Notice & Comment

The Future of FOIA, by Margaret Kwoka

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

I am deeply indebted to Christina Koningisor for organizing this incredible line-up of contributors to engage with my new book, Saving the Freedom of Information Act. The responses to the book come at the topic from every angle, from research methodology to policy implications, from journalism to immigration, and from administrative design to First Amendment jurisprudence. Collectively, they have given me so much to think about as I contemplate the future of FOIA.

I was tickled to read Austin Kocher’s description of how he was “drawn to the mundane stories that capture, each in their own way, the everydayness of FOIA.” Indeed, I think that same fascination is what kept me at this research for so many years. I started the line of inquiry that would eventually become this book with a single FOIA request to a single federal agency asking for a detailed set of their FOIA logs. I made that request in 2014 and when I received that first set of records I was completely fascinated. I wanted to know more about the requesters who appeared on that list and these records they were interested in. I dug in and researched these companies and their products, the agency’s regulatory scheme and its record systems. And I just kept going. Hundreds of requests, dozens of appeals, and even a lawsuit later, I compiled the data that forms the basis for this book.

But the timeline of this research, as Nicholas Parillo highlighted, was long. It evolved organically, in stages, where I took on discrete groups of agencies and types of requesters, and then eventually decided to fill in the gaps to make a comprehensive book. The data is fascinating, but the stories of these requesters always felt compelling to me and seemed to illustrate an entire relationship between the administrative state and the public that I had not known existed. I am indebted to the many government officials who, as Parillo said, “went the extra mile to help [us] understand how FOIA works” by giving me the perspectives I could not have found otherwise. Some big part of my goal for the book was to tell these stories the best that I could, and I hope that I did them justice.

Another goal, of course, was to lay out a set of policy reforms that could, in my view, radically alter the way FOIA operates for the better. Many of those reforms, however, are outside of FOIA itself. Christopher Walker focuses his commentary on the ways I suggest agency adjudication could be redesigned to alleviate the burden on FOIA, but is absolutely correct that the “harder questions” are how to do so in a way that is “efficient and cost-effective” and “how to marshal the political will for reform.” Immigration is an area where scholars have sustained focus on the problems associated with adjudications and where Congress has shown some appetite for wading into the fray. Ingrid Eagly highlighted the enormous burden that having to resort to FOIA requests places on noncitizens already in precarious positions, but also the various ways in which immigration agencies have begun to modernize their procedures. While modest in comparison with the kinds of reforms needed, these steps are clearly indicative of the potential for change. And Austin Kocher reminds us that while the data in Saving FOIA is a few years old, the proportion of immigration related first-person requests as a fraction of overall FOIA requests to the federal government is only rising over time. Immigration agencies would be a good place to start.

Mark Fenster offers the most sobering critique of my policy prescriptions, admitting they may 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.” He adds that the changing nature of the press as well as the political realities and lack of practical accountability over government officials may “mean that Kwoka might logically and pragmatically ‘save’ FOIA only to see its problems and flaws reconstituted in our fallen politics and civil society.” It is true. I can think of a laundry list of other badly needed areas for policy reform, starting most obviously with a renewed commitment to protecting voting rights. But even if we need more than FOIA to save democracy, I’m not sure we can save democracy without FOIA.

To that end, RonNell Anderson Jones reminds us that “the specialness of the press function sometimes requires separate, special protections for those performing it,” and that reforms to FOIA that focus on preserving essential press access to government records is in fact the right goal post. The press play a special role in my book, and I begin the book by defending their unique place in the FOIA landscape. Still, as Al-Amyn Sumar rightly points out, even from his perch representing journalists in FOIA litigation, “Making FOIA more accessible to the news media cannot come at the price of burdening [already disadvantaged] groups like [first-person requesters].” 

There are ways we could elevate FOIA’s role, and in particular its relationship with the press. Heidi Kitrosser points out the relationship between FOIA and various First Amendment doctrines concerning government speech and information access rights that have constitutional grounding. Indeed, many other countries’ FOI laws are enshrined in their constitutions. Wherever the access rights are located, though, the full panoply of press protections must be examined as a whole. Similarly, Dave Cuillier suggests more attention on state FOI laws, and referenced important studies of particularly successful FOI systems abroad. I could not agree more, and am excited to see more and more work done in those spaces. I myself am scheduled for a research stay in Mexico to study Mexico’s information oversight model, and I thus hope I can contribute in some way to those ongoing conversations.

Thank you all for giving me so much to reflect on and engage with. It is a true honor to have my work the subject of this symposium hosted on Notice and Comment, and I am looking forward to continued exchanges about the future of FOIA.