Notice & Comment

Can FOIA Be Saved?, by Mark Fenster

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

At the risk of reducing academic sub-fields to stereotypes, scholarship on open government laws in the legal academy appears to fall into two broad categories: administrative law scholars who associate the federal Freedom of Information Act and Government in the Sunshine Act, as well as their state analogs, with the broader administrative law statutes of which they are generally a part; and constitutional law scholars who associate FOIA and other open government statutes with the First Amendment and advocate for expanding the press’s rights to access government information. In the past, these two traditions have tended to talk past each other. The best example of this non-engagement was the administrative law scholar Walter Gellhorn’s response to the constitutional law scholar Thomas Emerson’s seminal 1976 article advocating a constitutional “right to know” government information.[1] Gellhorn offered a devastating critique of Emerson’s theory of the First Amendment and presumptions about the value of judicial review while he failed to grapple fully with the problem that Emerson raised about the endemic secrecy that the Nixon presidency revealed about the executive branch. The terms of such engagement, when engagement comes, is of the “to be sure” variety:

  • To be sure, openness makes administration more cumbersome, but it’s a cost we must be willing to bear to have a truly democratic system of accountability.

  • Secrecy is a problem, of course, but we can limit it with a carefully drawn statute while we protect a robust and functional administrative state.

Margaret Kwoka’s work may not offer a way out of the duality between openness and administration—indeed, there is no magical solution to the inevitable tension between those values in the public administration of a large, democratically elected state. But she offers well-grounded means to think through and lessen the conflict between them. In Saving the Freedom of Information Act, which effectively integrates the ideas and research she’s presented in articles over the past decade, she mainly does so in two ways: first by providing an empirical snapshot of how FOIA presently operates on the ground; and second by offering thoughtful means to address the issues faced by the players the statute creates—the myriad FOIA users on the one hand and the many agencies and personnel that respond to requests and comply with the statute on the other.

The book well describes the difficulties of holding the federal administrative state to informational account through her empirical research into FOIA use and her revealing interviews with a broad array of FOIA players. Her description captures the diversity of requestors and their motives, including not only the publicly interested press, which was (at least rhetorically) the intended beneficiary for FOIA, but also compliance-seeking corporations and individuals, commercial aggregators who mine FOIA requests for information they can sell to clients and subscribers, and even merely curious individuals and institutions. She also identifies the even more diverse set of federal agencies that compose the administrative state and serve wide-ranging functions affecting wide-ranging interests. All these sundry actors must comply with the same, broadly framed administrative law. And FOIA can frustrate all of them, requestors and agencies alike, often simultaneously.

But, true to her commitment to FOIA’s oft-stated purpose, Kwoka is unwilling to throw up her hands in confusion and disgust. Adding to the usual and well-earned calls for Congress and the executive branch to fully fund and support compliance efforts, she offers some impressively specific entry points to statutory reform: FOIA should require more and specific affirmative disclosures rather than depend upon demand-side requests; the Administrative Procedure Act should be amended to redesign agency adjudication so that individuals need not rely on FOIA for agencies to obtain information essential to their case; and agencies should base their practices of providing information on the different agencies’ structure and function as well as on their relationships to typical requestors.

These are excellent ideas. When FOIA was new—say, through the important 1974 amendments and their aftermath—the statute’s generality made sense. But, perhaps like the APA of which it is a part, FOIA’s relatively slim text shoulders more weight than it can bear, especially for agencies that produce and retain very different documents and have distinct relationships with those they regulate and serve. “Reform efforts,” Kwoka argues, “should focus on requiring or incentivizing agencies to meet [specific] information needs head-on through tailored mechanisms crafted outside of FOIA” (p. 179). A more narrowly focused FOIA, she hopes, can return to its original purpose: the broad public interest in enabling a visible government and holding it accountable. She thereby fuses the two legal academic traditions, supplementing Emerson’s normative call for a broader, stronger right to know with a fulsome and honest understanding of public administration.

I am convinced that Kwoka’s ideas can make a difference at the margins, which is perhaps all we can hope to achieve given our present politics and legislative lassitude, as well as the complexities of the administrative state. Her welcome realist critique of government information formalism—a single approach for every agency—uses actual practices of administration and disclosure as the basis for individualized approaches for distinct agencies. But in doing so, she implies that real marginal gains are more likely to come not by “saving FOIA” but by abandoning it, at least conceptually, in favor of specificity, perhaps under FOIA’s label but with an entirely different-looking and -acting statute that works by a “reimagining [of] the relationship between the public and information held by government agencies” (p. 227).

But I fear that the marginal gains her project prescribes will run into the political and political-economic realities that may lie beyond the book’s scope of study. Curiously, for a book on the executive branch published in 2021, Donald Trump is barely present, if at all. Accounts of FOIA can go too far in attributing administration on the ground to the presidency, but presidential administrations do vary in their emphasis on the relative values of disclosure and privilege. Any effort to save or disassemble FOIA will rely ultimately on presidential direction as well as congressional commitment and attention.

Meanwhile, the free press that was so influential in lobbying for FOIA and has been so important in attempting to use it has undergone a series of financial and institutional crises over the past several decades, casting doubt on its ability to use a more effective statute and find an audience for the revelations it produces. We might save FOIA, in other words, only to face the same recurring problems of the five-plus decades since FOIA’s enactment: an excellent-seeming law on the books that causes frustration in practice, resulting in an insufficiently engaged public and sporadic oversight. Kwoka might logically and pragmatically “save” FOIA only to see its problems and flaws reconstituted in our fallen politics and civil society.

None of these comments undercuts the achievements of Saving the Freedom of Information Act. The book offers a wonderful and insightful description of FOIA as it currently exists and helps readers think through what systemic improvements will require. It is essential reading for legal academic scholars of all varieties and will hopefully lead a path out of the narrow understandings and approaches that we too often follow.

[1] Thomas I. Emerson, “Legal Foundations of the Right to Know.” Washington University Law Quarterly (1976): 1-24; Walter Gellhorn, “The Right to Know: First Amendment Overbreadth,” Washington University Law Quarterly 1976 (1976): 25-28. I discuss these two pieces in more detail in Mark Fenster, “FOIA as an Administrative Law,” in Troubling Transparency: The Freedom of Information Act and Beyond 52-70, David Pozen & Michael Schudson eds. (Columbia University Press, 2018).

Mark Fenster is the Marshall Criser Eminent Scholar Chair in Electronic Communications and Administrative Law at the Levin College of Law, University of Florida. He is the author of The Transparency Fix: Secrets, Leaks, and Uncontrollable Government Information (Stanford University Press, 2017).

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