Repairing FOIA: Shining a Brighter Light on Government Actions

By Zach Brown, Public Citizen

Above all else, information is meant to be shared.

While this statement could be applied to a variety of different circumstances it couldn’t be truer than when it comes to information about our government’s actions. Just as telescopes provide us grand images of the stars and microscopes provide insight on a cellular level, everyday Americans have a special tool for learning about the operations of government agencies: The Freedom of Information Act. For more than 50 years, the Freedom of Information Act has provided members of the public with the right to information about governmental activities and has led to bombshell discoveries across the nation and spurred critical accountability actions.

However, over time, FOIA’s revealing light on government actions has unfortunately been dimmed quite a bit.

One of the main problems information requesters face is government agencies’ overuse of FOIA exemptions to keep information away from the public. FOIA’s exemptions to disclosure are supposed to be narrowly construed, but too many times these exemptions have been overused and interpreted broadly by federal agencies to put a lamp shade on FOIA’s illuminating power.

For example, just last year in the aftermath of a newly passed COVID-19 relief package, the American public rightfully wanted to know who was receiving the small business loans. Pretty reasonable, right? But how did the Small Business Administration respond? By citing FOIA exemption 4 (exempting confidential commercial information from disclosure) and FOIA exemption 6 (meant to protect private personal information from disclosure). And if you’re reading this wondering how on Earth does the name of a business receiving a pandemic small business loan fall under this exception, you’re definitely not alone, as a Federal Judge found that neither of the exemptions offered fit the bill and ordered that this information be shared (and the revelations highlighted that more transparency was definitely needed).

Furthermore, this longstanding overuse of exemptions by agencies has been compounded by court decisions that constrain the public’s right-to-know. For example, in the 2019 U.S. Supreme Court case Food Marketing Institute v. Argus Leader Media, the longstanding legal test for when information can be withheld as “confidential” commercial information under FOIA’s fourth exemption was set aside. The prior test looked at whether the information would cause substantial competitive harm. The Supreme Court’s decision, however, looked at whether the information is actually and customarily treated as private and whether the government assured that it would be kept confidential. Under this test, information can be withheld even if releasing it would cause no harm to the company.

In addition to overuse of exemptions, outdated technologies and insufficient allocation of resources oftentimes slows down the FOIA process to a snail’s crawl. For instance, even though the law states a 20-day deadline for government agencies to respond to FOIA requests, this goal is seldom met. Requesters often don’t receive responses to their FOIA requests for years.

Reforms to increase government transparency are urgently needed.

Luckily, we’re not in the fight alone.

Last year, 40 advocacy organizations and experts began working together to craft a much-needed plan to address the gaps in our current system of government disclosure. And while the full report is far more expansive than FOIA and open government, the Accountability 2021 plan detailed various steps that need to be taken to improve government transparency.

For one, FOIA is in desperate need of some legislative reform—let’s call it installing a brighter bulb in the FOIA flashlight. Congress should pass legislation that implements a balancing test regarding when FOIA’s exemptions can be used that requires agencies and courts to weigh the interest in withholding information with the public’s interest in obtaining the information. Additionally, FOIA reform must address the Food Marketing Institute decision and clearly state that exemption 4 only applies to records whose release would cause substantial competitive harm. In a similar vein, it’s also imperative that we pass legislation to clarify the language of FOIA to ensure that the federal court system’s authority to hear FOIA cases includes the explicit power to require agencies to make records affirmatively available to the public, not just to the FOIA requester. And, if the government were required to proactively share more information without requiring people to request it via FOIA, it would definitely save us all some time!

Additionally, like switching to energy efficient light sources, the FOIA process urgently needs to be brought into the year 2021. The government should be investing in modernizing the recordkeeping of federal agencies and providing them with the technological tools needed to more easily access and retrieve requested documents. And not only does recordkeeping need to be modernized, but it also needs to be uniform and usable to everyone, regardless of whether they are sighted. In the wake of Trump’s secrecy-addled administration, it’s time for our federal government to take the future of transparency in government seriously. The American people deserve it.

Thus, our fight for transparency and accountability must be unwavering. Just last week, Adina Rosenbaum, an attorney from Public Citizen’s Litigation Group, spoke at a virtual briefing organized by Open The Government explaining both the expansive uses of FOIA and the urgent need for its reform. In her presentation, Rosenbaum reiterated that while under FOIA, agency records should be presumed to be public records unless they meet an exemption, in practice, it often seems that agencies are actively searching for ways to withhold information rather than doing their best to share information. Therefore, our advocacy must also work to change the culture of government secrecy itself, stressing that bolstering FOIA not only benefits the public, but the agencies themselves.

Public Citizen will continue to advocate for progressive reform to increase transparency and accountability.

FOIA’s light on our government’s actions isn’t one we can afford to let flicker further.

This blog post by Public Citizen originally appeared here.