The Freedom of Information Act needs to be modernized 

In the past few weeks, the explosive contents of an email sent by former chief medical adviser and COVID guru Anthony Fauci, discussing the possible origins of COVID-19, have come to light. That email was part of a Freedom of Information Act (FOIA) response from the Centers for Disease Control and Prevention (CDC). Like many of the documents in the response, the CDC had completely redacted the email. The redaction rendered the response virtually useless despite it clearly being in the public interest. Only the action of the House Oversite Select Subcommittee on the Coronavirus Pandemic brought the contents of the email to light. It leaves one to wonder, is FOIA living up to its intended purpose?

That purpose is a direct reflection of the three most important words in the U.S. Constitution: “We the people.” With these three words, our nation’s founders established the relationship between the people of the United States and their government. The government takes its orders and directions from the people, not the other way around. 

To exercise oversight and ultimately control over their government, the people must know what their government is doing. They must have access to what their officials are saying. This is why the Freedom of Information Act was created. When then-President Lyndon Johnson signed the first version of FOIA, he stated, “A democracy works best when the people have all the information that the security of the Nation permits.”

FOIA has done a lot of good, but, as the Fauci email shows, it has never fully lived up to its lofty ideal. Government agencies have always dragged their feet in responding to records requests. There have always been concerns that government agencies will, without merit, manipulate exemptions under the law to hide embarrassing information from the public.

FOIA has been amended numerous times to address, among other things: 

• delays in responding; 
• giving FOIA requesters the ability to go to court for noncompliance; 
• making FOIA requests agency priorities, including adding consequences for noncompliance;  
• preventing agencies from imposing abusive fees upon requestors; 
• narrowing the use of so-called “exemptions,” which allow agencies to withhold certain records and information;  
• addressing the rise of electronic documents; and 
• other efforts to improve efficiency.  

Some of these goals were addressed by Congress more than once. Despite these reforms, concerns persist.

By law, agencies are supposed to respond to FOIA requests within 20 days. Yet the average time for “simple” requests was nearly 41 days in 2022. More complex responses take even longer, with some responses dragging on for years. In one case, the Food and Drug Administration proposed to take 75 years to produce information!

The reforms listed above included consequences for agencies and for officials who act arbitrarily. But nearly from day one, these consequences effectively have been dead letters. Sanctions for unjustifiable responses to FOIA requests are virtually never applied.

Part of the problem is agency attitudes toward FOIA. Many agencies seem to view FOIA as, at best, a distraction and, at worst, an active hindrance. Just last year, Director of the Office of Government Information Services Alina Semo stated that “We need to recognize that federal agencies believe that their primary mission is not to collect, process, and respond to FOIA.” She further stated that “FOIA staffing typically comes last, sometimes as an afterthought …”

Similarly, the technology that government uses is not equipped for the type of “Google-like” searches the public has grown accustomed to. Instead, FOIA officers — who in many agencies are already somewhat detached from the day-to-day operations of the agency — rely on antiquated technology to blindly search for the relevant documents.  

In some ways, this state of affairs is understandable. After all, no one wants the Department of Defense to be unprepared to respond to an international crisis because it was too busy responding to a records request. But the net effect of deprioritizing FOIA and defanging accountability efforts is that agencies continue to routinely fail to properly respond.

It is time for bold thinking about how to make FOIA work better for the American people. The rise of the internet and electronic communications made it harder for agencies to keep up with large volumes of requests, but can also be part of the solution, making it easier for the public to presumptively access more materials. To the extent that the agencies themselves need to put in the work, they must be equipped to efficiently process FOIA requests. And there must be incentives and consequences to motivate the agencies to efficiently and completely respond.  

These problems are bipartisan. No matter the administration in charge, the people need to keep them accountable. Members on both sides of the political aisle should work to make FOIA live up to the original intention. In the end, it’s about “We the people.” 

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. He is formerly a constitutional and administrative law attorney. 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. He previously served in government as counselor to the secretary of the Interior, senior adviser to the Domestic Policy Council, and counsel to three commissioners on the Federal Election Commission.