Eliminate the Freedom of Information Act

Over the past decade, my extensive experience with the Freedom of Information Act (FOIA) has created a complex relationship with this vital law. While I’m passionate about the principle of public access to records, I can’t ignore the harsh realities of its implementation. FOIA is fundamentally broken; requests often languish for years, and agency officers misapply exemptions to withhold information. For instance, a request I submitted in July 2022 to gain access to a national database of police use-of-force incidents held by the FBI is estimated to take until November 2025 for fulfillment. Ironically, this frustrating timeline overlooks the pressing need for transparency and accountability in public records, a right supposedly guaranteed under FOIA.

One of the most prolific FOIA requesters, Bloomberg News reporter Jason Leopold, corroborates my grievances. At one point, he had nearly 4,800 pending requests and shared the exasperating experience of waiting years for records. He recently received documents from the General Services Administration that he initially requested in 2017, which emphasizes the archaic nature of this process. The challenge for journalists like Leopold is not only the timelines but also the age of the information requested, rendering many records nearly obsolete by the time they are released. This dysfunctionality demonstrates that the current FOIA framework fails to meet its intended purpose, a challenge exacerbated by a growing backlog that has surpassed 200,000 requests as of FY 2022.

The Government Accountability Office reports attribute this growing backlog to an increased volume of requests and complications in processing them, further aggravated by insufficient resources from presidential administrations for FOIA offices. Consequently, obtaining public records through FOIA often necessitates litigation, propelling requesters to the front of the line. While litigation can expedite some requests, it reinforces an unhealthy bias in favor of those with deeper pockets, effectively sidelining the average citizen. This trend has led to a significant rise in FOIA lawsuits in federal courts, indicating a systemic failure to comply with the spirit of transparency the law aims to promote.

Despite updates to the FOIA over the years, including a major revision in 2016, compliance seems to have worsened. The amendments, intended to fortify transparency by advocating a presumption of disclosure, ironically resulted in increased response times and more rigorous withholding of documents. Leopold notes that the situation has deteriorated, which counters the aim of making government more accessible. The burgeoning challenges presented by modern record-keeping and the intricate nature of requests demand a more robust approach than the current legislation presents.

Proactive disclosure emerges as a compelling alternative to the conventional FOIA framework. The concept involves agencies taking a more active role in releasing records without waiting for requests. This could be accomplished by establishing automated systems for redaction and routine document releases, ultimately encouraging a culture of transparency among federal employees. Although ensuring compliance could entail complex review processes, the potential savings in time and resources could significantly reduce the burden on FOIA officers and streamline responsiveness to public requests.

Critically, any overhaul of FOIA must address enforcement mechanisms. The current framework lacks adequate penalties for noncompliance, which allows agencies to disregard their obligations without consequence. Heightened penalties for federal employees found to be circumventing the law or destroying records could incentivize compliance and honesty in record-keeping. The foundational principle of FOIA—that government operations are essentially public business—necessitates a reform capable of adapting to contemporary technological capabilities while safeguarding citizen privacy. As we stand at a crossroads, it’s imperative to envision a new freedom of information law that invites openness in the digital age, moving beyond outdated practices reliant on analog systems.