Dispatches from the Creation Wars

Why FOIA Needs Reform

My former colleague Spencer Ackerman writes about a recent experience he had with a Freedom of Information Act request:

Imagine my joy when I received a manila envelope in the mail bearing “DEPARTMENT OF JUSTICE/OFFICE OF LEGAL COUNSEL” in the upper left. How I should have known better.

“This is in response to your Freedom of Information Act request dated January 26, 2009,” OLC Special Counsel Paul P. Colborn informed me. I forgot I filed a FOIA on January 26, 2009. Why? Because it’s May 25, 2011.

It gets worse:

Apparently I was so seized with hope and change and such in those bygone days that I wanted to read the OLC’s correspondence with the CIA about torture. Within my envelope was a memo, dated July 20, 2007 from acting OLC chief Steven Bradbury for John Rizzo, then the CIA general counsel: “Re: Application of the War Crimes Act, the Detainee Treatment Act, and Common Article 3 of the Geneva Conventions to Certain Techniques that May Be Used by the CIA in the Interrogation of High Value al Qaeda Detainees.”

A stunning new declassification? Hardly. It was part of the Obama Justice Department’s 2009 torture disclosures. The ACLU published the document long ago. Here’s a version of it in the Washington Post. More comically, here’s an analysis of it penned by my friend Daphne Eviatar, back when we were both working at the Washington Independent.

Spencer says he figures about 20 percent of the FOIA requests he’s filed in his 9 years reporting in DC have been fulfilled, none of them promptly and lots of them inaccurately. In my experience, that’s probably a better than average record.

Last week, one of my reporters, Todd Heywood, testified before a House committee here in Michigan about the need to reform our state’s FOIA law to prevent public agencies from stonewalling and protecting themselves from the release of information that they might find embarrassing. Here, a committee led by perhaps the most conservative member of the legislature is looking at reforming FOIA in this way.

In the real world, here’s how FOIA actually works. You send in a request for something that an agency doesn’t want released. They have all kinds of tactics to choose from in making the process as difficult as possible, including:

1. Economic stonewalling. They cite you a massive price for the request, knowing that most organizations can’t pay it and will just back off at that point. The FOIA laws allow agencies to waive the costs of fulfilling a FOIA request where the release of information is in the public interest — but since it’s the agency themselves that decides what is and isn’t in the public interest, you can imagine how often they waive those costs. You’ve got a better chance of being struck by lightning while cashing in the winning Powerball ticket.

2. Citing bogus exceptions. There are a list of numerous exceptions to the FOIA law, written vaguely enough that they have prompted literally thousands of lawsuits to help define what they mean. The agency knows that most who file a FOIA request can’t afford to go to court to fight over it, so they can almost always get away with this. In my FOIA battle with the Bush administration, I could not have taken them to court without Public Citizen contacting me and agreeing to represent me pro bono (because they wanted the same document I wanted).

3. Just plain not responding. Again, what’s the recourse for the person who filed the request? Taking them to court, which few filers can afford to do.

We need some serious reforms of the FOIA laws. First of all, they need to be expanded to include Congress and the state legislatures. Second, the exceptions have to be far more narrowly defined. Third, there needs to be some teeth in the law for playing games over releasing information. Start sanctioning the FOIA officers for agencies in some way and they’ll be forced to comply with the law.