‘Studying Up’ the FOIA State, by Austin C. Kocher
*This is the eighth 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 substantially elevates the conversation surrounding the Freedom of Information Act and the administrative state by examining, in admirable detail, the everyday social and institutional practices that constitute the federal FOIA processes.
Saving the Freedom of Information Act represents the culmination of an ambitious analysis of how FOIA works today that relies upon detailed analyses of federal FOIA logs as well as numerous research interviews and grounded fieldwork in FOIA offices. No doubt aided by her experience as a FOIA litigator, Kwoka brings the reader into the story of FOIA, particularly what has gone right, what has gone wrong, and what needs done to fix FOIA so that it can accomplish its oversight mission.
As a result, readers are afforded an inside look into the actual spaces and places where FOIA happens, much like Laura Nader described in her seminal 1972 article on “studying up” powerful state institutions. Already Kwoka’s book has generated buzz among immigration researchers and attorneys that I interact with on a regular basis. “Did you read the part about the cave?” people ask, referring to the National Records Center outside Kansas City that handles immigration FOIA requests and is, in fact, inside a real cave.
Perhaps the reason that the cave so easily lodges itself in one’s mind is because FOIA—much like the rest of the administrative state—so often operates (or is imagined to operate, or projects the image of operating) in a space-less, time-less void. We send a FOIA request to an email address and maybe, if we’re lucky, a few months or years later, an email comes back or a package arrives in the mail. The FOIA process feels a bit like playing table tennis in the dark.
Similarly, I found myself drawn to the mundane stories that capture, each in their own way, the everydayness of FOIA: the journalists who track their many, much-delayed FOIA requests using Excel sheets, the labeling of Jason Leopold as “FOIA terrorist”, the odd requesters sending seemingly random FOIA requests to agencies with little rhyme or reason, government agencies submitting FOIA requests to each other, UFO hunters looking for records related to “Alien crash files”, or incarcerated people submitting FOIA requests for lunch menus.
Because Kwoka’s book is wide-ranging and addresses so many areas of how FOIA works (and doesn’t work) today, I want to summarize what I take to be her main argument in the book.
Saving the Freedom of Information Act argues that the Freedom of Information Act (FOIA) was created (p. 19-27) to fulfill the essential democratic function of allowing the public to participate in government oversight (p. 11-15).
However, due to the lack of more appropriate mechanisms for the public to obtain nonoversight-related records (p. 202), federal agencies have been flooded with FOIA requests (p. 63) that, while important in their own right, do not conform to the original intent of FOIA (p. 97), thereby creating unmanageable backlogs that displace oversight-related FOIA requests (p. 174).
The solution is not to restrict the scope of FOIA (p. 172), but to create alternative paths for nonoversight requests so that oversight requests will be processed in a more timely fashion. Kwoka punctuates this argument at the end: “we cannot enhance FOIA’s usefulness as an oversight tool when FOIA is forced to be everything to everybody” (p. 227).
It is important to emphasize that Saving the Freedom of Information Act is about much more than immigration, but immigration remains an unavoidably central theme in the book. Enormous—and growing—numbers of people are forced to use FOIA requests to obtain documentation related to their immigration cases because the government does not currently use a more appropriate mechanism to release documents.
The clearest example of this can be found in the fact that immigrants facing deportation in immigration court do not have access to the normal discovery process available in other court systems, and therefore must resort to using FOIA requests to obtain much-needed documents. FOIA was intended to be and should be about government oversight, according to Kwoka. But the lack of other means for immigrants to obtain records means that requesters who are using FOIA to participate in government oversight face added delays while government agencies themselves are overwhelmed with large numbers of requests.
Kwoka’s observations about these large numbers of FOIA requests relied on data from FY 2016 (p. 64). She classifies “extremely high-volume FOIA agencies” as agencies that received more than 20,000 FOIA requests in a given year. Kwoka identifies nine agencies from FY 2016 under this “extremely high-volume” category.
As Kwoka emphasizes, immigration agencies are at the top of this list, reinforcing the observation that immigration-related FOIA requests currently dominate the overall number of federal FOIA requests. US Citizenship and Immigration Services, Customs and Border Protection, and Immigration and Customs Enforcement—all agencies within the Department of Homeland Security, receive far and away the largest number of FOIA requests. The Executive Office for Immigration Review (EOIR), which oversees the immigration court system, also received among the largest number of FOIA requests.
But since these numbers were from FY 2016, I was curious to see how those numbers have changed over time. So I downloaded the data from FOIA.gov, confirmed that I was using Kwoka’s numbers, and created a chart to show how FOIA requests have changed over time from FY 2016 to FY 2020 for the agencies that Kwoka identified as “extremely high-volume.”
Two trends emerge from these data, both of which reinforce Kwoka’s arguments. The number of FOIA requests received by agencies within DHS have only increased in the intervening four years. FOIA requests received by US Citizenship and Immigration Services increased from about 167,000 to 196,000. FOIA requests received by Customs and Border Protection increased from 67,000 to 80,000. And FOIA requests received by Immigration and Customs Enforcement increased to 63,000 to 90,000—surpassing CBP by 10,000. EOIR also increased from 35,500 to 49,000. This makes the discussion of immigration-related FOIA requests more important than ever, and reflects the growing number of pending deportation cases which, as of January 2022, reached more than 1.6 million.
But notice that all other agencies initially identified as “extremely high-volume” actually fell in terms of the absolute numbers of FOIA requests. Three agencies—the Social Security Administration, the Veterans Health Administration, and the Department of State—received significantly fewer FOIA requests, enough that they would no longer be classified as extremely high-volume.
Similarly, although I cannot reproduce Kwoka’s entire analysis of what counts as first-person FOIA requesters (p. 85), I was curious to see how the fraction of FOIA requests to the Department of Homeland Security specifically had evolved, as well. In fact, for the first time ever in fiscal year 2020, the Department of Homeland Security, which has been receiving growing numbers of Freedom of Information Act (FOIA) requests over the past decade, received more than 50 percent of the nearly 800,000 FOIA requests submitted to the federal government in one year.
As we can see in these data, the absolute and relative number of immigration-related FOIA requests continues to grow even as other types of FOIA requests appear to vary more substantially over time.
Kwoka’s years of research have already provided considerable insight into FOIA requests and litigation. Saving the Freedom of Information Act adds to this scholarship considerably and will serve as a valuable resource for students and scholars working in law, policy, and the social sciences.
Austin Kocher is a research assistant professor with the Transactional Records Access Clearinghouse (TRAC) at Syracuse University, a research institute that uses Freedom of Information Act requests to study the federal government.