Notice & Comment

FOIA As It Is—and As It Could Be, by Al-Amyn Sumar

*This is the fourth 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 a game-changing piece of scholarship. The core of the book is an empirical study of who is using the Freedom of Information Act and for what purposes. It is an unprecedented study, and its findings are startling. Although the problems are daunting, Kwoka lays out some considered, promising ideas that might just save FOIA.

And there is no doubt that FOIA needs saving. As Kwoka notes, journalists—the main group exercising the oversight function the statute was intended to serve—frequently do not find FOIA to be a powerful reporting tool. That is partly because agency resources have not kept pace with the ever-increasing influx of FOIA requests. The main consequence is delay: unless reporters are able and willing to sue (and many are not), they may have to wait months or even years for a request to be processed.

Even when the request is finally processed, the results can be less than satisfying. In my experience, most FOIA officers—whom I have found to be people operating in good faith—simply cannot give an individual FOIA request the time it deserves. They sometimes conduct superficial record searches. They may reject the request as not “reasonably described,” even when the records being sought are no mystery. Officers will occasionally just refer the request to another agency (ignoring their agency’s independent obligation to disclose responsive records) or send a requester a “still interested” letter, which generally warns that a request will be closed unless the requester objects within thirty days. And, of course, FOIA officers can take overly broad interpretations of exemptions and fail to segregate and release nonexempt material.

So the influx of requests has clearly put agencies under water—but who is filing all those requests, and what can be done about them? This is where Kwoka’s study comes in. Her painstaking analysis finds that the news media make up a tiny sliver of FOIA requesters, filing just 2.6 percent of all requests. (That is about a third of the figure reported by FOIA Mapper’s Max Galka in 2017.) Today the bulk of requests are filed by “first-person requesters,” a category Kwoka uses to refer to anyone seeking their own government files, and which itself consists of a diverse array of sub-groups. A much smaller but still sizable chunk of requests are filed by businesses and commercial entities, and many other requests come from “idiosyncratic requesters”—groups or individuals who have their own motives and defy easy categorization. As Kwoka tells us, these three broad groups are not necessarily the constituencies that FOIA’s architects had in mind, and the statute often does not serve them well. But she  persuasively argues that their uses of FOIA are largely legitimate, sometimes socially valuable, and often indisputably sympathetic.

The variegated nature of FOIA requesters complicates the task of saving FOIA. In the past, some have offered a simple solution: give media requests preferential treatment. And at the state level, legislative proposals to this effect have been made. In 2018, Ritchie Torres, then a New York City Councilor, proposed a bill that would have required city agencies to give expedited treatment to public record requests made by “professional journalists.” The proposal was criticized by good government groups as “inequitable and divisive,” and it ultimately went nowhere. At the federal level, some have made calls for agencies to relax the standard for affording “expedited processing” to requests filed by journalists. (Such processing is notoriously hard to obtain, even when the subject of a journalist’s request seems urgent.)

The issue with these proposals, of course, is that FOIA is a zero-sum game. Preferential treatment for the press means worse treatment for the other constituencies that, as Kwoka shows us, depend so heavily on FOIA: noncitizens seeking records from DHS in order to mount a defense in removal proceedings, employees needing their “charge file” from the EEOC in order to pursue discrimination claims aginst their employer, previously incarcerated individuals seeking medical records from BOP to obtain continuing health treatment, and many others. Making FOIA more accessible to the news media cannot come at the price of burdening groups like these.

But Kwoka demonstrates that it does not need to. She offers three big ideas that would improve FOIA’s operation to the benefit of all requesters: more routine affirmative disclosure of records by agencies, release of documents to individuals through pending administrative proceedings, and use of tailored processes (i.e., not FOIA) for dealing with certain routine document requests. These solutions are thoughtful, promising, and should be seriously explored by agencies and policymakers.

It’s not realistic to expect FOIA to work perfectly or exactly as it was intended. But Kwoka has shown us that saving the law is still within our grasp.

Al-Amyn Sumar is a newsroom lawyer at The New York Times Company.