

In urging policymakers and courts to save FOIA partly by looking beyond FOIA, Kwoka makes a vital contribution to the many ongoing conversations regarding the federal government’s complicated relationships to information. Grounded as it is in meticulous research and analysis, Kwoka’s book offers us much firmer ground to stand on in evaluating the future of FOIA, and the law and policy of government information more broadly.

Heidi Kitrosser is the Robins Kaplan Professor of Law at the University of Minnesota Law School and the Jack N. Pritzker Visiting Professor at Northwestern University Pritzker School of Law. Her scholarship focuses on the constitutional law of federal government secrecy and on separation of powers and free speech law more broadly.

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