The Increase in FOIA Lawsuits Isn’t the Problem — It’s Agencies Underfunding Their Transparency Obligations

Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives. … A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both.

James Madison, Aug. 4, 1822

Congress intended the Freedom of Information Act (FOIA) to be a tool to keep the public informed about the operations of the government, both to facilitate informed participation and to ensure that the public could hold the government accountable for its actions. From the time of our country’s founding to FOIA’s enactment in 1967 to today, an informed citizenry is the last bulwark against tyranny and is essential to the effective operation of any democratic system.

Sunshine Week celebrates the success FOIA has had in providing the public with insight into the operations of the federal government. But the ability of the law to serve this important function is facing increasing challenges as requests are met by long agency backlogs and delays in processing. FOIA cannot serve its intended functions if agencies are permitted to set a timetable that avoids access to agency records when they are salient to current public debates. Thus it is disappointing to hear the Department of Justice’s chief FOIA officer, acting Associate Attorney General Claire Murray, opening the department’s Sunshine Week festivities by complaining that requesters are “filing suit as soon as they can” when agencies fail to meet their legal obligations under FOIA. 

Transparency is the lifeblood of an informed citizenry. The history of FOIA’s enactment underscores the critical role it was meant to play. The very idea for the law arose in the 1950s and 1960s out of efforts by journalists to fight government censorship and secrecy amid the rise of totalitarian regimes abroad and the rise of McCarthyism and concerns about political repression at home. The law created a new — and, importantly, judicially enforceable — right for the public to obtain disclosure of information about government operations. When enacting FOIA, Congress expressly recognized that “an informed electorate is vital to the proper operation of democracy,” and President Lyndon Johnson’s signing statement on the Fourth of July echoed James Madison: “A democracy works best when the people have all the information that the security of the Nation permits.”

Unfortunately, many agencies across the executive branch have failed to meet their obligation to make timely determinations on FOIA requests. As a result, they have developed significant FOIA backlogs, and FOIA requesters face increasing delays in receiving the documents to which they are entitled. It is not unusual for FOIA requesters to be told that the search for records responsive to their FOIA will not even be initiated until more than a year after the request was submitted, and several agencies recently have been giving requesters estimated dates for the completion of their requests that are several years in the future. 

Long delays are a death knell for transparency. In practical terms, access delayed is often access denied. Access to records long after the underlying issue has lost public salience, or after the relevant political officials are no longer in office, can be, as courts have long recognized, “of little value.” One effect of these significant delays is a return to the secret law that FOIA was intended to abolish — agencies are implementing policies and practices that have significant impacts on private individuals while the public remains in the dark. Delayed disclosure undermines the interests of an informed citizenry and meaningful democratic participation.

With this in mind, Murray’s complaint is troubling. To begin with, the claim that requesters are suing faster is just wrong. Empirical analysis by the FOIA Project shows that, in cases when an agency hasn’t responded,  requesters in 2019 waited on average more than 30 days longer than they did in 2015 before  suing. The FOIA Project concluded that the number of FOIA suits has been rising because agencies haven’t been responding. 

By targeting her diagnosis on requesters who have the temerity to sue to hold agencies to their legal obligations, Murray misses the mark. The real problem undermining the transparency FOIA promises is decisions by agencies to woefully underfund FOIA processing. Some federal agencies do not treat their legal obligations under FOIA as important and primary responsibilities. Instead, they act as though FOIA creates burdensome and unnecessary work to be placed on the back burner. Agencies have growing backlogs of FOIA requests, but don’t allocate more resources to address that problem. Whether by accident or by intentional design, these backlogs undermine FOIA’s ability to inform citizens and thwart meaningful accountability for current officials. 

Murray’s own department, the Department of Justice (DOJ), illustrates this problem right now. A request for emails on a timely topic from a DOJ leadership office routinely sits for a year or more before DOJ even conducts a search, and then for months or years longer before production of responsive records is completed. Consequently, absent litigation, someone filing a request in early 2020 seeking records about the late 2019 actions under Attorney General William Barr may not receive a full response before 2022. That is not what FOIA’s drafters intended. 

Agency heads may have little incentive to address FOIA backlogs because delays and stale information can be politically beneficial. On Nov. 1, 2017, American Oversight requested calendars for then–acting Secretary of Homeland Security Elaine Duke. By the time DHS produced those calendars in April 2019, Duke was out of the agency, Kirstjen Nielsen had served more than 16 months as secretary and left the agency, and Kevin McAleenan was acting secretary. These sorts of delays in producing even simple and readily locatable records like calendars highlight the challenges for FOIA serving the purpose of holding officials accountable today.

So when Murray criticizes requesters for turning to the courts, she has the problem backward. Growing delays in agency response times are driving the increase in litigation, not vice versa. If litigation is the only way to get a timely response, requesters have little choice but to sue more. And if requesters were able to trust that agencies would respond on a reasonable timetable without litigation, they would have little incentive to sue.

The answer isn’t for agencies to complain about having to meet their legal obligations under FOIA. It’s for agencies to allocate the resources necessary to meet those obligations. Rather than trying to portray FOIA requests as a zero-sum competition between requesters, agencies should recognize that in a well-functioning democratic society, transparency about government operations is a primary programmatic responsibility of every agency, not a burden to be deprioritized.

Agencies have ample resources to do much better, but choose not to. In this respect, it is important to disabuse a common misconception. Agencies and even courts sometimes complain that if Congress wanted agencies to do better in responding to FOIA requests, it would appropriate more money.  But Congress does not typically fix which portion of an agency’s budget goes to FOIA processing as opposed to other agency responsibilities. Rather, those decisions are usually made by the agency head.

Unfortunately, it seems that agency heads across the federal government have not consistently considered it important to allocate sufficient resources to meeting FOIA obligations. This emphasis on the “primary” responsibilities of the agency over purportedly secondary roles like FOIA in funding decisions has undercut FOIA’s ability to perform its critical function. For instance, in fiscal year 2019, DOJ allocated about three-tenths of 1 percent of its overall budget to FOIA processing. If Murray were serious about addressing these issues, rather than complaining in a speech, she would be asking her boss to correct that manifest deficiency and get her department’s backlogs under control.

FOIA was enacted as a promise that the public could know what our government was doing and hold government officials accountable for their actions. As the Supreme Court explained, “The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.”

But the law can only play this critical role if federal agencies recognize the important civic role of meeting their FOIA obligations and provide adequate funding to do so — informed democratic participation and timely accountability depend on it.

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