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Knowledge is power!
Late last month, we had our first-ever court-ordered FOIA win. We came out on top in a five-year-long lawsuit against the Department of Homeland Security (DHS) for access to certain Office for Civil Rights and Civil Liberties detention complaint records. The Department of Homeland Security had tried to conceal experts’ reports by citing FOIA Exemption 5 — an exemption that, as I’ll explain later, is often abused by agencies to avoid releasing information to the public for no good reason at all.
It took us five years and a lot of effort (and attorney fees) to fight this flimsy exemption in court. FOIA is supposed to make the government more accessible to the people. But our recent win shows that FOIA’s got a long way to go before it reaches that goal.
In this edition:
- Sunshine on a cloudy day
- …until it’s time to pay
- A triple whammy of obstacles
- It doesn’t have to be like this
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So, what’s keeping FOIA from reaching its full potential? I talked to POGO’s General Counsel (and resident FOIA expert), Scott Amey, to learn more about the Freedom of Information Act and just how valuable it is to our work.
But first, some context.
The Freedom of Information Act, passed in 1966 in the middle of the Cold War, gives anyone “the right to request access to information and records from any federal agency.” Requests go through agencies’ respective FOIA officers, who Scott considers “the librarians of the government.”
POGO used FOIA to uncover hidden truths about the F-35 program from the Pentagon and human rights abuses of immigrant detainees from the Department of Homeland Security. It’s a vital tool for transparency.
Not only does FOIA give us a window into the government, it also provides whistleblowers a workaround to potentially avoid government retaliation. “I once had a source inside an agency who told me about their office not releasing information to POGO,” Scott told me. “I was able to stay one step ahead by requesting the specific information the officials attempted to conceal, which they couldn’t ignore, and using FOIA protected my source.”
On paper, FOIA makes it so we can hold the government accountable for what it’s doing behind closed doors. But in practice, it’s difficult to rely on. There are several roadblocks to using FOIA that make it far less useful than it should be.
No such thing as a free lunch
Turns out, there is a price for information. FOIA requests can be extremely expensive. While there’s no initial fee to make a FOIA request, agencies are allowed to demand payment from certain requesters for the costs of finding, processing, and providing the information. There are fee waivers, which we’re often granted as a public interest group. “But they can charge you for duplication fees and search time fees, which can rack up into a lot of money,” Scott explained. “If our fee waiver was denied, we’ve received estimates for tens of thousands of dollars.”
High cost estimates are a great way to scare off the public. But for those who can pay, agencies still have avenues to block the release of information — nine, to be exact.
Get out of jail free!
Baked into the FOIA law are nine exemptions that allow government agencies to withhold records or redact information. The exemptions protect things like classified information and trade secrets. But there’s one deliberately vague exemption that’s been called the “most abused,” “withhold-it-because-you-want-to” exemption: Exemption 5.
“Exemption 5 protects anything that wouldn’t be released under litigation — anything that is considered pre-decisional or deliberative. So, anything that could change,” Scott explained. That is vague, of course. “It becomes a catch-all, of sorts.” Agencies stretch the exemption to bury information that’s embarrassing, damning, or could show them in a bad light. My colleagues describe it as a “get out of jail free card” in a great explainer of Exemption 5 that we released a couple years ago.
“Are you still interested?”
Federal agencies’ last-ditch effort against the FOIA requester is simply waiting out the clock. “It used to be fees, then it was the exemptions. Now it’s just time,” Scott told me.
Not only is there a massive backlog of FOIA requests, there’s incompetencies in the system that allow for foot-dragging — something I’m calling weaponized wonkiness. Unless there are “unusual circumstances,” federal agencies are required by law to respond to FOIA requests within 20 days. “But agencies generally use those 20 days only to reply to you and tell you whether they’re going to respond or not,” Scott explained. FOIA officers within the agencies will do the work of liaising with program staff to get the requested information. Because the information requested through FOIA can often be revealing (and not cast the agency in a good light), program staff then drag their feet on processing requests.
There are also delays in delivering the records. Scott told me about a comically frustrating FOIA negotiation that we’re currently involved in, in which DHS OIG proposed to release 260,659 records to POGO at the rate of 500 pages per month for 521 months. “And I was like, ‘Wait a second, that’s 43 years!’” Scott said.
A snippet from the supplemental status report we filed to try and speed up the document transfer process.
Another method of delay is through “Are you still interested?” letters. Say you submit a FOIA request and you don’t hear anything for five years. The agency can then send you a letter asking if you’re still interested, giving you only a two-week window to respond. If you don’t, they’ll permanently close the request, and your five years of waiting amount to nothing. “They drag their feet and hope that they can’t reach you, or can’t find you, that you’ve changed your email or moved. Sometimes it seems like they’re wishing you’ve died off so they can get away with closing it out,” Scott joked.
In summary, Scott said, “FOIA’s not built for speed.”
The Freedom of Information Act is an invaluable tool for the people to keep checks on the government, representative of the radical principles of democracy that our country was founded on. But good principles, like good intentions, only go so far. FOIA’s got a long way to go before it’s functional to its full potential, and we don’t have to settle for the wonkiness we’re working with right now.
There are a number of ways to approach fixing FOIA: From making FOIA administration a line item in agency budgets so there’s more staff and money to keep up with the ever-growing number of requests, to expanding proactive disclosures of commonly requested records so there’s less backlog, and reforming Exemption 5 to account for whether public interest outweighs the need for government secrecy.
Information is power. Fixing FOIA would make it the powerful tool it was always meant to be.