CommentaryJURIST Guest Columnist Jonathan Bruno of the Harvard Law School discusses recent changes to and ongoing limitations of the Freedom of Information Act…
A few weeks ago, President Obama signed into law a major amendment of the US Freedom of Information Act, or FOIA. Ironically for a measure intended to make government more transparent, the event garnered little publicity. What coverage did appear was buried beneath a mountain of headlines about Brexit, Boris, and Trump. Nevertheless, backers say the new legislation will be hard to ignore. According to one prominent cosponsor, Senator Patrick Leahy of Vermont, this latest FOIA reform “ensures that sunshine, not secrecy, is the default setting of our government.”
To see just how far that overstates the conceivable impact of the FOIA Improvement Act of 2016—indeed of any such disclosure mandate—it’s best to return to FOIA itself. How did “our nation’s premier transparency law” (again Senator Leahy) come to be, and what exactly does it require of government agencies? To answer those questions is to develop a more sober view of the recent amendments.
FOIA was enacted in the summer of 1966. For the better part of two decades following World War II, a coalition of newspaper editors, together with a few dedicated lawyers and legislators who took up their cause, had been pushing for better disclosure of documents held by the federal government. They dreamed of a general rule according to which “all records should be open except as otherwise provided by law.” What they eventually got, when a skeptical Lyndon Johnson signed FOIA fifty years ago this Fourth of July, was language apparently narrower in scope, but amounting to more or less the same thing. Here is the legislation’s punch line: “[E]very agency shall, upon request for identifiable records made in accordance with published rules … make such records promptly available to any person.” (A litany of exceptions follows.)
In plain English, FOIA instructed government bureaucrats to turn over documents when people ask for them. That was a big deal, even if the law contained no explicit presumption of openness (“all records should be open except…”). The prior standard under the Administrative Procedure Act [PDF] gave federal agencies wide latitude to shield their records from public view. It said that disclosure was owed only “to persons properly and directly concerned” with the requested documents—whatever that meant. Under FOIA, by contrast, “any person” can demand the release of any “identifiable records” held by a covered agency, without so much as citing her affiliation or occupation or purpose in making the request. What’s more, FOIA gives requesters the right to sue in federal court if they believe records have been wrongly withheld.
FOIA certainly warrants two cheers. It has been instrumental in exposing many problems of governance. It gives political and legal standing to people curious about agency conduct, for whatever public or private reasons. (The law’s undiscriminating approach has been both a blessing and a curse, serving not only the relatively disempowered but also entrenched corporate interests that have inundated some agencies with profit-seeking disclosure requests.) Wholly apart from its consequences, FOIA expresses an important principle of democratic politics: that the exercise of power should be publicly knowable.
Though we should give FOIA its due, it’s also crucial to recognize its limits. Too often this statute has been portrayed as a silver bullet. But it cannot possibly secure the “freedom of information” it promises, much less a government that is meaningfully “transparent.”
For one thing, FOIA governs only records—things written and stored—not information in general. That’s a crucial distinction. The law imposes no obligation on agencies to answer the questions we might pose; questions like, “How did you decide to write this new regulation?” or “Why haven’t you taken a stronger stance against [this or that industry practice]?” It requires only the release of existing documents that bear on such matters, and typically only upon request. Yet as anyone who’s worked within a large organization will understand, agencies don’t document every conversation that might shed light on their decision-making process, or on their relationships with regulated industries. For all sorts of reasons, some nefarious and some altogether mundane, much agency work is conducted informally, viva voce and out of view of the wider public.
Moreover, not all existing records are subject to disclosure. FOIA’s numerous exemptions frequently relieve agencies of the duty to honor document requests. The exemptions cover information that reasonable people would agree should enjoy confidentiality—personnel records, for example, or the details of active law enforcement investigations. In addition, they sanction the withholding of documents containing even a whiff of commercial data, which business interests have been remarkably successful in lobbying to protect.
More worryingly, FOIA’s exemptions sweep in many records that are directly relevant to assessments of agency competence and integrity—matters of core public concern. This includes a wide array of material that could shed light on the pathways of agency decision-making. Suppose we’d like to gauge the degree to which a given agency has cozied up to the industries it is responsible for regulating. Under FOIA’s Exemption 5—which effectively asserts the government’s deliberative process privilege—most conceivable evidence of such deference would be shielded as “pre-decisional.”
Finally, even where no exemption applies, compliance can be lacking. Huge backlogs, evidence of strategic avoidance, and chronic underfunding make clear that FOIA’s promise of openness sometimes goes unfulfilled. And while the law’s framers sought to protect against this outcome by providing for de novo judicial review, in practice courts have often deferred to agency claims of secrecy.
Which of these basic limitations was altered when the recent FOIA amendments took effect? The short answer is: almost none of them.
At first glance, the new legislation achieves what FOIA’s advocates sought those five-plus decades ago: it incorporates a presumption of openness, declaring that records may be withheld only when “the agency reasonably foresees that disclosure would harm an interest protected by an exemption” (or is otherwise “prohibited by law”). In practice, though, it’s hard to imagine this provision will make much difference. In the rare cases in which a requester actually litigates an agency’s decision to withhold, the presumption’s only likely effect will be to compel the government’s lawyers to describe some harm that might result from disclosure. That’s hardly an insurmountable hurdle.
This summer’s amendments do make three important changes. First, they impose a 25-year limit on what may be withheld under the deliberative process privilege. Second, the new law calls for affirmative disclosure (on a public website) of any document requested three or more times. Though compliance will undoubtedly remain a problem, there are reasons to believe this measure will reduce the burden of requests by corporations. Finally, the amendments call for the establishment of a consolidated online portal for submitting and tracking document requests under FOIA. In principle that sounds like an attractive proposal, but it remains an unfunded mandate: the legislation authorizes no new expenditures.
Even assuming the government could meet the demands of the FOIA Improvement Act without additional resources, the basic point remains. Post-amendment, FOIA still covers only existing records, still exempts a great deal that would build public understanding of administrative power, and still leaves effective control over agency information with officials themselves.
Does FOIA make transparency the “default setting” of the federal government? I do not see how anyone could maintain that claim with a straight face. The truth is that, valuable as they are, disclosure laws like FOIA leave the opacity of the administrative state largely intact. That’s not necessarily a bad thing. After all, some (time-limited) secrecy in government is essential. Agencies could never hope to enforce their regulations without it. Still, we should be clear-eyed about what laws like FOIA can and cannot accomplish.
Jonathan Bruno is a Climenko Fellow and Lecturer at Harvard Law School, and a doctoral candidate in political theory at Harvard University.
Suggested citation:Jonathan Bruno, JURIST – The Freedom of Information Act Was Just Amended. Here’s What Changed—And Didn’t., JURIST – August, 2016, https://www.jurist.org/forum/jonathan-bruno-foia-changes.php.
This article was prepared for publication by Dave Rodkey, an Assistant Editor for JURIST Commentary service. Please direct any questions or comments to him at commentary@jurist.org<hrheight=’1′>.
