If You Want The Government To Hand Over Documents, You Might Want To Retain A Lawyer

from the get-busy-suing-or-get-busy-waiting dept

Fifty years after the passage of the Freedom of Information Act, the letter of the law lives on but its spirit has been crushed. While it's definitely preferable to having no opportunity to demand government agencies hand over requested documents, it's not the significant improvement it was promised to be.

As was noted here four years ago, the government has pretty much adopted a presumption of opacity that necessitates the filing of lawsuits. This contradicts the law's intentions, as well as proclamations made by President Obama, who declared his administration the "most transparent." This assertion fell flat when government agencies engaged in FOIA business as usual and Obama did nothing to hold them accountable.

If you really want the government to turn over documents, you have two choices: lawyer up or add your pending FOIA requests to your will. That is the sad reality of the situation, as C.J. Ciaramella of Reason points out.

If you don't have the money to lawyer up, you'll have to content yourself with waiting months, and often years, for documents. The average time to receive a processed FOIA request from the State Department in fiscal year 2017 was 652 days, for example. The average time to receive a response to an administrative appeal was 503 days.

And that's just the stats for one agency. The FOIA Project has compiled the stats for this year's FOIA requests and found there are more requests being filed than ever before, leading to the inevitable outcome of more FOIA lawsuits being filed than ever before.

The annual rate of filed lawsuits has more than doubled under President Trump. So far this year, 860 lawsuits have been filed, compared to 402 filed in 2016. This presidency has triggered renewed interest in the FOIA process, resulting in waves of requests hitting agencies like the DOJ and DHS, as well as agencies (EPA, HHS) whose top officials have been caught behaving badly.

Rather than greet the demand with increased supply, government agencies have stayed the course they've held for the last 50 years. While there have been some welcome introductions like online filing portals and release-to-all policies for documents with significant public interest, the rate of incoming requests continues to exceed the capacity to fulfill them. But no money will be thrown to FOIA response teams. This is a part of the government that the government tends to feel can remain underserved forever.

If you want to know how bad it is, the FOIA Project has a set of data tools that allow you to sort the data to see who's screwing requesters most often, based on the number of times they've been taken to court. (Unsurprisingly, the FBI has been sued most often, including this recent filing from Buzzfeed's Jason Leopold over documents related to the agency's investigation of sexual assault complaints against Supreme Court Justice Brett Kavanaugh.)

If there's any bright side to this, it's that the apparent need to lawyer up when seeking documents is no longer (mostly) a corporate playground. Having unlimited access to in-house lawyers has turned the FOIA process into a research tool for corporations seeking an edge on competitors or simply fishing for info other companies might want to keep secret, but the government is more than happy to dispense to whoever asks.

In FY 2018, nonprofits comprised 56 percent of all FOIA lawsuits brought against the government. Nonprofits became increasingly active under the Obama Administration, but emerged as the majority of all FOIA lawsuit plaintiffs after President Trump took office. In FY 2016, nonprofit filers comprised just 36 percent of plaintiffs, whereas they comprised 50 percent or more in FY 2017 and FY 2018 (see previous report, “FOIA Suits Filed by Nonprofit/Advocacy Groups Have Doubled Under Trump”). Suits filed by reporters and news organizations also have been increasing.

The Freedom of Information Act is limping towards its sixth decade of existence, better than nothing, but nothing near what it was imagined it would become. Reform efforts continue to fail, largely due to government agency interference and pressure. Five decades of this has turned the FOIA process into a battle of wills that almost always takes place in a federal courtroom. Despite this, more FOIA requests are being filed than ever -- perhaps a testament to the indomitable American spirit… or an almost-masochistic unwillingness to take "no" for an answer.

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Filed Under: foia, freedom of information