Can the Freedom of Information Act Be Fixed?


President Obama signs into law a much-needed update. But will it change anything?

In 1993, Monte Finkelstein filed what would become one of the longest-running requests for government records in history. Eager to complete his book on the relationship between the Allies and the Sicilian mafia during World War II, the community-college professor submitted a Freedom of Information Act request with the National Archives.

Five years later and still waiting for a response, Finkelstein published his book without the documents.

“To be honest, I gave up,” he said. “I just surrendered. From my point of view, it was a bureaucratic nightmare.”

On Thursday—a few days before July 4, the Freedom of Information Act’s 50th birthday—President Barack Obama signed one of the most hard-fought FOIA-reform bills in decades. In doing so, he’ll make permanent the presumption that all government records are public unless proven otherwise, a central tenet of his administration’s efforts, and one currently vulnerable to revocation by, say, President Trump.

This alone is cause for high-fives among open-government groups, who convinced many states to enshrine that common-sense provision in their laws. Until now, the United States Congress never has.

At first glance, the bill doesn’t necessarily do much for people like Finkelstein. There’s nothing to speed up the turnaround for a request, which can stretch into weeks for routine records. It doesn’t force the government to pay the legal fees of a requestor if a judge takes the requestor’s side in court.

And crucially, it does little to challenge security and intelligence agencies, which try to avoid disclosing documents almost by default, sometimes before they’ve even looked for the requested files. This bill took almost a decade to get to the president’s desk, dying a dozen deaths along the way. A cynic could be forgiven for flipping through the text and wondering, is this it?

But while it’s not revolutionary, the bill lays a foundation for how open government should operate in America, experts say. And it is the necessary predecessor, its authors argue, to something far greater.

“One could say, looking at the glass, that it is half empty,” said Rep. Darrell Issa, who sponsored the House version of the bill. “But government has to move in a direction and be judged based on that direction. Congress passing FOIA [reform] moved us in the correct direction.”

Before Congress passed the Freedom of Information Act in 1966, federal agencies were veiled in secrecy. Information was nearly impossible to get. Although frustration mounted in Congress, the Eisenhower and Kennedy administrations successfully scuttled any attempt at reform for fear of what exposure would mean.

Lyndon B. Johnson, although similarly opposed to this kind of legislation, was less fortunate than his predecessors. On July 4, 1966, he signed the bill into law after both chambers of Congress passed it overwhelmingly. However, he diluted his endorsement, laying out a number of exceptions to the rule in his signing statement. Notably, there was no ceremony to speak of in 1966—only a tersely worded statement.

FOIA has gone through periodic updates since. Congress passed reform legislation in the wake of the Watergate scandal, imposing sanctions for wrongly withholding documents, specifying timetables for responses, and approving fee waivers for journalists. Since, requests have skyrocketed, but so have wait times. On his first day in office, Obama sought to reverse this trend with a series of orders, but delays and backlogs continued.

That included Finkelstein’s request, which was still in limbo in 2012, putting the professor in the unenviable position of possessing one of the longest outstanding filings in the history of the act. But he would not relent, even though he had published his book nearly two decades earlier.

“There was no way I was going to cancel the request,” Finkelstein said. “I just wanted to see those documents. I was like a dog with a bone with this thing. There was always this little hope in my mind that I would get these documents and it would all fall into place.”

Then, this year’s reform bill, the FOIA Improvement Act of 2016, got passed. Beyond its centerpiece provision, which opens documents to the public by default, the bill also requires the government to turn over documents shielded by several broad exemptions after 25 years, weakening a clause that keeps internal deliberations from public view. And if an agency receives multiple requests for the same record, it must post the record online.

“That’s all a win,” said Alexander Howard, a senior analyst at the Sunlight Foundation, an open-government group. “It’s not the revolutionary reform that I think some people would like to see. But it’s codifying a lot of the evolutionary improvements the administration has suggested so those existing wins are baked in and won’t be flipped back on January 21, 2017” when the next president takes office.

Others are less optimistic. The bill’s lofty language must be matched with a willingness to punish agencies if they don’t comply, said Jeff Richelson, an author who has filed thousands of FOIA requests over the past 30 years.

“They need to get representatives from the agencies there and grill them, and say, ‘How much would you like your budget cut? You’ll be sitting on orange crates instead of chairs,’” he said. “You’re not going to get a response through vaguely worded regulations.”

Why is reforming FOIA reform such a slog? For one, few Americans ever use it. While open-records requests often lead to substantive, investigative reports, few people have filled out one themselves and may have little familiarity with their importance.

And the Justice Department, which is charged with enforcing FOIA law, has actively campaigned against changing it. Documents—obtained via FOIA, ironically—show that DOJ lawyers distributed talking points against a version of Issa’s reform bill in 2014, arguing it needlessly added cost and complexity. Other documents given to the reporter Jason Leopold of Vice News showed evidence of similar efforts by the Securities and Exchange Commission and the Federal Trade Commission. From DOJ’s memo in 2014:

The Administration views [the bill] as an attempt to impose on the Executive Branch multiple administrative requirements concerning its internal management of FOIA administration, which are not appropriate for legislative intervention and would substantially increase costs and cause delays in FOIA processing. In this respect in particular, this bill is vastly different from past amendments to the FOIA, which addressed substantive issues connected with access to government records.

As a result, the Administration believes that the changes proposed in [the bill] are not necessary and, in many respects, will undermine the successes achieved to date by diverting scarce processing resources.

“There’s nothing to back it up,” Leopold said. “It just meant these agencies would have to be more transparent. And they don’t want to be more transparent.”

DOJ, for its part, says it now fully supports the legislation.

“We remain dedicated to improving transparency and open government,” said spokeswoman Beverly Lumpkin. As for the memo, “it is not uncommon for subject matter experts to provide feedback on technical aspects of proposed legislation and its potential unintended consequences,” she said.

With all this in mind, Leopold believes it’ll be years—maybe decades—before Congress passes another FOIA bill after this year’s act. Issa is a bit more optimistic, with plans to begin working immediately on the next iteration. But given the slow pace of change, America might have to make do with this version of reform for quite a while.

Under the new law, journalists and advocates will have a stronger ally in the FOIA ombudsman’s office, a watchdog not housed in the Justice Department. The government will automatically have to post frequently requested documents, meaning new data feeds will be available online and investigative materials could be accessible to a much wider audience than just journalists. A new central website, designed to handle records requests, could make it easier for regular people to join in.

At the same time, the Defense Department and other security agencies will continue to enjoy strong protections, meaning news organizations will continue relying on leaks to break news and uncover scandal. And the expense of pursuing a FOIA claim in court, with no hope of reimbursement, may continue to force many requestors to drop cases they could have won.

Finkelstein’s story has a happy ending. In September 2012, he received a large package in the mail from the National Archives. Hundreds of pages of declassified documents were enclosed, although they didn’t reveal much new.

“When you are dealing with these subjects, you need to get the truth, and the only way to get the whole truth is to get all the documentation if it exists,” Finkelstein said. “As a historian, as a scholar, you can’t be dissuaded by this. Roadblocks will be put in front of you, and you can’t let that stop you.”

Despite the wait, Finkelstein plans to file another FOIA request for his next book in this new, much friendlier system. He can submit his request through a central website; he can complain to an ombudsman if he doesn't get what he wants.

But reform requires more than a change in government procedure—it will also require agencies to have a change in heart. This bill doesn’t free up money, and it doesn’t authorize new hires. It can only set an example for how transparency should look in America. It’s up to the rest of the government to follow along.