File folders in a filing cabinet.

Strengthening the Freedom of Information Act in 2023

By Mitchell Berger, MPH

While the Freedom of Information Act (FOIA) (5 U.S.C. § 552) and agency implementing regulations generally are fairly concise, FOIA still has led to considerable litigation.

What is an agency record? Should contractors be covered by FOIA? How and under what circumstances should a given FOIA exemption apply? How should FOIA search and duplication fees be charged by agencies, and what level of fees are reasonable? Debate continues about these and many other issues, but even amidst this debate opportunities abound to support FOIA implementation in the year ahead.

Since its enactment in 1966, members of both major parties have supported FOIA and continue to do so, though at that time FOIA was not warmly welcomed by all.

FOIA’s premise is relatively simple. As the Congressional Research Service puts it: “[i]n FOIA, Congress sought to establish a statutory scheme that embodied ‘a broad philosophy of ‘freedom of information’ and ensured ‘the availability of Government information necessary to an informed electorate.’”

FOIA is among the most democratic of America’s laws. Anyone can use it. Even foreign nationals and organizations can file a FOIA request of US federal agencies. Federal employees themselves file FOIA requests in federal sector Equal Employment Opportunity or similar cases. FOIA requests (logs) can themselves be FOIAd. Whether it is an environmental group trying to learn more about approval of a pesticide, a media organization seeking to obtain communications from a federal leader, or an unsuccessful grant applicant trying to understand what constitutes a successful application, federal agencies typically receive more than 700,000 FOIA requests each year.

Upon receiving a FOIA request, federal agencies are given a limited timeframe to review records, redact or withhold records based on nine specific exemptions and three exclusions and then provide these records to their requester(s). Exemptions cover such records as trade secrets, national security and law enforcement issues, personal privacy (e.g., medical records), disclosure of records prohibited by other laws and agency internal deliberative/policymaking records. Exclusions pertain to criminal investigations and national security issues. Fees for FOIA record searches and duplication fees may be charged. Requesters can appeal the Agency’s response to their request(s) and ultimately sue in federal court.

FOIA backlogs have increased during COVID-19 and now exceed 140,000, according to the Government Accountability Office. Most requesters are neither able nor willing to find court battles, making it difficult in practice to enforce FOIA.

Fortunately, much could be done to strengthen FOIA in the coming year.

The Office of Government Information Services, created in 2009 to help mediate disputes between FOIA requesters and federal agencies, could be granted by Congress the authority to issue “binding” mediation orders — as well as staff adequate to fulfill its important mission. Congress also can ensure that agencies as well have adequate staff and funding to fulfill FOIA requirements. Agencies can staff more FOIA positions at the GS-14 or GS-15 level (or equivalent in other federal pay systems), reflecting the law’s importance and providing these staff with the political clout to fulfill their important responsibilities. In keeping with recent Dept. of Justice FOIA guidance, and the spirit of FOIA, agencies can ‘proactively’ disclose documents in which the public may have interest without first waiting for a FOIA request.

With such steps, FOIA can continue to prove an important tool — one that ultimately benefits federal agencies and employees, as well as the general public.

Note/disclaimer: The author has worked in public and behavioral health for federal and local government agencies and as a member of the trade press. He has himself filed FOIA requests. The opinions expressed are solely those of the author and should not be imputed to any other individual nor to any public or private entities.

The Petrie-Flom Center Staff

The Petrie-Flom Center staff often posts updates, announcements, and guests posts on behalf of others.

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