FOIA at 51: Still going strong, but real improvements are needed

Roseanne Gerin SABEW Board Member SABEW First Amendment Committee Member @RoseanneGerin

July Fourth is not only the birthday of our nation, but also the anniversary of the enactment of the Freedom of Information Act (FOIA)—the groundbreaking law enabling all persons, and in particular journalists, to obtain nonexempt information from any federal government agency.

At first glance, it appears as though the law, which turns 51 this year, has benefitted from recent improvements.

This time last year, just before FOIA’s semicentennial anniversary, President Barack Obama signed into law the FOIA Improvement Act of 2016, the most recent amendment to the original law since 2007.

An effort to make data and information more accessible, the 2016 act codified concepts Obama introduced at the beginning of his administration in 2009, including the “presumption of openness” under FOIA for all government records, requiring agencies to release information requested unless there is a “foreseeable harm to an interest protected by an exemption” or a legal requirement to withhold them.

The law also limited the time that agencies can keep internal deliberations confidential to 25 years and created a Chief FOIA Officers Council “to develop recommendations for increasing compliance and efficiency in responding to FOIA requests.”

Though the 2016 act reversed a Bush administration policy that had encouraged agencies to limit discretionary disclosures of information, some FOIA experts contend that Obama did little to live up to the spirit of the act, citing the secrecy of his administration.

Now under the nearly seven-month-old Trump administration, we have a president who revels in accusations of media spreading fake news, frequently insults members of the press, undermines journalists’ access to information by banning them from briefings, and pushes the envelope with his executive power by issuing orders that flout laws and policy.

“Obama was one of the most secretive presidents in our modern history, and Trump appears to be on track to top that,” says David Cuillier, director of the journalism school at the University of Arizona who has advocated for FOIA improvements.

Given Trump’s hostility toward the press, experts are watching cautiously to see if the current administration will try to undo Obama’s “improvements” by introducing further changes or directives to federal agencies that would undermine FOIA.

At 51, FOIA is still relevant but has a long way to go to ensure total transparency and the public’s unhindered access to information about its government.

“The law is far from perfect, but it is still relevant today because it gives all of us the legal right to see what officials are doing on our behalf,” says Aaron Mackey, an attorney who works on FOIA legislation for the Electronic Frontier Foundation, a San Francisco-based nonprofit organization defending civil liberties in the digital world.

Regardless of who is in the White House, agencies continue to lack manpower and other resources to respond to the growing number of information requests. They also continue to use loopholes in the law to engage in denial, redaction, and exemption overuse tactics, stymieing the public’s right to access information and forcing news outlets to file costly lawsuits to obtain requested records.

“Overall the Trump administration does not appear to be on a good trajectory when it comes to transparency overall,” says Ciullier, who is also a board member of the National Freedom of Information Coalition and the First Amendment Coalition of Arizona.

“We see that through the increasingly controlling tactics in White House press briefings and the removal of data from agency websites,” he says.

This is why it’s crucial now more than ever for citizens and journalists to press their leaders for further improvements to FOIA and preempt a possible rollback to a time when a legal guarantee of access to government information was nonexistent.

So what real improvements should citizens and journalists be pushing the government for to overcome FOIA’s chronic problems?

FOIA experts cite the following measures:

  • Making further amendments that strengthen the public’s right to know, such as a provision allowing judges to hear FOIA cases to consider whether the public interest in disclosing records outweighs any purported harm that agencies claim. Congress could also amend FOIA to require affirmative disclosure of myriad records, thereby automatically increasing government transparency and eliminating the need for the public and journalists to file requests.
  • Improving agencies’ response time by requiring that they make FOIA an essential part of their public service mission instead of just a hassle or an afterthought.
  • Providing resources to government agencies so they can hire more people and adopt technology that automates the processing and disclosure of records to eliminate excessive delays and reduce request backlogs.
  • Reducing the number and scope of FOIA’s nine exemptions.
  • Punishing government employees who are arbitrary and capricious about compliance with FOIA.
  • Adding a requirement to existing FOIA legislation that government officials must talk to journalists if they are asked to do so.
  • Tasking the Office of Government Information Services or an independent entity with enforcing FOIA.
  • Strengthening enforcement provisions, including mandatory attorney-fee provisions for those who prevail in court cases and the imposition of penalties of up to $100 per day for each day a prevailing requester is denied the record.
  • Adopting a constitutional amendment making the public’s ability to access government information a constitutional right.

The 2016 makeover under the Obama administration didn’t go far enough to remove the wrinkles in FOIA when the law turned 50.

Now, a year—and a new administration later—the law still suffers from the same old shortcomings with the possibility of facing further reductions in openness and transparency in government.

If the government embraces these changes—or at least some of them—the provisions and enforcement of FOIA will become stronger and ensure that the law continues to do its job of keeping citizens in the know about their government in the decades to come.

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