Page numbers refer to the print edition but are hyperlinked to the appropriate location in the e-book.
FOIA refers to the federal Freedom of Information Act throughout. Page numbers in italics indicate tables or figures.
“7 Lessons from BuzzFeed’s ‘FOIA-Friendly Newsroom’ ” (Hinchcliffe), 125
Access Info Europe (AIE), 250, 252
Administrative Procedure Act (1946), 55, 228; amendment advocated by Cross, 57; deficiencies of, 226, 228; FOIA as amendment to, 14, 48n48, 52; quasi-constitutionality of, 62–64; secrecy exemptions, 67n8. See also FOIA
AIE (Access Info Europe), 250, 252
amendments to FOIA, 42, 63; 1974 amendments, 22, 59, 145–46; after Watergate, 137, 149, 274; E-FOIA Amendments (1996), 172, 273; FOIA Improvement Act (2016), 26, 127–28, 217, 225n49, 273; interpretation and proactive dissemination of information required, 172; party politics and, 273. See also reforming FOIA
American Society of Newspaper Editors (ASNE), 53, 54, 55–57
archaeological information, 96
Bartnicki v. Vopper, 47n36
benefits of FOIA: under the current administration, 156, 162–63n40, 163n41; investigative reporting’s benefits, 123–24; positive impacts on regulatory state, 156–58, 163nn43–44, 164nn48–49, 164–65n50; private vs. public benefits, 80–81, 154 (see also commercial FOIA requests; first-person FOIA requests); in Schudson’s view, 5–6
Better Government Association, 98–99
Boumediene v. United States, 151
Brandeis, Louis, Justice, 157, 192
The Brethren (Woodward and Armstrong), 196–97
Breyer, Charles, Judge, 147
bureaucratic approach to transparency reform, 292–93
Burger, Warren E., Chief Justice, 38, 38
Canada: Corruption Perception Index score, 297; FOI (RTI) law adopted, 253; Global Impunity Index score, 299; municipal administrations, 272; RTI Rating evaluation, 253–62, 267n37
Center for Constitutional Rights, 140
Center for National Security Studies, 140
Center for Open Data Enterprise, 218–19
Centers for Medicare and Medicaid Services (CMS), 118–19, 210
Central Intelligence Agency, 138
Centre for Law and Democracy (CLD), 250, 252
Chief FOIA Officers (CFOs), 170
Chief Information Officers (CIO) Council, 218, 225n49
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 44n8
Citizens Divided: Campaign Finance Reform and the Constitution (Post), 45n16
Citizens United v. Federal Election Commission, 45n16
Civilian Aeronautics Board, 17
civil servants: bureaupathology paradox, 167, 168, 169–72, 181; FOIA effectiveness dependent on, 142–46, 154, 169; in the IG system, 169 (see also Inspectors General); and monitory tools/practices, 166–67; and secrecy, 138, 143–45. See also federal agencies; and specific agencies
Clark, Ramsey (Atty. Gen.), 27; memorandum, 17–18, 21, 23
CLD (Centre for Law and Democracy), 250, 252
CMS (Centers for Medicare and Medicaid Services), 118–19, 210
Colorado: environmental FOI logs analyzed, 103, 105, 106, 107, 108; journalists and FOI law, 99, 103
commercial FOIA requests, 173; as bulk of FOIA requests, 6, 50n59, 51n69, 92, 173, 209, 240; and corporate competition, 77; and FOIA costs, 84; FOIA’s mission not advanced, 80–81, 173; high-volume requesters, 76; news media use outweighed by, 4, 8, 18–19, 75, 76, 84–85, 92, 123, 124; to Pennsylvania vs. federal environmental agencies, 104, 105; proposed alternatives, 81, 86; purpose of, 76–78, 173; reselling of FOIA’d information, 19, 78–79, 123; unintended due process function served, 50n59, 51n69. See also private entities and the private sector; and under state FOI laws
common law right to information, 233–34
Congress: on agency withholding of information, 226; FOIA amended (2016), 26 (see also amendments to FOIA); FOIA enacted, 2, 13–14, 56–57, 226, 228, 251; and FOIA exemptions, 228–29, 231, 236, 237, 241 (see also exemptions to FOIA); and FOIA expenditures, 84; and FOIA reform, 87, 237 (see also reforming FOIA); on FOIA’s “brokenness,” 4, 229; and the Global War on Terror, 137, 149, 151–53 (see also Global War on Terror); House Report on FOIA, 14, 17, 23 (see also Clark, Ramsey: memorandum); information access and disclosure, 38; Inspectors General and, 167, 171, 180 (see also Inspectors General); and judicial enforcement of FOIA, 230; and the national security exemption, 22; not covered by FOIA, 7, 168, 254; open data acts, 212 (see also open data); and proactive disclosure, 172; resource allocation, 41, 50n59; and the scope of FOIA, 154; single-party control of, and FOIA’s role, 156; subject to capture/manipulation, 158. See also Administrative Procedure Act; FOIA; and specific individuals and acts
Constitution, U.S., 35–36; amendment difficult, 40; constitutional vs. statutory approach to the right to information, 39–43, 48n47, 50n57, 53–66; declining global impact, 249; enforcement of constitutional rights, 61–62; Madison on the need for closed-door debate re, 187, 201; negative and positive rights under, 35–37, 44nn6, 8, 10, 44–45n12, 45nn16, 18; and political accountability, 74; right to information absent in, 8, 37–39, 48nn43, 46, 253–54, 296; Seventh and Eighth Amendments, 44n6; and states’ right to restrict FOI requests to residents, 93; Stewart on, 34; and transparency, 34, 135. See also First Amendment; freedom of speech; freedom of the press
corruption: in Brazil, 280, 289n53; Corruption Perceptions Index, 296–98, 297–98t; disconnect between transparency and, 294–302; FOIA as protection against, 73, 135, 220; input transparency and, 189, 199, 202, 204; open data and, 215, 216, 219; public impression of, 19; structural corruption, 293–94, 306n7; and transparency in Mexico, 9–10, 291, 293–94, 296–305. See also government accountability
costs of FOIA: in 2015, 84, 170; in 2016, 124–25; agency concerns about, 23–24; comparable line items, 84, 159n7; cost-benefit ratio questioned, 85, 136; costs of implementing reforms, 128; fees, 23–24, 84, 96–97, 100, 124, 170, 173, 256; journalists’ requests and, 123–25, 126; outweighed by benefits, 6, 123–24; and resource allocation, 41, 50n59; and the robustness of FOIA infrastructure, 154. See also drawbacks of FOIA
courts: authority lacking re FOIA exemptions, 227; and the constitutional vs. statutory approach to information access, 41–42, 60; deference to executive withholding, 4, 64–65, 142, 145, 148, 155, 231–32, 240, 267n31; enforcement of a theoretical constitutional right to information, 61–62; Gellhorn on judicial review, 66; and GWOT-related FOIA requests, 137, 141, 142, 147, 155; and GWOT-related litigation, 161n28; and immigration policy-related FOIA litigation, 157; institutional structure of the federal judiciary, 147; judicial enforcement of FOIA, and its limitations, 14, 230–32; judicial infrastructure required for FOIA, 154; lawmaking by litigation, 42, 51n61, 60; and the national security exemption, 21–22; not covered by FOIA, 7, 168, 254; open data projects, 215; procedure for FOIA litigation, 232. See also litigation; Supreme Court
criminal trials, access to, 38, 47n41
data: big data, 118, 174–77, 215; covered by FOIA vs. open data policies, 209; data science, 206; high-value data sets, 191–93, 196, 209–10, 214–15, 224n42–43. See also data.gov; open data
Defense Advanced Research Projects Agency, 127
Defense Contract Audit Agency, 121
Defense Logistics Agency (DLA), 19, 76, 77, 81
deliberative discussion: exempted under some state FOI laws, 95; on federal regulations, 198–99; and FOIA’s Exemption 5, 25–26, 95, 237, 239, 267n33; FOIA’s feared impact on, 15, 23–26 (see also exemptions to FOIA: Exemption 5); illegitimate/objectionable arguments, 199–200; input transparency and, 188, 189, 197–204; need for closed-door discussions, 187; some secrecy beneficial, 5
Democracy’s Detectives: the Economics of Investigative Journalism (Hamilton), 116, 123. See also Hamilton, James T.
Democratic Party, and FOIA’s passage, 56–57
denial of FOIA requests: agency review process and, 229–30; appeals, 259, 267n36; courts’ deference to withholding agencies, 4, 64–65, 142, 145, 148, 155, 231–32, 240, 267n31; courts empowered to force disclosure, 14; denials increasing, 227, 242nn8–10; judicial enforcement, and its limitations, 230–32 (see also courts); limited to specific instances/exemptions, 14 (see also exemptions to FOIA); public-interest balancing test needed to counteract, 227–28, 233, 235–41; sanctions for improper denial, 260, 268n38. See also courts; litigation
Department of Justice (DOJ): annual FOIA reports to, 87, 111–12; benefits of FOIA “difficult to quantify,” 85; Blue Book withheld, 239; FOIA limited by DOJ report, 14; FOIA officials under auspices of, 218; and FOIA performance improvement, 219; Guide to the Freedom of Information Act (2015), 25; and GWOT accountability, 149; independent Inspector General, 138, 143, 149, 176, 180; Office of Information and Privacy (Information Policy), 145–46; Office of Violence Against Women, 121; and the Panama papers, 304; report on post–September 11 dragnet detentions, 143; sanctions authorized for improperly withholding records, 268n38; statutes covered under Exemption 3 identified, 95; voter fraud allegations, FOIA request re, 164–65n50
Digital Accountability and Transparency Act (2014), 212
drawbacks of FOIA: antiregulatory effects, 19–20, 156, 163n42 (see also regulatory state); cost-benefit ratio questioned, 85, 136 (see also costs of FOIA); denials increasing, 227; described as ineffective, 136; “FOIA Is Broken” (2016 report), 4, 229; foreign counterparts stronger/more effective, 7, 249–50 (see also foreign FOI laws; Right to Information (RTI) Rating); government secrecy legitimated, 5 (see also secrecy); impact on deliberative discussion, 15, 23–26 (see also deliberative discussion); mission not advanced by commercial and individual use, 80–81, 173; national security state overly deferred to, 22–23 (see also national security; national security agencies); overclassification of documents, 22, 146, 168; a poor fit for commercial and individual uses, 81–83; Pozen on FOIA’s flaws, 128–29, 160n9, 206 (see also Pozen, David E.); Scalia on FOIA as superfluous, 135–36, 137; written documents avoided, 202. See also transparency: drawbacks
economy, FOIA and regulation of, 15–20
effectiveness of FOIA, 3–4; claims of ineffectiveness, 136, 148; contributions to public information, 148–50; dependent on civil servants, 142–46, 154; expansion of state secrecy despite FOIA, 52–53; FOIA a poor fit for commercial and individual uses, 81–83; FOIA’s mission not advanced by commercial and individual use, 80–81, 83–85, 173; and GWOT accountability, 136, 137–38, 148–53 (see also Global War on Terror); institutional leverage, 150–53; news media interests well served, 85; optimality, 154–56; partial disclosures, 148–49; popularity of FOIA, 263; potential for state communication of information assumed, 65–66; proposed alternatives for commercial/individual use, 81–83, 86; response times, 19, 82, 85, 92, 206, 229; robustness of a broad regime, 153–54; “uneven” effectiveness, 8. See also benefits of FOIA; use of FOIA
E-FOIA Amendments (1996), 172, 273
Eisenhower, Dwight D., 25, 56
Electronic Privacy Information Center (EPIC), 140, 149, 164n49
enforcement: of federal FOIA, 52–53, 97; of state FOI laws, 97–98
environmental policy, 193
Environmental Protection Agency (EPA): commercial FOIA requests, 19, 76; cost-benefit analysis of proposed Clean Power Plan Rule, 194–95, 194; Greenhouse Gas Inventory, 193; Kwoka’s analysis of FOIA logs from, 100, 103 (see also Kwoka, Margaret B.); media FOIA requests, 103, 105, 111, 121–23; MyProperty online tool, 81; output vs. input transparency, 187–88; Pennsylvania FOI logs compared with EPA logs, 104, 104, 105; website mirrored, 163n41. See also Pruitt, Scott
Equal Employment Opportunity Commission (EEOC), 78–80, 82
executive branch: agency opposition to FOIA based on faith in executive branch rationality/authority, 26–27; cabinet, 271; and the enforcement of constitutional rights, 61; executive privilege and FOIA, 24–26, 58, 62; FOIA compliance dependent on presidential signals, 126; FOIA coverage limited, 7 (see also exemptions to FOIA); monitoring from the inside (see Inspectors General); political accountability, 73–74; president’s ability to withhold information on national defense and foreign policy, 22; president’s administrative prerogative over executive branch secrets, 56; veto of public interest override, 236. See also federal agencies; president, U.S.; and specific presidents and administrations
exemptions to FOIA, 14, 226, 228–29; agency review process and, 229–30; binary test and judicial review, 231–32; courts lacking authority re, 227; Exemption 1 (classified/national security information), 20–23, 25, 146, 195, 257, 267nn31, 33 (see also national security); Exemption 2 (material related to agencies’ internal personnel rules and practices), 17; Exemption 3 (material withheld under other statutes), 17, 95, 96, 236, 241, 257, 267n30; Exemption 4 (information provided in confidence), 18; Exemption 5 (deliberative discussions), 25–26, 95, 237, 239, 267n33 (see also deliberative discussion; executive branch: executive privilege and FOIA); Exemption 6 (private personal information), 141, 195, 229–30, 232, 235, 267n33; Exemption 7 (investigatory material for law enforcement purposes), 17–18, 141, 229–30, 232, 235; Exemption 8 (information related to regulation/supervision of financial institutions), 18, 237, 267n33; Exemption 9 (geological information; oil wells), 18, 95, 258, 267n33; first-person FOIA requests and, 83; government malfeasance exception, 237; invoked for GWOT-related requests, 141; national security exemptions, 20–23; public-interest balancing test needed, 227–28, 235–38 (see also under reforming FOIA); RTI Rating and, 257–58; types of exemptions, 17–18. See also denial of FOIA requests
exemptions to state FOI laws, 95–96
Federal Advisory Committee Act (1972), 51n63
federal agencies: annual FOIA reports, 87, 111–12; chief data officers, 225n49; civil servants and secrecy, 138, 143–45; courts’ deference to withholding by, 4, 64–65, 142, 145, 148, 155, 231–32, 240, 267n31; distrust of the public and FOIA opposition, 27–28; executive privilege and FOIA opposition, 24–26; faith in executive branch’s judgement revealed by FOIA opposition, 26–27; FOIA compliance dependent on law-abiding civil service, 145–46; FOIA compliance dependent on presidential signals, 126; FOIA logs, 76, 86–87, 100, 121; FOIA opposed on grounds of cost, 23–24; FOIA review process, 229–30; and GWOT initiatives (see Global War on Terror); and the IG system, 169 (see also Inspectors General); importance of record-keeping, 138; improving FOIA process through performance analytics, 219; material related to internal personnel rules and practices exempted from FOIA, 17; meaning of FOIA shaped by opposition of, 14–15, 28 (see also Clark, Ramsey: memorandum); and misdirected FOIA requests, 256; and open data policies, 191–93, 210 (see also open data); opposition to FOIA generally, 13–15, 23, 28; patterns in media FOIA requests at, 120–23 (see also news media and FOIA); proactive (affirmative) disclosure suggested, 128–29; public scrutiny deemed detrimental to operations of, 24; regulation of the economy and FOIA, 15–20; request types categorized, 100; response times for FOIA requests, 19, 82, 85, 92, 206, 229; withholding of information by, 4, 226, 229–31, 260 (see also denial of FOIA requests). See also civil servants; executive branch; national security agencies; use of FOIA; and specific agencies and departments
Federal Bureau of Investigation. See FBI
Federal Communications Commission, 17
Federal Highway Administration, 121
Federal Labor Relations Authority, 121
Federal Reserve Board, 16
Federal Trade Commission (FTC), 84, 121–22
fees: for federal FOIA use, 23–24, 84, 96–97, 100, 124, 170, 173, 256; for foreign RTI requests, 256; for state FOI law use, 94, 96–97, 110
Finland: Brazil compared with, 281–82; cabinet, 271; Corruption Perception Index score, 297; geopolitical position, 275, 288n26; history of FOI measures in, 251, 274, 275; media in, 271, 275; transparency-as-monitoring paradigm in, 269, 274–75
First Amendment: campaign to establish Press Clause as shield, 54; corporate rights under, 36, 45n16; Cross on the right to know and, 55 (see also Cross, Harold); Emerson on the right to know and, 58–60 (see also Emerson, Thomas I.); Meiklejohn on the right to information and, 67n6; as negative right, 35, 37, 44nn6, 8, 10; positive right to information not guaranteed, 34, 37–39, 48nn43, 46, 253–54. See also freedom of religion; freedom of speech; freedom of the press
first-person FOIA requests, 8, 75, 78–81; assistance not provided, 255–56; equal right of access, 27; immigration-related requests, 78, 79, 82; need for records poorly served by FOIA, 81–83; as percentage of overall requests, 124; proposed alternatives, 81–82, 86. See also state FOI laws: first-person requests; and specific agencies
Flint, Michigan, water supply, 91
FOIA: adversarial nature of, 269, 275, 286n3; amendments (see amendments to FOIA); appeals (see courts; litigation; and specific cases); basic features/terms, 2, 3, 14, 52; benefits and positive impacts (see benefits of FOIA); canonicity, 2; costs (see costs of FOIA); and democracy (see democracy); denial of requests (see denial of FOIA requests); drawbacks and negative impacts (see drawbacks of FOIA); effectiveness (see effectiveness of FOIA); enacted, 2, 13–14, 177, 226, 228, 251; exemptions to (see exemptions to FOIA); federal agencies and (see federal agencies); fiftieth anniversary, 3, 73; foundations of (see foundations of FOIA); and the Global War on Terror (see Global War on Terror); Inspectors General and (see Inspectors General); interpreting FOIA’s past and present, 3–4; as model for FOI measures elsewhere, 2–3, 249–52, 261–64 (see also foreign FOI laws; state FOI laws; and specific states and countries); news media and (see news media and FOIA); objective of, 73, 135, 226, 228; Officers, 170, 218, 219, 225n49; and open data policies (see open data); partisanship and, 273–74; as part of an “ecology of transparency,” 136–47; quasi-constitutional status, 3–4, 6, 62–64; reforms (see amendments to FOIA; reforming FOIA); as “remedy” for absence of constitutional right to information, 39–42; requests and use of (see commercial FOIA requests; first-person FOIA requests; use of FOIA); respecting without romanticizing, 5–8; scope, 7, 254–55 (see also specific areas of coverage or noncoverage); stability and entrenchment of, 41; sustainability, 153–54; and transparency paradoxes (see transparency); U.S. RTI Rating and, 251, 254, 255–56, 257–58 (see also Right to Information Rating). See also government accountability; right to information; transparency
“FOIA Is Broken” (2016 report), 4, 229
Food and Drug Administration (FDA): chain restaurants required to disclose calorie counts, 193; commercial FOIA requests, 19, 76, 77, 81, 89n22; FOIA costs, 24
foreign FOI laws, 4, 249–64; appeals, 258–60, 264; exceptions and refusals, 256–58, 262, 264; fees, 256; FOIA as model, 2–3, 249–52, 261–64; growth of, 251; in Latin America, 9, 276–86, 277, 279, 289nn40–41, 290n56 (see also specific countries); promotional measures, 260–61, 262; public interest balancing tests, 234–35; requesting procedures, 255–56; response time limits, 252; right of access (constitutional or statutory), 253–54, 262, 263–64; RTI as fundamental right, 253–54, 264, 266n20; sanctions and protections, 260, 262; scope, 254–55, 262, 264. See also Right to Information Rating; and specific countries
Foundations for Evidence-Based Policymaking Act (2017), 212, 223n29
foundations of FOIA (historical and conceptual): Administrative Procedure Act (1946), 14, 48n48, 52, 55, 226, 228; agency and White House opposition generally, 13–14 (see also federal agencies); agency distrust of the public, 26–27; campaign to establish a FOI law, 6, 53–58, 67nn6, 9; Clark memorandum, 17–18, 21, 23; Emerson’s views on the right to know, 58–60; FOIA as administrative act, 52–66; FOIA as part of group of transparency and accountability reforms, 166; FOIA enacted, 2, 13–14, 177, 226, 251; key elements/terms of FOIA, 2, 3, 14, 52; meaning of FOIA shaped by agencies’ opposition, 14–15, 28 (see also exemptions to FOIA; federal agencies); national security and, 8, 20–23 (see also national security); negative and positive rights (generally), 34–37, 42–43, 44nn6, 8, 10, 44–45n12, 45nn16, 18; objective of FOIA, 73, 135, 226, 228; presumption of disclosure created, 14; regulation of the economy and FOIA, 8, 15–20; right to information not constitutionally guaranteed, 37–39, 48nn43, 46, 253–54, 296; Rumsfeld as sponsor, 158; statutory vs. constitutional approach to access to information, 39–43, 48n47, 50n57, 53–66; title, 57–58; transparency as impediment to policymaking, 8, 23–26
freedom of the press: and famine, 156, 190; as fundamental right, 266n20; and leaked/stolen information, 37, 47n36; Liebling on, 46n28; right to information not constitutionally guaranteed, 37–39, 48nn43, 46 (see also right to information); value of constitutional guarantee, 266n21. See also First Amendment; news media; news media and FOIA
Freedom of the Press Act (1766; Sweden), 251, 269. See also Sweden
Freedom or Secrecy (Wiggins), 54
Gannett Co. v. DePasquale, 47n41
Gannett New Jersey Partners, LP v. County of Middlesex, 109
Gideon v. Wainwright, 35, 37
Global Impunity Index, 298, 299
global positioning system (GPS), 190–91
Global War on Terror (GWOT), 135–56; failure of concealment efforts, 142–45; FOIA and institutional leverage, 150–53; FOIA disclosures crucial to public understanding of, 6; FOIA exemptions invoked, 141; FOIA requests related to, 139–40; FOIA’s role in GWOT accountability, 136, 137–38, 148–53; institutional checks and balances and, 137–38; internal investigations, 149–50, 160–61n18; pathologies of, 155; prerequisite knowledge for FOIA requests, 140–45; record-keeping crucial for accountability, 138. See also Rumsfeld, Donald
government accountability: agency opposition to FOIA and, 17; bureaupathology paradox and, 167, 168, 169–72, 181; and the expectations gap paradox, 167, 169, 177–81, 182; and the expertise paradox, 167, 168–69, 172–77, 181; FOIA’s role in GWOT accountability, 136, 137–38, 148–53 (see also Global War on Terror); interrelatedness of transparency and, 167; monitory tools, 166 (see also FOIA; Inspectors General (IGs); state FOI laws); output transparency and, 192 (see also output transparency); oversight interests well served by FOIA, 85; public vs, nonpublic loci of accountability, 178–79. See also corruption; federal agencies; FOIA; foreign FOI laws; state FOI laws; transparency
Guide to the Freedom of Information Act (DOJ, 2015), 25
Habitat for Humanity, 119
Health, Education, and Welfare, Department of (HEW), 15–16, 23
Hellerstein, Alvin, Judge, 147, 150
The Hill (newspaper and website), 122
historical record, learning from, 200–201
The Hollow Hope: Can Courts Bring About Social Change? (Rosenberg), 49n55
Housing and Urban Development, Department of (HUD), 119
“How a Tip About Habitat for Humanity Became a Whole Different Story” (Rochabrun), 119
Huvelle, Ellen Segal, 147
immigration: detainees’ identities revealed by INS, 143; enforcement policies, 156–57, 163nn43–44; FOIA as tool for rights advocates, 157, 163n43; FOIA requests related to, 78, 79, 82
Immigration and Naturalization Service (INS), 143
information collection, FOIA exemptions related to, 17–18
Information Security Oversight Office, 146, 155
information volatility, 142–43
INPUT (information reseller), 123
Inside Washington Publishers, 122
Inspectors General (IGs): bureaupathology paradox and, 169–72, 181; costs, 169–70; departments/agencies with, 138; DOJ IG’s investigations/reports on GWOT practices, 143, 149; and the expectations gap paradox, 177–81, 182; expertise paradox and, 172–77, 181; IG system established, 155–56, 169, 177; Inspector General Act(s) and reforms, 169, 170, 180; publishing of reports/reviews by, 171, 174–75; relationship between FOIA and, 167–68; role, duties, authority, and independence, 138, 167, 171, 180
insurance underwriting firms, 80
Interior Department, 18, 121
International Open Data Charter, 213
investigative journalism and FOIA, 116–31; benefits and costs, 123–25; FOIA use in prize-worthy investigative reporting, 117–20; frequency of FOI requests, 6, 116, 121, 123, 129; local vs. other/niche media, 116, 121–22, 123; patterns in FOIA requests at federal agencies, 120–23; working with large data sets, 118, 175–77. See also news media and FOIA
“Invisible Wounds” (KARE-11 story), 119–20
KARE-11 (NBC affiliate), 119–20
Kessler, Gladys, Judge, 147
Kreimer, Seth F., 311; chapter by, 5, 6, 9, 135–65; on the “ecology of transparency,” 3; on framing FOIA requests, 140, 173
Kwoka, Margaret B., 311; chapter by, 9, 73–90; commercial FOIA requests analyzed, 19, 51n69, 100; commercial sector found to be primary FOIA users, 6, 8, 50n59, 51n69, 92, 173; concerns over private-interest requesters, 7; noncommercial requester statistics, 103; proactive release of information suggested, 111
Lakeland Times (Wisconsin newspaper), 108
Landmark Communications, Inc. v. Virginia, 47n36
Latin America: FOI (RTI) laws, 9, 276–86, 277, 279, 289nn40–41, 43, 290n56; news media, 282, 283–84, 290n59, 301; Panama Papers scandal, 304; Right to Information (RTI) Ratings, 275, 277, 284, 289n40, 295. See also specific countries
Law of Public-Private Associations (Mexico, 2011), 303–4
Lebovic, Sam, 312; on the campaign for FOI legislation, 54; chapter by, 5, 8, 13–33
Lindstedt, Catharina, 271
litigation: FOIA statistics, 240; GWOT-related litigation, 146, 150–51, 152, 161n28; immigration policy-related FOIA lawsuits, 157; judicial enforcement of FOIA, and its limitations, 230–32; under New Jersey’s OPRA and common law, 234; news media FOIA lawsuits, 124–25; over DOJ Blue Book, 239; over nonprofit tax returns, 214, 224n40; procedure for FOIA litigation, 232; public interest balancing and, 237–41; Shell Oil lawsuit, 18. See also courts; Supreme Court; and specific cases
“Making Open and Machine Readable the New Default for Government Information” (Executive Order, 2013), 211
Marshall, Thurgood, Justice, 196–97
McCarthy, Joseph (“Joe”), 25, 56
“Medicare Unmasked” series (Wall Street Journal), 118–19
Meiklejohn, Alexander, 67n6
Mendel, Tony, 312; chapter by, 7, 9, 249–68; on the growth of RTI laws, 251; on the U.S.’s RTI Rating, 251
Mexico: anti-corruption efforts, 293–94; Corruption Perception Index score, 296–98, 297; disconnect between transparency and corruption in, 293–305, 309–10n39; Global Impunity Index score, 298, 299; inequality in, 301–2, 308n24; news media, 283–84, 301; political system, 284, 285; public vs. private sector in, 302–4. See also Mexico’s FOI (RTI) laws
Mexico’s FOI (RTI) laws: adoption date, 253, 283; appeals, 258–59, 277, 283, 290n60, 295; breaking the anti-public sector bias, 302–4; compliance, 279, 283, 291–92; constitutional reforms, 283, 291; corruption and, 9–10, 293–305; costs, 283, 307n16; de jure attributes, 277; and a democratic-expansive understanding of transparency, 293–94; exceptions and refusals, 257–58, 295; executive/presidential impunity, 299–301, 308n20; FOI as contestation, 282–83; INAI and, 282, 283, 284, 285–86, 296, 299, 307n16; as international gold standard, 7; national, unified portal, 283; party politics and, 283, 284, 294, 300, 304; political dynamics behind, 283–84; as poster child of transparency reform, 291; and the private sector, 302–4; promotional measures, 261, 295, 296; public interest balancing, 234–35, 294; requesting procedures and fees, 255–56, 295; request statistics, 283; response times, 296; right of access, 254, 277, 295, 296; RTI Rating, 253, 266n19, 277, 282, 295; sanctions and protections, 260, 295, 298–302; scope of RTI framework, 254–55, 277, 282–83, 295, 302–4; Transparency and Access to Government Information Law, 234–35; U.S. FOIA contrasted with, 285–86, 295, 296. See also Mexico
Milwaukee Journal Sentinel, 108
Mine Safety and Health Administration (MSHA), 121–22
Moneyball for Government (Nussle and Orszag, eds.), 212
NASA (National Aeronautics and Space Administration), 17, 23
National Action Party (PAN; Mexico), 294, 300, 304
National Day Laborer Organizing Network (NDLON), 157
National Endowment for the Humanities, 127
National Environmental Policy Act, 188
National Freedom of Information Coalition, 99, 218
National Institute for Transparency, Access to Information and Personal Data Protection (INAI; Mexico). See INAI
National Labor Relations Board, 16–17, 18, 84
National Science Foundation, 127
national security: abuses of National Security Letters, 152; difficulty of maintaining deep secrets, 142–45; Emerson on exempting from right to know, 58; FOIA critiqued for failure to meaningfully police, 85; FOIA exemption covering, 20–23, 25, 146, 195, 257, 267nn31, 33; leaks of classified information, 143; open data and, 225n50. See also Global War on Terror; national security agencies; secrecy
National Security Agency (NSA), 75, 141
National Security Archive (independent watchdog group), 73, 140, 174
news media: campaign to establish Press Clause as shield, 54; in Finland, 271, 275; First Amendment rights, 35; FOI advocacy by, 273; free press and famine, 156, 190; government support for reporting tools and data, 127; and input transparency, 196–97, 200, 201; in Latin America, 282, 283–84, 290n59, 301; and the public interest, 123–24, 127; and public trust, 182. See also freedom of the press; news media and state FOI laws
news media and FOIA, 116–31; benefits and costs of FOIA, 123–25, 126; COINTELPRO exposed, 160n10; declining use of FOIA, 8, 116, 121, 123, 129; digital-first outlets’ use of FOIA, 125; EPA vs. DHS request filings, 111; FOIA requests by local vs. other media, 116, 121–22, 123; FOIA’s ineffectiveness lamented by journalists, 136; and the Global War on Terror, 139–40, 141 (see also Global War on Terror); journalists expected to be main users of FOIA, 8, 83, 209; journalists’ use of FOIA important, 74; lawsuits, 124–25; media support for FOIA, 6, 41; media use as percentage of FOIA requests, 75; news media interests well served by FOIA, 85; patterns in FOIA requests at federal agencies, 120–23; press campaign and the establishment of FOIA, 53–57, 67n9; purpose of FOIA requests, 116, 118; reform proposals to improve FOIA usefulness for journalists, 116, 126–29 (see also freedom of the press); response times and, 19; use outweighed by commercial sector requests, 4, 18–19, 84–85, 92, 123, 124; working with large data sets, 118, 174–77. See also investigative journalism and FOIA; news media and state FOI laws
news media and state FOI laws: journalists’ use of state FOI laws, 91, 101–9, 102, 103, 104, 106, 107, 108, 111–12; media use of FOI laws declining, 8; own state’s FOI laws often deemed worst by local journalists, 99; press guides to state FOI laws, 93; shield laws and press access to information, 49n49; state FOI requests vs. FOIA requests, 91
New York Times Co. v. United States (Pentagon Papers case), 47n36, 156
Nixon v. United States, 62
No Child Left Behind Act, 179
nongovernmental organizations (NGOs), 95, 140. See also specific organizations
Nuclear Regulatory Commission, 121
Occupational Safety and Health Administration (OSHA), 193
Office of Information and Regulatory Affairs, 198
Office of Information Policy, 217–18
Office of Legal Counsel, 26–27
open data, 6–7, 206–25; appeal and usefulness to government, 210, 212; challenges of using, 219–20; data.gov (website), 191–92, 195–96, 211, 217, 222–23n19, 224n43; defined, 206–7; and FOIA, 208–10, 213–20, 221, 230; high-value data, 191–93, 196, 209–10, 214–15, 224n42–43; history of the U.S. open government data movement, 211–13; internationally, 193, 212–13, 215; open data organizations, 218–19; as policy-making tool, 212, 223n28; political commitment to, 213; principles for design, 214–16, 224n42–43; promise of, 206–8, 220–21; recommendations, 216–20, 225n50; right of action, 214; state and local open data policies/projects, 207, 209, 210, 216, 222n11; users/beneficiaries, 209–10. See also data
Open Government Partnership Declaration, 193, 212–13
Organization of American States’ Rapporteurship on Freedom of Expression, 278
PEC National Security News Service, 122
Pennsylvania: environmental FOI logs analyzed, 103–4, 103, 104, 105, 106, 107, 108; FOI enforcement, 97; FOI law, 93, 95, 96, 99
Pentagon Papers case, 47n36
political systems and transparency, 269–90; cabinet composition, 270, 271; contestation systems vs. consensus systems, 269–76, 284–85, 286nn1–2; at the local level, 272; transparency-as-leverage paradigm, 269–71, 272–74, 276, 278–86; transparency-as-monitoring paradigm, 269–72, 274–76, 278–82, 285–86
Pozen, David E., 312; on the adversarial aspect of FOIA, 286n3; and affirmative (proactive) disclosure, 128, 172; on the arbitrariness of FOIA application, 50n59; Congress and leakers as alternatives to FOIA, 158; on “due process” benefits of FOIA use, 82; on the flaws of FOIA, 128–29, 160n9, 206; on FOIA as “reactionary,” 128–29, 136; on FOIA as super-statute, 63; on FOIA costs, 125, 136, 159n7; on FOIA’s (in)efficiency, 85; on judicial deference, 267n31; on the negative impacts of FOIA, 5, 163n42; on secrecy and the First Amendment, 69n23; on U.S. system as “agent controlled transparency,” 271
president, U.S.: administrative prerogative over executive branch secrets, 56, 267n31; Emerson on president’s privilege, 58; and FOIA compliance broadly, 126; not covered by FOIA, 168, 254. See also executive branch; and specific presidents and administrations
Presidential Records Act, 203
privacy: balancing public interest with personal privacy interest, 229–30, 232, 235–36; Cross skeptical re privacy rights/interests, 54; FOIA Exemption 6 covering personal information, 141, 195, 229–30, 232, 235, 267n33; free citizens’ need for, 5; open data and personally identified information, 225n50; right to information vs. privacy rights, 48–49n49, 58–59
private entities and the private sector: constitutional liberties not guaranteed against restriction by, 35, 44–45n10; corporate speech and religious freedom rights, 36, 45n16; in Mexico, 302–4; not subject to FOIA requests, 7, 20, 255; requiring output transparency from, 193. See also commercial FOIA requests
privileges, law of, 49n49
proactive disclosure: as active transparency, 270 (see also transparency: active vs. request-based); benefits of, 188, 191–95; in Brazil, 280; of IG reviews, 171; open data policies (see open data); physical/digital infrastructure required for, 172; as regulatory approach, 193; required by FOIA amendments, 172; suggested as alternative/addition to FOIA, 81–83, 86, 111–12, 128–29. See also information access
public disclosure, fear of, 155
public interest: agency understanding/distrust of the public, 27–28; audit culture and, 179; balancing personal privacy interest with, 229–30, 232, 235–36; discretionary FOIA exemptions and, 229–30; and the global war on terror, 6 (see also Global War on Terror); journalism’s role, 123–24, 127; output transparency and, 188; and political accountability, 73–74. See also citizens; public interest override; public trust in government
public relations approach to transparency reform, 293
Public.Resource.org v. U.S. Internal Revenue Serv., 214, 224n40
public sector, bias against, 7, 302–4
Reducing Over-Classification Act (2009), 168
Reforma (Mexican newspaper), 283
reforming FOIA: costs of implementing reforms, 128; government output, increasing disclosure of, 6 (see also output transparency); proactive (affirmative) disclosure suggested, 81–83, 86, 111–12, 128 (see also proactive disclosure); proposals to improve FOIA usefulness for journalists, 116, 126–29; public-interest balancing test needed, 6, 227–28, 235–38; in relation to open data, 216–20; shrinking FOIA sensibly, 85–87. See also amendments to FOIA
Regional Alliance for Freedom of Expression and Information, 278, 289n43
regulatory impact analyses (RIAs), 193–95, 194
regulatory state: agency concerns re FOIA impact on, 15–18 (see also federal agencies); cost-benefit analysis of regulations, 193–95, 194; information disclosure as regulatory approach, 193; input transparency and, 197–204; negative impacts of FOIA on, 19–20, 85, 156, 163n42; positive impacts of FOIA on, 156–58, 163nn43–44, 164n48–49, 164–65n50
Reinventing Government initiative, 170
Republican Party, and FOIA, 13
Revolutionary Institutional Party (PRI; Mexico), 283, 294, 304
Richmond Newspapers, Inc. v. Virginia, 47n41
Right to Information (RTI) Rating, 9, 250, 252–53; appeals, 258–60, 264, 295; exceptions and refusals, 257–58, 262, 264, 295; of Latin American countries, 275, 277, 284, 289n40, 295; promotional measures, 260–61, 262, 295; requesting procedures, 255–56, 295; right of access, 253–54, 262, 263–64, 266nn20–21, 295; sanctions and protections, 260, 262, 295; scope, 254–55, 262, 264, 295; of specific countries, 253, 266n19, 295 (see also specific countries); U.S. FOIA law and, 251, 254, 255–56, 257–58, 259, 260–61. See also right to information
right to information (RTI; right to know), 34–51; common law right, 233–34; Cross’s campaign for, 54–58, 67n6; desirability of, 39, 49n51; Emerson on, 58–60; established through FOIA, 63, 228–29; exceptions key to RTI laws, 256–58; feasibility of state transparency, 65–66; FOIA’s global influence, 2–3, 249–52, 261–64 (see also foreign FOI laws; and specific countries); as fundamental right, 253–54, 264, 266n20; and government action in the public interest, 190; limited to FOIA’s statutory terms, 52; not guaranteed in U.S. Constitution, 8, 37–39, 48nn43, 46, 253–54, 296; Pope on, 56; vs. privacy rights, 48–49n49; statutory vs. constitutional approach, 39–43, 48n47, 50n57, 53–66. See also FOIA; foreign FOI laws; Right to Information (RTI) Rating; transparency; and headings related to FOIA; and in specific countries
Rumsfeld, Donald, 13, 158
Salovaara-Morring, Inka, 275
Schauer, Frederick, 312; chapter by, 6, 8, 34–51; on FOIA’s impact/status, 63
secrecy: APA exemptions, 67n8; courts not historically a bulwark against, 64–65; difficulty of maintaining deep secrets, 142–45; expansion of state secrecy despite FOIA, 52–53; FOIA exemptions and (see exemptions to FOIA); government tendency documented by Cross, 54–55; GWOT initiatives shrouded in, 140–42, 152, 155 (see also Global War on Terror); knowledge of secrets a prerequisite for FOIA requests, 140–45, 173; legitimated by FOIA, 5; national security need for secrecy acknowledge by transparency advocates, 21; and political negotiation/decisionmaking, 5; president’s administrative prerogative over executive branch secrets, 56; and the rise in FOIA denials, 227. See also national security; national security agencies; and specific agencies
Securities and Exchange Commission (SEC): BrightScope and, 210; commercial FOIA requests, 19, 76, 77, 81, 124; concerns about FOIA, 16; EDGAR database website, 81; FOIA costs and fees, 124
Sentelle, David B., Judge, 239
Society of Professional Journalists, 73
State Department: “Dissent Channel,” 155; and FOIA costs, 23; and hypothetical discussions on air quality regulations, 198; independent Inspector General, 138; initial concerns re FOIA, 20–21; review of H. Clinton emails, 176; Vice News request for Clinton emails, 125
state FOI laws, 3–4, 91–115; background, 92–93; commercial requests, 94, 104, 104; common critiques (ratings and effectiveness), 98–100; differences between, 93–98; enforcement, 97–98; exemptions, 95–96; fees, 94, 96–97, 110; first-person requests, 63, 93–94; journalists’ perception of, 99; media use of, 91, 101–9, 102, 103, 104, 106, 107, 108, 111–12 (see also news media and FOI laws); open data policies/projects, 209, 222n11; proactive release of information suggested, 111–12; record retention requirements, 96; request logs, 92, 100–111; response times, 92, 94, 99, 111; success stories, 91; used for political purposes, 110–11
Stewart, Potter, Justice, 34, 38
Sunstein, Cass R., 313; chapter by, 6, 9, 187–205; on FOIA reforms, 26; Sen invoked, 156
Supreme Court: and access to criminal trials, 38, 47n41; and the balancing of public and personal privacy interests, 235–36; book about, 196–97; and the consideration of non-state entities’ actions as state actions, 45n12; and executive privilege, 62; on the First Amendment and the right to information, 38, 253–54; and GWOT-related cases, 142, 148, 150–51, 161n28; on the judiciary’s role in FOIA cases, 231; lawmaking by litigation, 42, 51n61; and the national security exemption, 22; rulings’ effect on public attitudes, 40, 49–50n55; and states’ right to restrict FOI requests to residents, 93. See also specific cases
Taguba, Antonio, Gen., 144, 150
Tennessee Valley Authority (TVA), 121
Toxic Release Inventory (TRI), 193
Transactional Records Access Clearinghouse (TRAC), 85
transparency: 20th-century wave of reforms, 166; abuse not always prevented by, 158; and accountability, 192 (see also government accountability); active vs. request-based, 270–71 (see also use of FOIA); benefits, 188–89, 190–93, 195–96, 197–201, 202, 203–4; bureaupathology paradox and, 167, 168, 169–72, 181; constitutional vs. statutory approach, 39–43, 48n47, 50n57, 53–66; Constitution and, 34, 135 (see also Constitution, U.S.); costs, 189, 194, 197, 200–204 (see also costs of FOIA); democratic-expansive understanding of, 292–94; and democratic values, 182 (see also democracy); disconnect between corruption and, 294–302 (see also corruption); drawbacks (deleterious impacts), 5, 168–69 (see also drawbacks of FOIA; and specific areas of impact); expectations gap paradox and, 167, 169, 177–81, 182; expertise paradox and, 167, 168–69, 172–77, 181; feasibility of, 65–66; FOIA and optimality, 154–56; FOIA as part of an “ecology of transparency,” 136–37, 148, 152, 153–58 (see also Global War on Terror); FOIA compliance dependent on presidential signals re, 126; input transparency, 188, 189, 196–204; internal watchdogs, 149, 168 (see also Inspectors General); interrelatedness of accountability and, 167; in Latin America (see Latin America); monitory tools, 166 (see also FOIA; foreign FOI laws; Inspectors General (IGs); state FOI laws); negative impacts of, 48–49n49; Obama administration and, 191–93 (see also Obama administration); output transparency, 187–96, 203, 204; oversight key to, 286; proactive release of information suggested, 128–29; and regulation of the economy, 15–20; resistance to, 305, 305n2 (see also denial of FOIA requests); respecting without romanticizing, 5–8; robustness of a broad FOIA regime, 153–54; transparency-as-leverage paradigm, 5, 269–71, 272–74, 276, 278–86; transparency-as-monitoring paradigm, 269–72, 274–76, 278–82, 285–86; transparency skepticism, 1 (see also Pozen, David E.); Trump administration and, 126. See also FOIA; foreign FOI laws; government accountability; open data; open government policies; political systems and transparency; proactive disclosure; right to information; secrecy; state FOI laws; transparency advocates; and headings related to FOIA
“Transparency and Public Policy: Where Open Government Fails Accountability” (Cohen), 128
United States Citizenship and Immigration Services (USCIS), 229–30
United States v. Alvarez, 44n10
University of Florida, Marion Brechner Citizen Access Project, 99–100
U.S. Citizenship and Immigration Services, 82. See also immigration
USDA Food Safety and Inspection Service (FSIS), 121–22
use of FOIA: adversarial requests, 209 (see also transparency: transparency-as-leverage paradigm); anyone empowered to use, regardless of standing, 14, 139, 173, 254; assistance not provided, 255–56; bureaupathology paradox and, 169, 170, 172, 181; expectations gap paradox, 177–78, 180–81; expedited processing requirements, 141; expertise required, 172–77, 181; fees, 23–24, 84, 96–97, 100, 124, 170, 173, 256; FOIA request logs, 76, 86–87, 100, 121; during the GWOT (see Global War on Terror); information withheld (see denial of FOIA requests); journalists expected to be main requesters, 8 (see also news media and FOIA); making effective FOIA requests, 140, 141, 173–74; by the news media, 74–75; by NGOs, 140; by noncitizens, 27, 78, 79; prerequisite knowledge and, 140–45, 173; private vs. public benefits, 80–81; proposed alternatives, 81–82; reasons for FOIA requests, 75–76 (see also commercial FOIA requests; first-person FOIA requests); request statistics (2014–15), 170; single electronic portal called for, 217; usage rates, 3, 10n2, 74, 170, 206. See also news media and FOIA; and specific agencies
U.S. House of Representatives Committee on Oversight and Government Reform. See “FOIA Is Broken” (2016 report)
Veterans Health Administration (VHA): first-person FOIA requests, 78, 80, 82, 83; Minneapolis VA hospital troubles, 119–20
Watergate: IG system born in wake of, 155–56, 177; “institutionalized checks and balances” and, 136, 137; Nixon’s abuse of executive privilege, 136, 156, 200; transparency increased after, 137, 149, 274
White House Counsel’s Office, 219
Wiggins, James Russell, 54
wiretapping, illegal, 140, 141
World Wide Web Foundation, 213, 215