Margaret B. Kwoka
The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.1
The generation that made the nation thought secrecy in government one of the instruments of Old World tyranny and committed itself to the principle that a democracy cannot function unless the people are permitted to know what their government is up to.2
There is broad consensus that the objective of the Freedom of Information Act is to facilitate holding the executive branch politically accountable. President Barack Obama, on his first day in office, issued a memorandum declaring that FOIA, “which encourages accountability through transparency, is the most prominent expression of a profound national commitment to ensuring an open government.”3 One past president of the Society of Professional Journalists explained that “the federal Freedom of Information Act stands as one of the essential clauses of the working contract between a government and its citizenry.”4 The National Security Archive, an independent watchdog group, has described FOIA as a “bedrock piece of American democracy.”5 Leaders in Congress agree. Senator Charles Grassley, Chairman of the Senate Committee on the Judiciary, marked FOIA’s fiftieth anniversary this way: “Put simply, FOIA was created to ensure transparency. And, as I’ve said many times over, transparency yields accountability.”6
The executive branch can be held politically accountable in two principal ways, and the legislative history of FOIA evidences an intent to facilitate both mechanisms. First, direct public oversight is possible: the public can learn about government activities and use that information to pressure agencies and at the ballot box, when deciding whether to reelect a president. Speaking to the public’s role in accountability, the Senate report accompanying the original legislation cited as a major concern that the executive’s “hundreds of departments … and agencies are not directly responsible to the people.”7 Second, political accountability is enabled when Congress acts in its oversight capacity to constrain or override the executive branch’s actions. When the subcommittee that laid the groundwork for FOIA investigated complaints of unwarranted secrecy, a full 44 percent of those complaints came from individual members of Congress or from congressional committees.8 FOIA was thus designed with both direct public oversight and congressional oversight of the executive branch in mind.
Much has been said over the years about how well (or not) FOIA is working. That discussion typically has focused on how quickly agencies process requests, how much information is withheld under one of FOIA’s exemptions to mandatory disclosure, or how requesters fare in litigation or in administrative appeals. Yet amidst all the sober analysis and critical complaints, one point is often cited in a more celebratory key: the astonishing frequency with which the public actually uses FOIA. At the forty-fifth anniversary of FOIA’s enactment, the Department of Justice noted: “Forty-five years ago Congress enacted the FOIA as a vital means of ensuring an informed public. The Act remains vibrant to this day, with nearly 600,000 requests filed just this past fiscal year.”9 At FOIA’s fiftieth anniversary, government and journalists alike heralded the now more than 700,000 requests received annually as evidence of FOIA’s success in fulfilling its mission.10
But does this volume of requests demonstrate FOIA’s success in holding government accountable? To answer that question, we need to disaggregate those 700,000 requests. FOIA allows any person to make a request and has no limitation based on the purpose of the request, so FOIA’s use is hardly constrained to requests that promote accountability. One particularly important group of FOIA users is the news media. Journalists were instrumental in crafting the law and continue to be among the strongest advocates for protecting and strengthening its provisions.11 Their central presence in FOIA discussions is natural. If FOIA is designed to ensure an informed citizenry, then to fulfill its mission reporters will presumably need to use the law to uncover important government activities and report their findings to the public. Moreover, journalists often sound the alarm bell that provokes congressional inquiry and oversight action.
But journalists do not even come close to submitting a majority of FOIA requests, or even a significant fraction thereof. Most studies have estimated that the news media is responsible for only single-digit percentages of FOIA requests received by federal agencies.12 Even if we add to the news media the category of nonprofits—organizations that also may serve a democracy-enhancing oversight function—best estimates put the total around 15 percent of requesters government-wide.13
If the news media and watchdog groups are not responsible for the glut of federal FOIA requests, who is, and for what purpose are they using FOIA? It is eminently worth understanding these other FOIA requesters. What FOIA is actually used for, how FOIA resources are spent, and what information makes it into the public realm are critical questions for evaluating the success of the act. These questions are, by their nature, empirical ones. Although agencies are required to report on many other facets of their FOIA operations on an annual basis, their reporting does not illuminate these important matters. Thus examination of the agencies’ raw data on their FOIA requests is required.
As I explain in this chapter, even superficial investigations of such data reveal an obvious truth: FOIA is largely used for purposes other than promoting democratic accountability. In practice, FOIA serves as a sort of fallback option for anyone looking for information about anything—and no wonder. Not only is access to FOIA in no way limited by law, but the government holds vast troves of information about nearly every aspect of our society, much of which is useful to private interests.
Requesters turn to FOIA for a wide array of reasons, including plenty of idiosyncratic ones that defy easy categorization. For example, one study of a sample of requests submitted to the National Security Agency in the late 1990s found that 12 percent concerned Unidentified Flying Objects.14 Nonetheless, despite significant variations among agencies and requesters, two categories of requests are so pervasive in the federal government that they are worthy of special consideration: commercial requesters and first-person requesters. Commercial requesters are those seeking government information as part of their profit-making enterprises.15 First-person requesters are individuals or their representatives requesting information about themselves.16 These two categories of requesters are the largest cohesive groups of requesters across the federal government. I document the scope and nature of commercial and first-person requests here and argue that those requests largely fulfill purposes other than democratic oversight. I further argue that these other purposes can be better served outside of FOIA and that doing so would shrink the size of the FOIA machinery to the benefit of those requesters who seek to use the law as originally conceived.
FOIA, INC.
Examining commercial requesters and first-person requesters provides a sense of how the bulk of FOIA resources are spent. Federal agencies’ own records are instructive in this regard. Each agency maintains a log of all FOIA requests received, and these logs typically contain certain fields such as the identity and affiliation of the requester, a brief description of the subject matter of the request, the date received, the date resolved, a control number assigned by the agency, and the outcome of the request in terms of records released. Given that around one hundred federal agencies separately fulfill FOIA requests and correspondingly track and monitor their own FOIA operations,17 no comprehensive study of FOIA requesters encompassing all federal agencies has ever been conducted. However, sampling a year’s worth of FOIA logs at key federal agencies paints a powerful picture of the FOIA landscape.
That picture shows commercial interests to be a dominant force in the FOIA system. At many federal agencies, including most notably at large regulatory agencies, the vast majority of FOIA requests are made by businesses. In 2013, for example, 69 percent of requests filed with the Securities and Exchange Commission (SEC), 75 percent of those filed with the Food and Drug Administration (FDA), and 79 percent of those filed with the Environmental Protection Agency (EPA) were commercial. Niche agencies can exceed even these levels. At the Defense Logistics Agency (DLA), which manages defense contracting, a full 96 percent of requests were commercial. Moreover, a small number of companies can sometimes drive these numbers. At the SEC, the largest-volume commercial requester made 2,155 FOIA requests in 2013, representing 18 percent of all SEC requests that year. In fact, just the top five requesters (four of which were deemed commercial and one of which, SECProbes.com, is plausibly characterized as commercial as well) made 70 percent of all requests at the SEC. Other agencies, including FDA, EPA, and DLA, also have numerous high-volume commercial requesters, each making more than one hundred requests a year.18
Although there are a variety of purposes behind commercial requesting, one theme is consistent: commercial uses of FOIA primarily fuel private profit, not the public’s interest in understanding government activities. These types of private profit motives tend to take one of several forms. First, businesses often use FOIA to find out not what the government is doing but what their competitors are doing. At the SEC, one of the two largest requested categories of records are exhibits to required SEC filings, such as annual or quarterly reports, for publicly traded companies.19 These exhibits typically contain licensing or development contracts submitted under a rule permitting confidential treatment for a particular period of time, and they are often requested the instant that time period expires. A similar phenomenon happens at the FDA. A significant number of requests to the FDA concern either the FOIA logs themselves (or chunks thereof), particularly FOIA request letters, or the records released in response to particular FOIA requests of others.20 Merck, a large pharmaceutical company, makes dozens of requests of this nature, and a close review of a sample of them shows that Merck is trying to uncover what information its competitors are seeking about Merck itself.21
A second set of commercial requests serve a dual function of informing the company making the request about both competitors and the regulatory process. Again, at the FDA, the highest volume of requested records are related to FDA facilities inspections.22 These records contain valuable information not only about the agency’s inspection regime but also about the inspected company’s operations. Similarly, at DLA, nearly all commercial requests (nearly all requests, for that matter) concern bid information for defense contracts.23 This might be helpful in learning about the contract awarding process, but it is likely to be equally if not more valuable in learning about competitors’ operations and pricing.
Beyond learning about competitor companies, FOIA is frequently used by businesses that provide due diligence services to clients. At the SEC, this is the most common type of commercial requester, and their requests typically seek any records pertaining to any SEC investigation of a particular company.24 The goal of these due diligence firms is to assess any regulatory risk associated with a company targeted for a merger or other business deal by their clients. At the EPA, the same dynamic arises. The vast majority of commercial requests, estimated to have comprised around 80 percent of EPA’s requests in recent years, were for any information concerning a particular property identified by address.25 These requests are designed to help businesses comply with rules regarding due diligence of environmental risks prior to purchasing commercial property.
Finally, one group of commercial requesters deserves special treatment. These are businesses whose very business model is to request records under FOIA and to resell those records at a profit. That is, the federal records they receive under FOIA are the commodities on which they trade. Elsewhere I have labeled these businesses as information resellers. At five of the six agencies at which I studied the commercial use of FOIA, information resellers were among the most frequent requesters. At two of those agencies, multiple resellers competed against one another. At the FDA, for instance, multiple companies use FOIA to request facilities inspections reports by the hundreds, and they sell access to whole databases of them for hundreds or thousands of dollars. At the SEC, multiple companies use FOIA to request thousands of exhibits to public filings previously submitted confidentially, and they resell access to databases of those business documents. At the DLA, one company sells access to databases of defense contracts and bids that it receives in response to FOIA requests. Another company among the top requesters at the EPA markets its consulting services as providing “comprehensive, accurate government records data” to its clients.26
These various business uses of FOIA have different goals, but one thread binds them together: the benefits that flow from receipt of public records are accrued privately, not publicly. Even when commercial requesters do use FOIA to learn about the government’s activities, it is usually in an attempt to gain a competitive advantage, which will only be conferred if the records the requester receives are closely guarded rather than broadly publicized. If the same information were available to everyone at minimal cost, it would confer no advantage at all. Thus these uses of FOIA do not fuel the accomplishment of FOIA’s primary objective of informing the citizenry and holding the executive branch politically accountable.
FIRST-PERSON FOIA
First-person uses of FOIA are very different from commercial requests in some respects, but as a class they similarly fail to advance the law’s central aim of informing the public about government activities. At many agencies, particularly large benefits-conferring and law enforcement agencies, first-person requests dominate the FOIA landscape. For example, in fiscal year 2015, Immigration and Customs Enforcement (ICE) received over 100,000 requests (approximately one-seventh of the federal govenrment’s total), and 98 percent of those requests were first-person requests.27 In that same year, 76 percent of requests submitted to the Veterans Health Administration (VHA) were first-person requests,28 and 95 percent of requests to the Equal Employment Opportunity Commission (EEOC) were first-person requests.29
Reasons for first-person requesting are varied, but one common reason is a pending or anticipated administrative dispute with the agency in which the private individual has no other access to discovery. Immigration agencies provide the clearest—and most prevalent—example. The government holds an Alien File, known as an A-File, on every noncitizen, which typically contains that individual’s immigration applications or forms, past statements the individual has made to an immigration officer, or information about the government’s own investigative methods. For a noncitizen in removal proceedings, previous applications or forms can sometimes establish facts necessary for relief in immigration court, records relating to their past statements often go directly to credibility issues, and records relating to the government’s investigation tactics could support a claim of suppression of key evidence. Even for noncitizens who are not facing removal, these documents can provide key information in determining whether individuals can apply for a different type of visa, adjust their status to become a lawful permanent resident, or qualify for citizenship.30
First-person FOIA requests are currently the most common use of FOIA government-wide. In fiscal year 2015, the Department of Homeland Security (DHS) received 281,138 FOIA requests, representing almost 40 percent of the federal government’s total.31 The vast majority of these requests were made to the immigration enforcement components of DHS (including ICE) and came from individuals (or their attorneys) seeking their own immigration-related files. More than 200,000 requests made to DHS components alone in 2015 were first-person FOIA requests.
First-person requesters at the EEOC are using FOIA in an analogous way, and 95 percent of FOIA requests in 2015 were for the agency’s file concerning the investigation of a particular charge of employment discrimination.32 Once a charge is filed at the EEOC, the EEOC conducts an investigation. At the conclusion of that investigation, if the EEOC decides not to move forward with a case, it sends notice of a right to sue to the charging party. The EEOC’s investigative file, or “charge file,” is generally not available under FOIA during the investigation, and by special statute it cannot be released even to the charging party until the period in which a lawsuit can be filed has run out. Moreover, the only time the records can be released to the responding party (the employer) is if a lawsuit is in fact filed. Thus the overwhelming majority of these requests are made by charging parties during the window of opportunity in which they can file a lawsuit after the conclusion of an investigation. FOIA is the only way for them to gain access to the EEOC’s investigative materials about their own charge of discrimination.33
At VHA, the reasons for these first-person FOIA requests appear to be more varied than at DHS and EEOC, but they also demonstrate the private nature of the interests involved. For example, some of the highest-volume requesters at the agency include insurance underwriting firms, which are essentially making first-person requests as the representative of an individual because the individual is applying for an insurance policy. One frequent requester is a law firm that specializes in social security disability law, presumably requesting its clients’ medical files in support of a disability-based claim for benefits. Another group of individuals—more than five hundred in fiscal year 2015—are families of deceased veterans or the funeral homes representing them who are seeking a type of military separation documentation that is required to access a military funeral benefit. All in all, FOIA requests to the VHA are overwhelmingly made for veterans’ medical records and deceased veterans’ medical records, at 26 percent and 42 percent of total requests, respectively.34
To be sure, first-person FOIA requests fulfill a valuable role. Individuals who have no other right of access to their own records—their own interview transcripts, their own medical files, their own employment discrimination records—can harness FOIA’s power for that purpose. Nonetheless, the benefits of the release of these records is largely accruing privately. For example, individuals’ files are being used to help individuals secure government benefits to which they may be entitled, to secure products on the private market they want, or to settle or litigate private disputes. Although there may be public benefits as well—for example, the general public interest in fair and accurate determinations of benefits—these types of uses do not go to the heart of FOIA’s imagined purpose of informing the public about government activities.
Between commercial FOIA requesting and first-person uses of FOIA, vast resources are spent fulfilling requests that do not advance FOIA’s underlying mission. These two groups are the largest identifiable cohorts, but they are hardly the only nonmedia uses of the law. Even though no comprehensive government statistics are available, given the number of large agencies about which data is available, it is fair to say that most FOIA requests and corresponding government resources spent responding to them serve interests other than educating the public about the operations of government and holding government accountable.35 The reality of FOIA does not conform to the purpose Congress envisioned in enacting the law, which belies the notion that the sheer volume of requests made each year represents an unambiguous triumph of any sort.
FOIA’S POOR FIT
Using FOIA for purposes beyond those imagined at its creation may well serve laudable goals other than informing the public about the operations of government. However, because FOIA was designed for democracy-enhancing public engagement, it is often a poor fit for these other uses to which it is being put. These other interests often are not best met by the open-to-all, request-and-response model that FOIA embodies.
Commercial entities may well make socially beneficial uses of government records in fueling innovation or promoting competition in the private marketplace, for example, and these uses may well be worth supporting in some fashion. But a close look at commercial requesting practices under FOIA reveals that such entities request the same types of records repeatedly, often apparently seeking to index or create a database of all or nearly all records in a particular category. For example, commercial requesters will ask for FDA facilities inspection reports by the hundreds. Although each report concerns a different inspection event, the type of record requested is similar each time. The same is true for requests for defense contract bids from DLA and the exhibits to public filings from the SEC.
Rather than continuing this inefficient process of retail requesting, there are easily identifiable instances in which an agency could make the entire category of records affirmatively available by publishing a database on its website for anyone to access. For example, the SEC could make confidential filings immediately available on its EDGAR database website upon the expiration of the confidential treatment period.36 The EPA has already moved in that direction, implementing an online tool called MyProperty, which allows anyone to search for site-specific environmental records, previously the subject of thousands of FOIA requests made largely by due diligence companies.37 These sorts of efforts could preempt the need for hundreds, sometimes thousands, of requests and would simultaneously achieve greater transparency to the public at large.
Other sorts of problems arise from first-person requesting. Oftentimes, individuals are seeking their own records as part of their effort to access a government benefit to which they believe they are entitled or to defend against an enforcement action brought by the government. Individuals obtaining the government’s files related to their own administrative case is akin to individuals using the discovery process in civil litigation or criminal prosecutions. In our justice system, disclosure of relevant information is thought to lead to fairer and more accurate decision-making. As David Pozen has suggested elsewhere, these are “due process benefits” insofar as disclosure of the records serves the same purposes as due process protections,38 even if these individuals may not formally have a due process right.
FOIA often serves these due process purposes poorly.39 One significant problem concerns timing. Because a FOIA request goes through a completely separate process from any underlying claim to benefits or administrative proceeding, the timing of the agency’s response is not tied to that underlying proceeding. Frequently, the FOIA response will not arrive in time to be of help to the individual. For example, in removal proceedings in immigration court, noncitizens may not receive a response to their FOIA request until after a disposition has been reached in their removal case. The problem is particularly acute with individuals who are detained pending the result of their proceeding because their immigration court process is expedited. Even though one of the immigration agencies, U.S. Citizenship and Immigration Services, has created a fast track for individuals who are in removal proceedings, they still often do not receive a response in time.40 Similarly, at the VHA, families seeking discharge records to access military funeral benefits face challenges obtaining them under FOIA in time for the funeral.41
Moreover, the process of going through FOIA can seem wildly inefficient given the records’ relationship to a pending proceeding. At the EEOC, for example, nearly all FOIA requests are made by a party who previously filed a charge of discrimination with the agency and who wants access to the agency’s file of investigatory materials. Given that the charging party has been working with the EEOC over the course of the investigation and has a contact at the agency, going a separate route through the FOIA office to obtain the file hardly seems optimal. One could imagine, instead, a requirement that the EEOC officer in charge of the case release the nonexempt portions of the file to the charging party at the conclusion of the investigation. Similarly, in immigration proceedings, attorneys typically file a FOIA request at each of three or four different agencies that handle aspects of immigration enforcement.42 Yet, at each court date, the individual in immigration court will be sitting just a few feet away from the trial attorney’s file, which contains the very records the individual is seeking through an entirely collateral process under FOIA. Again, one could imagine rules of discovery that would require the trial attorney to make nonprivileged material in the file available in the immigration court proceeding itself.
Finally, if a response to a first-person FOIA request includes assertions of exemption to mandatory disclosure, allowing the government to withhold or redact certain documents, those assertions will have to be challenged, if at all, through a FOIA appeal and separate FOIA lawsuit.43 For an individual with an underlying dispute or claim before an agency, having to engage in a second dispute resolution process over the records sought poses what is likely an undue burden. Moreover, the judge or agency official already tasked with deciding the underlying dispute is likely to be in the best position to determine the individual’s right to access the records, but, under FOIA, this person will not have any role in doing so.
Even for those first-person requests that do not essentially serve as a stand-in for discovery in an underlying administrative case, FOIA often seems like a poor mechanism for accessing the relevant records. For example, the overwhelming majority of records requests at the VHA are for medical records.44 In an age in which the federal government is encouraging and even requiring private industry to move toward electronic health records, using FOIA to access your own medical records or the medical records of your deceased family member seems an anachronism.
In short, for vast swaths of FOIA requests currently fueling the explosive growth in the use of FOIA, the law may be serving worthy goals, but those goals could be much better served through mechanisms tailored to them. FOIA was designed, instead, to serve the needs of the news media and certain watchdog groups, which were expected to be filing requests in response to current events, scandals, and policy debates. If it were working efficiently and cost effectively for those users, a tailored request-and-response model would likely be very practical. The routine complaints about FOIA voiced by the news media, after all, center on the reality of FOIA delay and denial, not the design of an individual right to request records.45 The model fails, however, to fully meet the information needs of requesters who use FOIA simply because there is no alternative, a group that appears to make up a majority of FOIA requesters.
DETRACTING FROM FOIA
That FOIA is used mostly for purposes not conceived of as part of its core mission detracts from FOIA’s success in several ways. First, it calls into question the value of the considerable resources spent on FOIA administration across the federal government. Second, the glut of requesters using FOIA to advance private interests potentially affects its efficacy for public interest requesters such as the news media. Finally, it diverts attention away from what might be much better investments in transparency.
FOIA is notoriously costly. In fiscal year 2015, the official cost of all FOIA-related activities in the federal government reached just shy of half a billion dollars.46 FOIA advocates like to compare this amount to what is spent on seemingly less important line items—the famous example being annual expenditures on military bands—but the amount is still more than the entire budget for the Federal Trade Commission or the National Labor Relations Board, and about six times as much as we spend on the Federal Elections Commission. Accordingly, we should question whether we are spending this money well. This is particularly true because Congress never imagined that spending would reach this level, having estimated in 1976 that FOIA compliance costs would not reach more than $100,000,47 which is about $425,000 in today’s dollars, or less than a thousandth of current spending levels.
FOIA’s central mission is informing the public about government activities, and agencies voiced the concern that FOIA resources are spent for largely private, not public, benefits as early as 1980. As the Department of Justice reported at that time, “concern over costs arising from the private use of public resources” include “the use of FOIA as a substitute for discovery in litigation and the use of FOIA for commercial purposes.” The department concluded that “agencies may incur heavy costs for providing information that will have primarily a direct private benefit.”48
Indeed, FOIA spending sometimes amounts to a subsidy fueling private profit. Although requesters can be charged fees designed to cover some FOIA costs, the reality is that the federal government recoups very little in fees in comparison with its costs. This is even true for commercial requesters, the group that is subject to the highest fee categories, as these requesters tend to pay in fees less than 5 percent of the cost the agency incurred in fulfilling their requests. For all commercial requesters, but particularly for information resellers, the provision of free or low-cost federal records amounts to a giveaway that benefits the requester’s bottom line.49
Beyond concerns about potentially ill-spent resources, the existence of resource constraints suggests that agencies that receive a deluge of requests that do not go to the heart of FOIA’s principal concern may be less responsive to those requests that do implicate government accountability. That is, news media, watchdog groups, and private citizens using FOIA to uncover government activity for oversight purposes may be essentially crowded out of the process because FOIA offices are so overwhelmed with these other requesters. The potential for such crowding out is underscored by the perennial concerns about delay as a prime reason FOIA falls short of serving its intended mission.50 If agency personnel were not tied up with voluminous private interest requests, response times and general responsiveness would likely improve for the public interest ones.
Finally, the concerns about how FOIA resources are spent and how well FOIA is achieving its core objective have led some to question the overall costs versus benefits of FOIA. Of course, as the Department of Justice has noted, the benefits of FOIA are “difficult to quantify.”51 In addition to the resources spent on requesters other than those contemplated as prime intended users of the law, other critiques of FOIA include its failure to meaningfully police national security secrecy and its potentially deleterious impact on the domestic regulatory process. This combination of the realities of FOIA led Pozen to conclude that “FOIA does the least work where it is most needed and, at least from a normative standpoint that values effective and egalitarian governance above transparency per se, does too much work everywhere else.”52 On multiple levels, then, the glut of other FOIA requesters is in part responsible for undermining the justifications for having FOIA access rights in the first place.
LESS IS MORE? SHRINKING FOIA SENSIBLY
Despite these grounds for a serious critique of FOIA, evidence shows that FOIA does, even in its current state, serve some of the news media and other oversight requesters’ interests, and often serves them well. Unlike, for example, commercial requests, news media requests tend to vary widely by topic and tend to track current events or hot news items.53 Moreover, the Transactional Records Access Clearinghouse (TRAC) recently reported that topics of FOIA lawsuits brought in 2016 “frequently read very much like the news headlines from the past year,” which “underlines the important role FOIA did play in fueling public discussions.”54 TRAC uncovered a plethora of examples in which members of the news media sued under FOIA to obtain records for the very purposes FOIA was envisioned: to learn about government actions and uncover possible wrongdoing. At present, it is hard to imagine another way to provide a right of access for the idiosyncratic needs of the press as flexible or powerful as the request-and-response system created under FOIA.
Given that FOIA is still serving as a valuable mechanism for oversight, and that it would be even more successful in that arena if it were not overly used for other purposes, one promising goal is to reduce reliance on FOIA for these noncore purposes. Despite that aim, a simple ban on the use of FOIA by requesters other than the news media or nonprofits would likely be difficult to administer because it would require agencies to sort out the true or qualified requesters from sham or imposter requesters. Moreover, giving agencies yet another ground to withhold records in a world in which overwithholding is a serious risk would work at odds with transparency goals. Finally, other uses of FOIA may well be socially useful, even if they do not serve FOIA’s main objective. Indeed, both the commercial and individual uses of FOIA I have described produce social benefits that we should be wary of negating.
More promising reforms seek to reduce reliance on FOIA by requiring or incentivizing agencies to meet other information needs through tailored mechanisms crafted outside of FOIA. This approach would reduce (perhaps vastly) the number of FOIA requests that are made and free up FOIA offices’ resources to better serve FOIA’s core mission. For other types of requesters, one-by-one requesting under FOIA makes little sense, and alternatives include targeted affirmative disclosure of entire categories of records, individual administrative discovery rights, and electronic access to personal records. Designing non-request-based systems to deliver the information people and businesses routinely need for their private affairs would remove pressure from FOIA to serve that function.
Reform efforts should focus on mandates or incentives for agencies to adopt practices that will shrink the overall work that FOIA must perform. Although the nature of private-interest FOIA requesters and the records they seek vary between agencies, Congress could require agencies to take certain steps to evaluate opportunities to preempt whole categories of FOIA requests. Legislative mandates might include a very minimum requirement that agencies publish their FOIA logs, including a variety of key fields such as the identity of the requester, the fee category of the requester (commercial, news, or other), the subject matter of the request, the fees actually charged, the date the request was made and the date it was fulfilled, and the outcome of the request. Publication of this standardized information would improve oversight of FOIA operations themselves, and it would allow the public to see how FOIA resources are being spent. This could facilitate pressure on the agency to find alternatives to FOIA that better meet the information needs at that agency.
Congress could certainly go further and could legislate a requirement that agencies evaluate their logs annually to report the most frequently requested categories of records (perhaps the top five or so such categories) as part of their annual FOIA report to the Department of Justice. Legislation could further require agencies to conduct a feasibility analysis on preempting the need for individual FOIA requests, either by engaging in categorical affirmative disclosure of frequently requested records or by other administrative policy changes, such as permitting particular kinds of administrative discovery or creating access to certain personal records by online log-in. The feasibility analysis would have to include not only the cost of the alternative but also the resources saved by reducing FOIA expenses, the potential transparency benefits of the alternatives, and any costs associated with increased screening or review necessary to implement such a system. Finally, legislation could require the agency to engage in this alternative mode of information disclosure where feasible under the agency’s own analysis.55
Various enforcement mechanisms could complement these administrative requirements. Either by legislation or by executive order, agency feasibility analyses could be reviewed by an executive branch oversight body, such as the Department of Justice’s Office of Information Policy or the Office of Government Information Services, housed at the National Archives and Records Administration.56 A private right of action could be created to allow for quasi-private attorney general actions to enforce these mandates. At the very least, publication of the agency’s thinking on the matter would prompt civil society to pressure, petition, and otherwise demand that agencies take actions to reduce their overreliance on FOIA.
With measures such as these, success in FOIA could begin to be measured not by how many requests are received but by how many requests never had to be made in the first instance. A leaner, meaner Freedom of Information Act would better serve its government oversight purpose. Alternative disclosure channels—used to preempt the need for FOIA requests but not to constrict FOIA rights—would ensure that transparency is not compromised in the process. In FOIA’s next fifty years, the right goal may be to shrink FOIA.
NOTES
1. NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978).
2. EPA v. Mink, 410 U.S. 73, 105 (1973) (quoting Henry Steels Commager, The Defeat of America, New York Review of Books, October 5, 1972, at 7).
7. S. Rep. No. 89-813, 1st Sess. 3 (1965).
8. Michael Doyle, “The Freedom of Information Act in Theory and Practice” (master’s thesis, Johns Hopkins University, Baltimore, Md., May 2001), 33 (on file with author).
9. U.S. Department of Justice, “Celebrating FOIA’s Forty-Fifth Anniversary and Assessing This Past Year’s Progress in Implementing Attorney General Holder’s FOIA Guidelines,” August 6, 2014, www.justice.gov/oip/blog/foia-post-8.
10. Hudson, “50 Years Later.”
11. Mark Fenster, “The Transparency Fix: Advocating Legal Rights and Their Alternatives in the Pursuit of a Visible State,” University of Pittsburgh Law Review 73 (2012): 443–503, at 451–66.
14. Doyle, “The Freedom of Information Act in Theory and Practice,” 80.
15. Freedom of Information Reform Act of 1986, “Uniform Freedom of Information Act Fee Schedule and Guidelines,” Federal Register 52 (1987): 10,012, 10,017–18.
18. Margaret B. Kwoka, “FOIA, Inc.,” Duke Law Journal 65 (2016): 1361–1437, at 1379–1414.
19. U.S. Securities and Exchange Commission, Freedom of Information Act responses to September 5, 2014, February 12, 2015, February 13, 2015, and April 21, 2015, requests by Margaret B. Kwoka (on file with author) [hereinafter SEC Data]; Margaret B. Kwoka, “Inside FOIA, Inc.,” Yale Law Journal Forum 126 (2016): 265–72, at 270.
20. U.S. Department of Health and Human Services Food and Drug Administration, Freedom of Information Act responses to June 24, 2014, February 12, 2015, February 13, 2015, and April 21, 2015, requests by Margaret B. Kwoka (on file with author) [hereinafter FDA Data].
21. FDA Data at Request Letters 2013–999, 2013–1004, 2013–2329, 2013–4755, 2013–5840, 2013–9340, 2013–2280, 2013–4178, 2013–4766, 2013–6390, 2013–7365.
22. That a request concerned inspections was ascertained by examining the subject matter of the request as summarized by FDA in its FOIA logs. For example, every entry for Eli Lilly either contained the designation of a particular “EIR,” which is an abbreviation for Establishment Inspection Report, or “483,” which is short for FDA Form 483, an inspection observations form used by FDA. See FDA, “Inspections, Compliance, Enforcement, and Criminal Investigations,” www.fda.gov/ICECI/Inspections/ucm256377.htm; FDA Data.
23. U.S. Department of Defense, Defense Logistics Agency, Freedom of Information Act responses to October 6, 2014, February 12, 2015, February 13, 2015, and April 21, 2015, requests by Margaret B. Kwoka (on file with author).
24. SEC Data; Kwoka, “Inside FOIA, Inc.,” 270–71.
26. Kwoka, “FOIA, Inc.,” 1382–1403.
28. 5 U.S.C. § 552a(d)(1).
29. U.S. Equal Employment Opportunity Commission, Freedom of Information Act response to April 14, 2016, request by Margaret B. Kwoka (on file with author) [hereinafter EEOC Data].
30. Geoffrey Heeren, “Shattering the One-Way Mirror: Discovery in Immigration Court,” Brooklyn Law Review 79 (2014): 1569–1627, at 1610–12.
34. U.S. Department of Veterans Affairs, Veterans Health Administration, Freedom of Information Act response to April 14, 2016, request by Margaret B. Kwoka (on file with author) [hereinafter VHA Data].
35. Putting commercial and individual requesting together equals 66 percent of all requests. Galka, “Who Uses FOIA?”
36. Kwoka, “Inside FOIA, Inc.,” 270.
38. David E. Pozen, “Freedom of Information Beyond the Freedom of Information Act,” University of Pennsylvania Law Review 165 (2017): 1097–1158, at 1137.
39. “Where we find FOIA doing due process work, we find due process interests being served poorly.” Pozen, “Freedom of Information Beyond the Freedom of Information Act,” 1138.
40. Heeren, “Shattering the One-Way Mirror,” 1596.
41. See, for example, Military Funeral Benefit, “DD214 and Taps, a Veteran’s Final Funeral Benefit, a Tribute from a Grateful Nation,” www.dd214.us/funeral.html.
42. Heeren, “Shattering the One-Way Mirror,” 1593.
43. 5 U.S.C. §§ 552(a)(6), 552(a)(5)(B).
45. See, for example, Michael Doyle, “Missed Information: The Reporting Tool That Reporters Don’t Use,”Washington Monthly, May 2000, 38, 40.
49. Kwoka, “FOIA, Inc.,” 1415–22.
50. Kwoka, “FOIA, Inc.,” 1364, 1374.
51. U.S. Department of Justice, “FOIA Update: Costs and Benefits.”
52. Pozen, “Freedom of Information Beyond the Freedom of Information Act,” 1111.
53. Kwoka, “FOIA, Inc.,” 1430.
56. Kwoka, “FOIA, Inc.,” 1427–37.