Notice & Comment

Saving FOIA From Administrative Adjudication

*This is the third post in a symposium on Margaret Kwoka’s new book, Saving the Freedom of Information Act. For other posts in the series, click here. Saving the Freedom of Information Act: 9781108710893: Kwoka,  Margaret B.: Books

Margaret Kwoka has written a masterful book, Saving the Freedom of Information Act, which weaves together her pathbreaking empirical work with theory, doctrine, and practical policy proposals.* It is a must read for scholars of administrative law, public administration, and regulation, as well as other scholars who are interested in government accountability and transparency.

Part I of the book sets forth a powerful affirmative case for FOIA’s critical importance in the modern administrative state and democratic governance. Part II then presents her extensive empirical findings on how FOIA works in the real world, building on her prior work, including her articles FOIA, Inc. and First-Person FOIA. (For more on the former, check out Anne Joseph O’Connell’s Jotwell review.) This Part focuses on who uses FOIA, and the answer is that reporters and watch-dog groups are not the primary users. Instead, two other groups predominate. The first group consists of commercial services, underscoring the mismatch between FOIA’s transparency and oversight objectives and its commercialized implementation on the ground. The second consists of individual requesters for information about themselves. With respect to this second group, Kwoka is not dismissive of the important objectives this “first-person FOIA” advances, and in particular how it improves due process in agency adjudications. But she also details how utilizing FOIA mainly to improve administrative adjudication has certain costs, such as duplicating agency efforts and flooding out the government transparency goals that primarily motivated Congress to enact FOIA in the first place.

Part III of the book turns to the potential solutions to FOIA, Inc., and first-person FOIA. I want to focus on one set of reforms, covered in Chapter 11 entitled Redesigning Agency Adjudication. As Kwoka explains (at 201), “FOIA often serves as a stand-in for administrative discovery where no such procedure exists, or a method to obtain records needed to be able to apply for a particular agency benefit.” She then chronicles the various agency adjudication contexts where FOIA is often used, including in the immigration (both immigration court enforcement proceedings and USCIS benefits adjudications) and the tax (audits, collections, and penalties) contexts, among others. In many benefits, contexts, for instance, the agency processes suffer from when Kwoka calls (at 212) the “request-and-return” problem: “they require the application to produce documentation that the agency itself already has in its possession but that the applicant very well may not.”

Based on her extensive qualitative and quantitative empirical findings (highlighted in Chapter 11 but presented more fully in Part II), Kwoka argues (at 213) that we should “invest[] in redesigning agency procedures to include discovery, disclosure, or verification mechanisms, rather than simply leaving those resources in FOIA offices.” In a world of unlimited resources, this has to be true. And even in a world of limited resources (the one in which we live), Kwoka makes a compelling case that saving FOIA from agency adjudication is necessary to preserve and restore FOIA’s motivating purpose of government transparency and accountability. The harder questions are how to redesign the adjudication systems in an efficient and cost-effective manner and how to marshal the political will for reform. One of the benefits of tenure, however, is that we get to plant seeds and hope for a future political environment in which they can grow. In this book, Kwoka is planting some very important seeds, based on a deep inquiry into the empirical realities of FOIA usage today.

I’ll end my contribution to this book symposium on the same note that Kwoka ends her chapter on redesigning agency adjudication. She concludes with the brilliant observation (at 214) that “[w]e can learn, in some instances, where the administrative state’s relationship with constituencies has broken down by looking at FOIA.” In other words, Saving the Freedom of Information Act does not just provide a window into the problems with FOIA implementation today; this window also helps us see areas of the administrative state that are similarly in need of more scholarly attention and policy reform. Perhaps the political will to save FOIA generally is lacking today, but maybe there is more political will to address some of the problems in some of these federal agency programs that are threatening FOIA. Or as Kwoka puts it (at 214), “A fix to the underlying problem is also a fix for FOIA.”

Christopher J. Walker is the John W. Bricker Professor of Law at The Ohio State University.

* As a matter of disclosure, I note that Professor Kwoka joined our faculty here at The Ohio State University last year. I have been an avid reader and fan of her FOIA scholarship for years, long before she joined our faculty. But her joining our faculty, along with Professor César Cuauhtémoc García Hernández (and their family), has been one the professional highlights of my decade here at Ohio State.

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