Dave Philipps was well acquainted with the plight of troubled veterans when he heard about a soldier in the El Paso County jail two years ago. As a reporter at The (Colorado Springs) Gazette, Philipps had written extensively about veterans coping with life after combat. The soldier in the county jail was a special case, though. He was psychotic.
After tours in Iraq and Afghanistan, the soldier, Jerry Melton, was prone to violent outbursts and had pointed a loaded machine gun at fellow soldiers during an argument. After numerous misdiagnoses, drug treatments, and a stint in a secure psychiatric hospital where he showed signs of homicidal urges, the Army remanded him to the civilian jail to await court-martial for the gun incident.
At first, Philipps believed he’d simply found a new angle on the old story of soldiers suffering from post-traumatic stress disorder (PTSD) and traumatic brain injuries. “What counts as an injury?” Philipps says. “What counts as psychological? And how can you tell? I went into it thinking that was the story.”
But Philipps changed his mind after he returned to the jail to see Melton a second time. The soldier was gone. He’d voluntarily quit the military without facing charges. “It took a while to figure out that the Army had come to him and said, ‘We won’t court-martial you if you sign a paper,’” recalls Philipps, adding that Melton’s get-out-of-jail card came at a price. “Part of the deal is signing away your claims to veterans’ benefits.”
The episode got Philipps thinking. How many vets had quit the Army and lost their benefits in lieu of facing court-martial for fighting, alcohol abuse, insubordination, and other behaviors associated with PTSD and similar injuries? “We had a lot of people getting arrested for violent crimes in Colorado fresh back from Iraq,” he says.
A Freedom of Information Act (FOIA) request answered Philipps’ question.
Philipps submitted a FOIA to the Army requesting data on GIs given so-called Chapter 10 discharges for misconduct. Around six weeks later, he received a bunch of spreadsheets via e-mail. “As soon as I saw the data, it was very clear there was a sharp increase [in Chapter 10 discharges], an increase that was sharpest where there were the most combat troops,” he says. “Did it definitely say that troops that were burned out were getting kicked out the back door? No. All I had was correlation. That gave both me and the newspaper confidence to do something bigger.”
The result was the 2014 Pulitzer Prize-winning “Other than Honorable” series about the Army discharging traumatized and injured soldiers for misconduct. “This week, a Gazette investigation has shown that the number of soldiers discharged Army-wide for misconduct has increased every year since 2006 and is up more than 60 percent in that time, according to records obtained through the Freedom of Information Act,” Philipps wrote.
“Other than Honorable”—the military’s designation for Chapter 10 discharges—featured stellar gumshoe reporting. Philipps interviewed discharged veterans coping with psychological distress, addiction, and anger management. He found one Special Forces soldier who languished in solitary confinement for nine months while the Army debated whether to treat his PTSD and brain injuries sustained in a roadside bomb blast in Iraq or prosecute him for beating his wife and attacking prison guards.
But the linchpin of the series was the FOIA data. It showed Philipps that there were other soldiers like Melton. “All told, more than 76,000 soldiers have been kicked out of the Army since 2006,” Philipps wrote. “They end up in cities large and small across the country, in hospitals and homeless shelters, abandoned trailers and ratty apartments, working in gas fields and at the McDonald’s counter.”
After the series came out, Army rules were changed to ensure that mental health professionals sit on discharge boards. They now have a voice in determining whether a soldier should be given a medical discharge rather than an “other than honorable” designation that forecloses their access to the VA system. The Government Accountability Office is now investigating past misconduct discharges, too.
The Freedom of Information Act turns 50 this year. The law gives anyone the right to file a written request to obtain records from the federal government without explanation, as long as those records don’t fall under nine exceptions, like jeopardizing national security, that prohibit their release. It remains one of the most powerful and fundamental tools of American journalism.
Philipps now works at The New York Times. But when he was at The (Colorado Springs) Gazette writing “Other than Honorable,” he worked for a 70,000-circulation daily still recovering from its parent company’s bankruptcy a few years before. FOIA empowered him to call to account the biggest arm of the U.S. government. “FOIA, to me, is a fundamental, bedrock way that people who believe in democracy think about transparency and its role in government,” says John Wonderlich, policy director of the Sunlight Foundation. “You can be a felon in jail in India and submit a federal information request to the U.S. government. It’s not a right that’s restricted by who people are. That’s pretty extraordinary. It’s clearly played a fundamental role in giving people access to basic information about what their government is doing.”
FOIA and its analogous state records laws have made possible stories revealing the inner workings of government through politicians’ correspondence, policy memos, internal reports and other texts compiled without the input of press secretaries and other handlers. The laws are at the center of the 2016 presidential race, too. Democratic presidential candidate Hillary Clinton is under fire for rerouting her e-mails while Secretary of State through a private server, a move that many allege was designed to bypass FOIA. New Jersey Governor Chris Christie, a Republican presidential candidate, is still battling the media over requests for state documents related to allegations that his aides created gridlock on the George Washington Bridge in 2013.
But even as FOIA remains vital and relevant, cultural shifts in the past 50 years have exposed its shortcomings, sometimes in ironic ways.
Court decisions have interpreted the law in ways that tend to expand or protect privacy rights. Those interpretations have occurred as the government itself has electronically surveilled citizens without their knowledge or permission and individuals willingly share intimate details of their lives on Facebook and other social media. As the government struggles to keep up with archiving technology and the explosive growth in digital information, media start-ups and private groups are developing innovative FOIA requesting and cataloging technologies to make the process faster and more efficient. Human nature, however, remains the biggest wild card in FOIA requests. Bureaucrats need only cite an exemption to reject a FOIA application, which can lead to costly and lengthy court cases.
The perceived arbitrariness inherent in FOIA requests has led many journalists to charge that FOIA is broken. “I often wonder if we are better off without a law at all,” says University of Arizona journalism professor David Cuillier. “Public record statutes in a lot of ways give government officials the ability to legally delay releasing information, to deny information on often questionable reasoning. They will just pick an exemption—personnel, or it’s under investigation, or prejudicial discussions. The law allows those pegs to hang those denials on.” The Reporters Without Borders’ World Press Freedom Index ranks the U.S. as 49th in the world, below El Salvador and Niger. Among the group’s criteria, Cuillier notes, is the lack of a shield law for journalists, government seizures of reporters’ phone records, and excessive controls by federal public information officers.
“FOIA, to me, is a fundamental, bedrock way that people who believe in democracy think about transparency and its role in government”
It wasn’t supposed to be this way. Congressman John Moss, a California Democrat, first proposed legislation that would become FOIA in the 1950s, amid the secretive climate of Washington during the Cold War. In 1955, Moss became chairman of the Special Subcommittee on Government Information. He used that perch to shame and cajole other politicians into supporting FOIA. The committee—as well as the American Society of Newspaper Editors, educators, scientists, and others—conducted a public campaign for the bill. In 1966, as Democrats faced a tough midterm election over Vietnam and deteriorating race relations, President Lyndon B. Johnson reluctantly signed FOIA into law rather than allow Republicans to paint his party as against open government.
Congress has since amended FOIA every 10 years or so. In 1974, after the Watergate scandal, lawmakers set up mechanisms like requiring agencies to respond to requests in a timely manner—the limit is now 20 days—disciplinary procedures for wrongly withholding information as judged by administrative appeals or court rulings, and waiving fees for journalists and public interest groups. Other major changes include extending FOIA to electronic records like e-mail in 1996 and creating the Office of Government Information Services to serve as FOIA ombudsman in 2007.
Court decisions have also modified the law. Under FOIA, if the government denies a request for records, requesters have few options. They can sometimes appeal, depending on the agency. They can request mediation through the Office of Government Information Services. Or they can file a lawsuit charging that the government is unfairly withholding information. According to the Associated Press, officials in fiscal year 2014 admitted they were wrong to withhold documents in around one in three instances when requesters appealed, the highest reversal rate in at least five years. Litigation remains by far the most frequent option for requesters who feel they’ve been treated unfairly.
“The vast majority of requesters who don’t have the resources or the wherewithal to challenge agencies in court proceed at a real disadvantage,” says David Sobel, senior counsel at the Electronic Frontier Foundation. “It’s unfortunate that if you want the law to work in a reasonably effective way, you often need to have the ability to get a court to intervene.”
Court cases come in response to officials rejecting FOIA requests, and those decisions reflect how administration attitudes haven’t changed much since Moss’s time.
On his first full day in office in 2009, President Barack Obama issued a memorandum on FOIA with the goal of leading the most transparent administration in history. “In the face of doubt, openness prevails,” the memo read, ordering agencies to presume records were declassified unless there was a clear reason to exempt them from the law. Coming in the wake of President George W. Bush’s administration and the tight security atmosphere following the September 11th terror attacks, many journalists were hopeful that Obama would change how the federal government released records. That didn’t happen.
“The Obama administration even now continues to portray itself as responsible and transparent when it comes to government records requests,” says AP investigative team news editor Ted Bridis, who published an extensive analysis of FOIA statistics in March. “It has become inarguable over the last seven years that they are doing a lousy job. They had said all the right things, but when it comes into practice, when the rubber meets the road, it’s just a horrible situation.”
Of the record 714,000 FOIA requests filed with the federal government in the 2014 fiscal year—that includes journalists, citizens, and companies—officials responded to around 650,000 requests, a 4 percent decrease compared to the year before, Bridis wrote, citing government statistics. The government rejected requests or redacted documents in almost 251,000 cases, or 39 percent of the time, citing exemptions in a record 555,000 instances. In around 216,000 requests, officials determined the inquiry was inappropriate, they couldn’t find records, or requesters refused to pay copying fees and other costs.
Melanie Ann Pustay, director of the Justice Department’s Office of Information Policy, defends the government’s performance. “I’m always perplexed by those sorts of criticisms,” she says, adding that agencies have outright rejected only 9 percent of FOIA requests since she became director of the office in 2007—a figure that does not include denials based on requesters refusing to pay fees, inquiries that are still pending, and a host of other rejections and delays. “Certainly, yes, there are backlogs of FOIA requests at many agencies. Certainly the numbers of incoming requests have increased. But when you look at how agencies have responded to those realities, year after year agencies are able to improve the average number of days it takes to process requests, and they also have maintained a really high release rate.”
But requesters also brought more FOIA lawsuits against the federal government in fiscal year 2014 than anytime since at least 2001, according to Syracuse University’s Transactional Records Access Clearinghouse (TRAC). The clearinghouse found that a total of 422 FOIA lawsuits were filed in federal district court compared to 387 in fiscal 2005, the next highest year in the period researchers examined. Media organizations were a small part of those cases, too, a sign that journalists aren’t the only ones frustrated by the government’s handling of FOIA. Newspapers and other media outlets filed 22 FOIA lawsuits in the last four years of President George W. Bush’s administration and 18 in the first four years Obama has been in office.
Journalists and others who frequently challenge the government’s FOIA denials in court blame low-level bureaucrats, who are usually the first to receive FOIA applications. FOIA officers have little or no incentive to give the media or anyone else information that might anger their superiors, they argue. In his story about FOIA cases, for example, Bridis notes that the AP obtained e-mails from the National Archives and Records Administration about who pays for first lady Michelle Obama’s dresses. Officials had redacted text in one sentence but on a subsequent page had failed to censor the same sentence: “We live in constant fear of upsetting the WH,” a reference to the White House, suggesting the motivation for blacking out the sentence was related to anxiety about possible political blowback rather than protecting privacy under the law.
Susan Long, co-founder and co-director of TRAC, views government intransigency as more than just psychological, however. In 2013, TRAC requested reams of info from the Department of Homeland Security’s customs, immigration, and border units. Even though the department on previous occasions had classified TRAC as an educational or media organization that need only pay duplicating costs, not search and processing fees, for this request the department opted to consider TRAC a commercial entity. In defending the fees, the department argued that TRAC was seeking too much information, though officials didn’t cite an exemption and reject their request. TRAC sued and a judge sided with the group in June. The department has since refused to process the request, calling it “burdensome.”
John Tran, who litigates FOIA cases at the Electronic Privacy Information Center, sees an inverse relationship between how citizens and the government value information. The more people don’t care about privacy, he says, the more the government values it. “Because they know so much about what can be gleaned from information, they don’t want to give it out,” he says. “They say, ‘Everybody is oversharing these days. A lot of things are happening with that. We should take the opposite tack.’ It makes total sense that they would be much more careful in this age of sharing and disclosing information.”
Journalists and others have responded to the government’s stance by doubling down on FOIA: carpet-bombing agencies with requests, learning deeply about bureaucracies to fine-tune inquiries, and inventing novel approaches to FOIA to circumvent bureaucratic obstacles.Due to a reporting error, an earlier version of this article mischaracterized how Jason Leopold views himself
VICE News reporter Jason Leopold is among a wave of journalists who have made careers out of FOIA. (Disclosure: I freelance for VICE News.) With around 1,500 FOIA requests outstanding, he conducts much of his work solely through the law and its state counterparts, viewing himself as a crusader in the vein of I.F. Stone. “We’re in a time right now when people want to see what I call primary source material,” says Leopold. “Sometimes, a document will hold an entire story where you don’t need anything else.”
Using little more than documents obtained through public records requests, Leopold quoted a Department of Justice white paper that provided a legal justification for the CIA to kill an American abroad and uncovered how BP lobbied the U.S. government to keep its federal contracts after the 2010 Gulf of Mexico oil spill. He recently reported that, before a judge sent her to jail for five days for refusing to grant a marriage license to a homosexual couple, Rowan County Clerk Kim Davis in Kentucky sought to deny everyone—including same-sex couples—the right to marry. Davis’s goal, Leopold reported, was “to not only refuse licenses to same-sex couples, but to refuse them to ‘all parties, as to not discriminate anyone.’” And he debunked claims floated by the Baltimore Police Department that gangs had formed an alliance to shoot police officers in that city this past year.
Part of Leopold’s approach is filing FOIA requests as soon as the news happens. He requested state documents related to Davis, for example, as she grabbed headlines for her refusal to issue marriage licenses to same-sex couples. Amid breaking news, the media often presents a version of events skewed by deadline pressures, lack of information, and the government’s often tight control of the story, he says. FOIA helps him get into the heads of newsmakers as they make decisions. “I’m doing this aggressively as I have been doing because the sources that I deal with absolutely do not want to speak with me on the record or off the record about any issues I am talking about,” says Leopold. “They fear they will be investigated, they will be prosecuted, and they will be jailed. I have to look at ways that I can continue to do my job.”
Leopold also pays fees that other reporters would find outrageous, and he’s not shy about filing lawsuits. In 2014, VICE News paid more than $1,200, for example, for seven e-mails related to the civil unrest that erupted after a police officer shot and killed Michael Brown, an unarmed black teenager, in Ferguson, Missouri. City officials said the money would pay for a consultant to search for the correspondence. Other news organizations complained to the state’s attorney general about the fees, saying they violated Missouri’s Sunshine Law. But Vice News went ahead and paid it. Leopold viewed it as calling their bluff. The story that emerged painted a picture of a venal city government—officials complained to each other about the media making it tough for the cops, while the outside firm hired to search archives never found an e-mail containing Brown’s name in a two-month period after he died.
Fees are themselves a matter of controversy in FOIA. Nate Jones of the National Security Archive at George Washington University notes that FOIA cost the government $441 million in fiscal 2014. Fees in that period were of $4.2 million, covering less than 1 percent of that cost.
When a fee isn’t possible, Leopold doesn’t mind going to court. One of the most controversial aspects of FOIA when it was adopted 50 years ago was giving citizens the right to sue the government if they felt officials wrongly rejected their FOIA requests. Today, Leopold considers litigation a routine part of his reporting. He files a handful of cases annually. “It’s like I have two full-time jobs,” he says. “One is to be a reporter. One is to handle requests, file court papers and to understand the law.”
Among his highest profile litigation, Leopold, along with other news organizations and activist groups, filed lawsuits against the State Department to gain access to Clinton’s e-mails. Those cases resulted in a federal judge ordering the department to release Clinton’s e-mails on a rolling basis. More recently, in June a judge ordered the Department of Defense to give Leopold reports prepared by the Office of Net Assessment, the Pentagon’s in-house think tank which looks at possible future geopolitical scenarios. The decision came after officials rejected requests for an index of the reports, their title pages and summaries, and, finally, the reports themselves.
Reporters often must understand what occurs in government bureaucracies if they expect to obtain obscure correspondence that can lead to big stories. A few years ago, Craig Whitlock and other reporters at The Washington Post—as part of a Pulitzer-nominated series on secret American bases abroad—were trying to figure out where U.S. military drones were flying around the world. In the course of writing the series, Whitlock and his colleagues used aircraft accident investigation reports that the Air Force files when a vehicle is involved in a significant crash. Initially, they were less concerned about where the drones were crashing than about what those accidents said about where they were taking off and landing.
Later, however, Whitlock realized he had overlooked a key takeaway in the accident reports. “It kind of dawned on me—‘Gosh, these drones crash a lot,’” he says.
The accident reports were required under an Air Force regulation designed to keep taxpayers informed about the status of high-priced equipment in the field. There was well-established precedent for the Air Force to release them. So Whitlock started filing FOIA requests.
The topic was timely. Following intense corporate lobbying, Congress had recently allowed commercial drones to fly in American airspace. In the policy debates surrounding that move, drone opponents tended to focus on privacy and concerns about civil liberties. Nobody had looked deeply at whether drones were safe.
“More than 400 large U.S. military drones have crashed in major accidents around the world since 2001, a record of calamity that exposes the potential dangers of throwing open American skies to drone traffic, according to a year-long Washington Post investigation,” wrote Whitlock in the June 2014 story “When Drones Fall from the Sky.” “Since the outbreak of the wars in Afghanistan and Iraq, military drones have malfunctioned in myriad ways, plummeting from the sky because of mechanical breakdowns, human error, bad weather and other reasons, according to more than 50,000 pages of accident investigation reports and other records obtained by The Post under the Freedom of Information Act.”
If “When Drones Fall from the Sky” exemplifies the potential of FOIA, it illustrates the pitfalls, too. Even though Whitlock is a top defense reporter and the Pentagon was willing to divulge the accident reports, he faced a long, uphill battle to obtain them. Every branch of the military has aircraft. Each classifies them in different ways. Nobody has a central clearinghouse for them. Consequently, triangulation—searching multiple sources to pinpoint information—has become de rigueur among journalists seeking public records.
“You need to know the processes, the bureaucratic quirks of a place, where power flows. If you are not familiar with that, then you don’t know what documents to look for”
The (Bergen County, N.J.) Record
Shawn Boburg, who recently left The (Bergen County, N.J.) Record for a job at The Washington Post, knows well how government officials can play games when it comes to public records. As neither a state nor federal agency, the Port Authority of New York & New Jersey isn’t obligated to follow FOIA. New Jersey and New York’s open records laws didn’t apply to the authority, either, until this past summer, when officials in both states agreed they would. But Boburg had been covering the Port Authority long enough to know that its employees belonged to the New York State pension system. In 2011 he used New York’s Freedom of Information Law (FOIL) to uncover how authority executives were receiving big payouts that inflated their compensation far beyond the Port Authority’s publicly posted payroll.
Two years later, when the mayor of Fort Lee, New Jersey, accused Governor Chris Christie of closing lanes on the George Washington Bridge—one of the nation’s busiest spans—Boburg hit a wall again when he asked the authority for documents related to officials’ claims that the lanes were closed due to a traffic study. Knowing an indirect path was more likely to yield something, he used New Jersey’s Open Public Records Act (OPRA) to acquire correspondence between Fort Lee and authority officials. Their one-sided communications confirmed that something suspicious was happening. The mayor of Fort Lee was desperately writing to the governor’s office and other state officials, but they weren’t answering.
“That silence told a story. Here is someone really sounding an alarm. And there’s nothing,” says Boburg, who describes FOIA as a tool that can be devastating in the right hands. “You need to know the processes, the bureaucratic quirks of a place, where power flows. Documents usually follow those processes. If you are not familiar with it, then you don’t know what documents to look for. It goes back to beat reporting.”
Whitlock and Boburg concluded that the difficulty in obtaining public records for their exposés suggested that FOIA and other public record laws were, in a sense, broken. It shouldn’t be so hard, they say. Journalists shouldn’t have to cover an agency for years to learn how to obtain information that any citizen has the right to access. “People have no chance of getting anything if they are just curious about the way the government operates,” says Whitlock. “If you are just targeting it with these potshots asking for generic things, it just gets routed to the wrong place or the bureaucrat doesn’t want to help. They send it off to some file cabinet to die.”
Many agencies find it difficult to follow the law, in part because the volume of information is overwhelming outdated collection and cataloging methodologies. James Holzer, who was a senior FOIA officer at Homeland Security before he became director of the Office of Government Information Services, the federal government’s FOIA ombudsman’s job, in August, says he was horrified when he first came to the department, for the same reasons journalists are often frustrated with FOIA.
The Department of Homeland Security received almost 300,000 FOIA requests last year. Half of those were from people asking for their immigrant records for citizenship applications and other needs, he says. FOIA officers routinely redact information in those records that’s related to attorney-client privilege. “I walked into an office and was handed a Sharpie and some tape and told, ‘OK, get ready to redact,’” he says. “It was a ridiculous process.” Before him were piles of boxes and tens of thousands of pages of records. Officials would print out the records if they were electronic, box them up and ship them to his office, where he would scan them, upload them, print them out again, make redactions, and upload them again.
Slowly, the government is adopting 21st-century technology. The FBI, for example, is testing eFOIA, which allows users to request documents via a Web portal and then, if the request is accepted, view and download the documents.
But critics have slammed the program because requesters need to provide a scan of a government ID before submitting requests, “so the FBI is confident in the identity of the requester.” The program is in marked contrast to states like Florida, where the appeals court last year ruled that presenting an ID to obtain records wasn’t necessary because it would have a “chilling effect” on access under the state’s Public Records Act.
Officials could likely learn from journalists using technology to streamline FOIA and other public records laws. TRAC compiles decades’ worth of data ranging from Justice Department cases to wealth statistics based on income tax returns. Funded in part through subscriptions, the organization has waged long legal battles with government entities to collect information that it compiles into easy-to-read statistics.
TRAC’s databases, like those of the Center for Responsive Politics’ OpenSecrets, provide context for stories. But TRAC’s proprietary information is much deeper and more detailed. Currently, journalists can go to online databases like Pacer to find individual cases, but TRAC’s system categorizes cases in ways that journalists can use, like how many specific charges were brought in which district. The government offers no equivalent service. Reporters can see how many drug convictions a particular U.S. attorney might have won in a given year and whom he or she prosecuted, for example, versus how many white-collar crimes the same official pursued or declined to pursue.
Whereas Leopold’s impulse is to expose, TRAC co-founder and co-director David Burnham, a former New York Times reporter, views the clearinghouse and its mission in classic watchdog terms. “The point of FOIA is not to bring lawsuits. FOIA is to improve governance. It’s to get hard information. The real purpose is to get concrete documentation so you can get good governance,” Burnham says.
“We need to make access to information a constitutional right in this country”
University of Arizona
Launched in 2010, MuckRock helps requesters write and file requests—providing sample letters for requesters, contact info for public records officers at all levels of government and, most importantly, tracking the responses, the mounds of data, the rejection letters, and other correspondence that arise in FOIA requests, at prices that start at $20 for four requests. “It’s not so much the problem of filing,” says MuckRock editor J. Patrick Brown. “It’s a matter of keeping track of what happens after you file it. We try to keep front and center how we keep track of everything.”
The website has worked with The Marshall Project, The Boston Globe, and other news outlets as well as countless individuals who have filed FOIA requests through the site to accumulate nearly 700,000 pages of government data. All of those documents are posted for the public.
The State-by-State Approach to Getting National Data with FOIA
MuckRock also crowdfunds projects, raising $1,200, for example, to help No Boston 2024, a local activist group that helped sink the city’s Olympics bid. With the help of crowdfunding, the group used MuckRock to dig up documents that culminated with Boston Magazine reporter Kyle Clauss obtaining a copy of the Olympics bid book that showed billions in costs, including that of a 60,000-seat stadium, that organizers and public officials weren’t disclosing to the public, as well as the Olympics planners’ intention of seeking tax increment financing to cover some costs.
Clauss argues against reporters who insist that familiarity with a beat is essential to capitalizing on public records laws. “I didn’t have the sourcing that a lot of my colleagues and competitors did,” says Clauss, who moved to the magazine from The Lowell Sun, a small daily, a few months before the Olympics controversy. “I would not have been able to cozy up to folks or get sources that quickly. New developments were happening every day. I just wanted to get straight to the info. I knew there was so much spin going on, if we could just get some primary information, that would set some truth to it.”
Despite his success, Clauss, like most other journalists, was more cynical about open public records laws after his experience covering the Boston story. FOIA doesn’t apply to Congress. In Massachusetts, the legislature as well as the governor’s office claim to be exempt from state sunshine laws. A bill to improve the state’s law—including adopting the federal practice of forcing state and local governments to pay for requesters’ legal fees if a court finds that they unlawfully withheld info—is now pending in the legislature.
Few FOIA experts expect much to change soon. Sobel, the attorney, thinks special courts devoted to FOIA, like housing or probate courts, might expedite disputes. Holzer at the Office of Government Information Services recommends more technology, like online FOIA request applications. Department of Justice officials this summer announced the launch of a series of pilot programs called Release to One, Release to All, that would make public the result of almost any FOIA request. The idea is to disseminate information that’s public to a wide audience, but scoop-conscious journalists have panned the idea.
University of Arizona’s Cuillier recommends codifying in law the presumption of openness that Obama championed at the beginning of his tenure, giving the Office of Government Information Services more resources—currently it only has 10 staffers —and imposing time limits for agencies to cite exemptions. Those measures probably won’t overcome the bureaucratic culture that naturally veers to resisting disclosure, he admits. But it would make it easier for citizens who must resort to suing the government to challenge denials. “We need to make access to information a constitutional right in this country,” Cuillier says. “We need to make it a human right, like it is in Europe, like having clean water and not being tortured.”