The Freedom of Information Act (FOIA) controls the public’s access to federal records under the principle that the public has a right to those documents except when they are covered by the law’s exemptions. Federal agencies have a 20-day statutory deadline to respond to FOIA requests. However, it often takes years to receive the requested documents — a tactic from agencies to discourage requesters from seeking information. These delays in processing FOIA requests can also be traced to exponential increases in requests, insufficient technology, and lack of resources for FOIA processing.
In the last decade, the number of FOIA cases on the federal docket has more than doubled, and the public often has no other options beyond litigation to force the disclosure of federal records. The COVID-19 pandemic has further exposed the deficiencies of the Freedom of Information Act by revealing the government’s failure to provide the public with critical information in a timely manner. These shortcomings demonstrate the need for FOIA reform as the current system fails to fulfill the public’s right to access federal records.
In 2016, former President Barack Obama signed the FOIA Improvement Act, which primarily focused on changing exemption rules and issuing guidance on how records are requested and released. Although the Act was a large step forward in addressing problems with the FOIA process, inadequate processing continues, and delays have magnified since the Act was passed.
Threats to FOIA remain, as seen with the Supreme Court ruling on Food Marketing Institute v. Argus Leader. Decided in 2019, the case addressed the usage of exemptions and confidentiality after a lawsuit against the U.S. Department of Agriculture. The USDA denied access to the records of the amount of money individual retailers annually receive from taxpayers through the Supplemental Nutrition Assistance Program (SNAP) — formerly known as the Food Stamp Program — citing multiple exemptions under FOIA. The Court’s decision limited public access to government-related corporate information and overturned 40 years of precedent by broadening the definition of “confidential” under Exemption 4 of the Freedom of Information Act.
In response to the Argus Leader decision, Sens. Charles Grassley (R-IA), Patrick Leahy (D-VT), John Cornyn (R- TX), and Dianne Feinstein (D-CA) introduced S. 742, the Open and Responsive Government Act of 2021. The bill would essentially codify the previous standard established by the United States Court of Appeals for the District of Columbia in the 1974 case of National Parks & Conservation Association v. Morton, which established that information may only be withheld from the public as “confidential” under Exemption 4 if its disclosure would cause “substantial competitive harm” to the person or entity that provided that information to the government. The News Media for Open Government supports S. 742.
The coalition is also advocating for other FOIA reforms that minimize delays and improve efficiency, prevent over-redaction and improper withholding of information, and protect and strengthen transparency. For example, the group is seeking reforms that would grant FOIA officers direct access to all agency electronic records. FOIA officers currently do not have access to all electronic records and often must request access from other offices within an agency, so implementing this reform would shorten delays by eliminating the extra step.
The coalition also advocates for commonly requested records such as visitor logs and calendars for agency heads to be proactively disclosed to reserve FOIA capacity for specialized requests. Furthermore, NMOG supports limiting the use of exemptions such as the commonly cited “deliberative privilege” under Exemption 5. The exemption allows documents involving the deliberation of a policy to not be disclosed, which agencies often use to justify not releasing a document.
NMOG believes Congress should enact these and other FOIA reforms to maximize public access to government information, which — at the end of the day — belongs to taxpayers.
NMOG Remembers Rep. Elijah Cummings for Steadfast Work for Open Government