For citizens to avoid the Faucian bargain, FOIA reform is needed 

Just before Memorial Day, a bombshell report was published that implicated Dr. Anthony Fauci and Dr. David Morens, one of his senior advisors, for using private emails and phones to avoid public oversight and scrutiny of official activities. Morens even discussed how he would delete messages in order to avoid the discovery of emails.  

There may be no better time than now to talk about reforming how the government collects and provides records. As stated by the United States Supreme Court, the Freedom of Information Act (FOIA) was created with a very simple stated purpose: “to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” It is “a means for citizens to know what their government is up to.” 

FOIA accomplishes this by making an “agency record” subject to FOIA. A citizen can request records and, so long as the agency maintains that record, the agency will produce it, subject to certain exceptions like privilege or specified deliberative processes.  

To ensure that the citizenry can access information about what their government is up to, federal agencies have rules that require them to retain federal records, including emails. Government employees who use government email accounts will have their emails saved and backed up, even if they are deleted. This is essential for federal records laws to function as intended. 

FOIA’s purpose is made much harder to accomplish when government officials use private emails that are not on government servers. For agencies to search records, they need to have access to them. 

Courts have stated that emails on private servers are subject to FOIA. The idea is that “if the agency head controls what would otherwise been an agency record, then it is still an agency record and still must be searched or produced.”

But this still requires the agency official to be forthcoming and let the agency and/or the public know that he or she is using a private email. But what happens when an official wants to be covert?   

This is exactly what Morens reportedly did. This does not appear to be a case of misunderstanding. Morens stated that he “learned…how to make emails disappear.” He stated, “my Gmail is now safe from FOIA.” Clearly, Morens had no intention of honoring the spirit of the law. He did not want accountability from the public. FOIA, as written, requires honest public officials. But in an age when many officials are dishonest, reform is needed.  

The need for reform is not new. A whole host of other problems also exist with FOIA. Even for records that are held by the agencies, the response time by agencies is often slow. The average time for simple FOIA requests is 41 days, despite the law stating that they should be produced in 20 days. Additionally, what is provided is often heavily redacted. 

Federal agencies also have a tendency to view FOIA as a nuisance, whether it be something time consuming or because it subjects their communications to public scrutiny. As a result, agencies often do not prioritize FOIA or adequately hire staff to process requests, treating it as an afterthought.  

Additionally, technology has far surpassed what was understood at the time FOIA was last changed. They are not equipped for Google-like searches. Rather, citizens are forced to possess specific information that only the most sophisticated requesters would tend to know or readily be able to provide to agency FOIA officers. This has been made even more difficult due to the reality that FOIA officers are not involved in the agency’s day-to-day operations and often do not know where to look for responsive documents.  

When citizens are increasingly suspicious of their government, transparency is as important as any time in history. It is imperative that government officials operate under the transparent light of FOIA. And, agencies and agency officials need to have their feet held to the fire to ensure that they are motivated to comply with FOIA. Structural reform is needed to restore the public’s trust in government.  

Curtis Schube is the executive director for Council to Modernize Governance, a think tank committed to making the administration of government more efficient, representative and restrained. Gary Lawkowski is a lawyer with the Dhillon Law Group, where he advises and represents clients on legal issues including matters concerning the Freedom of Information Act.