Saving Freedom of Information – Not Just the Act, by David Cuillier
*This is the fifth 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, again, hit it out of the park. With bases loaded.
Kwoka outdid herself in “Saving the Freedom of Information Act” by going deeper into this subject than anyone has dared.
Sure, it’s not entirely new to examine requester types through FOIA logs. In 2001, the Heritage Foundation, with just 2,285 requests, found that journalists constituted a small percentage of requests. The now-defunct Coalition for Open Government analyzed 6,439 FOIA requests in 2006 to reach similar conclusions. Max Galka collected and digitized 229,000 of them through FOIA Mapper in 2016, also finding similar results.
But Kwoka’s research took it to the next level, with exhaustive data collection work, even suing the Internal Revenue Service, to ultimately gather 73% of the 788,769 FOIA requests submitted in fiscal year 2016. That, in itself, says a lot about problems in FOIA – that many agencies refuse to provide such basic information as request logs. Importantly, Kwoka demonstrates how academic research works; how we build on each other’s labor to discover new knowledge, so that we can ask even more questions.
Kwoka, however, doesn’t stop with just laying out her findings and walking away. One of the many things I like about the book is that it offers potential solutions. It provides tangible ideas that can be applied by Congress to make the system better. This is true “Solution Research.”
Indeed, Kwoka is the kind of engaged scholar who applies research to actual change, whether it is testifying before Congress on ways to improve FOIA, or getting her hands dirty on the Federal FOIA Advisory Committee, helping craft recommendations in 2016-18 to standardize FOIA logs and release information more efficiently. The Process Subcommittee of the current term is addressing the issue of first-person requests that Kwoka raised, recently providing recommendations to the full committee in December.
So, thank you, Margaret, for writing the definitive book on FOIA requesters, particularly first-person requests. You answered many questions, and you raised many more that we all need to work to build upon. Such as:
Question 1: What is the status of public record requests at the local level? Do first-party requests clog the records clerk in-box at city hall? Do community journalists comprise a higher percentage of requests in local government than the federal level? Do citizens have difficulty getting their own children’s school files, city police reports, or property assessment records because they are forced to use antiquated public records laws, some of which were adopted as early as 1849? The U.S. has just one federal government, but 20,000 municipalities, 3,500 counties, and countless fire districts, school districts, and other local agencies.
Katherine Fink’s research found that journalists’ requests of state environmental agencies roughly mirrored Kwoka’s findings for the federal level. Virginia Hamrick also found that relatively few of the 16,318 requests submitted to state agencies in Florida were by journalists, or serve the public interest. Makes sense, given news organizations’ shrinking coverage of state government. But what about the local, local level? Many have studied it in various ways, and written about the problems in local government transparency, such as Christina Koningisor’s excellent portrayal of “Transparency Deserts.” The bread and butter of the nation’s 7,000 community weekly newspapers and other local television and online news organizations is local news, covering local government, and we can do more to examine how freedom of information is playing out at that level.
Question 2: Are first-person and commercial requests more valuable to a democracy and government oversight than journalists and freedom of information activists assume? Kwoka made it clear that first-person requests could have oversight value, and her focus was primarily on the records requests that clearly are of a personal nature, such as immigration A-File records. Yet, digging a little deeper, perhaps we can find enormous benefits to society from these requests. For example, a study of the text of 1 million federal public records requests in Mexico, regardless of who submitted the requests, showed that two-thirds of them fulfilled a public-accountability purpose. Further research could examine the types of requests – and the tangible impacts on society, good and bad.
Question 3: If first-party requests were shifted out of FOIA into a more streamlined, automated process, which would no doubt help those first-party requesters, would the request process work any better for journalists and other oversight actors in getting critical information from the government? The assumption is that the glut of first-person and commercial requests takes away time from FOIA offices in processing public-interest requests. No doubt there is truth to that, but would delays and other roadblocks continue for journalists as agencies figure out more sophisticated ways to manage the message and game the system? In my news reporting days, I can recall many agencies where I was the only records requester all month, but that didn’t stop the files from arriving long after deadline, or never at all.
No doubt, many other research questions come to mind from Kwoka’s book, and many of those will be answered in the future by diligent scholars, including you, the reader. If anything, we learn from Kwoka, like we have from David Pozen and other innovative sages, that we need to think beyond the law and processes that we know today, that we need to create new solutions outside of FOIA, including proactive release, automated processing for routine first-person requests, greater transparency of non-governmental institutions of power, and redoubled resources for helping people get the information they need to self-govern in a democracy.
Really, when you think about it, this is not about “Saving the Freedom of Information Act.”
It is about saving Freedom of Information.
David Cuillier, Ph.D., is an associate professor at the University of Arizona School of Journalism, president of the National Freedom of Information Coalition, editor of the Journal of Civic Information, and a member of the Federal FOIA Advisory Committee. He can be reached at firstname.lastname@example.org.