FOIA is the acronym for the Freedom of Information Act (FOIA), or it was when it became law in 1966. Since then, it’s come to stand for Feds Obfuscating, Impeding and Abusing. One of the first “open government” laws in the world often just highlights federal agencies shirking transparency and continuing dysfunction.
FOIA was initially conceived by U.S. Representative John E. Moss in the 1950s. It requires U.S. government agencies to disclose full or partial documents upon request, with nine exemptions to protect several types of records from disclosure. Congressman Moss was a champion of transparent and functional government. He would assuredly be dismayed that federal agencies don’t follow the spirit of the law even as they claim to follow the letter of it.
As a group that focuses on government dysfunction and seeks greater transparency, FOIA hits all the wrong notes for FGI. In our relatively short history, we’ve seen federal agencies delay releasing records, sometimes providing laughable or even outrageous responses in the process. FOIA requesters can sue, but even after going to court, many agencies find ways to continue obscuring. Here are just a few examples.
A senior IRS bureaucrat who today has responsibility implementing the agency’s expanded enforcement efforts was intricately involved in the IRS targeting scandal that surfaced a decade ago. FGI requested records with a number of search terms reflecting current and past IRS controversies. Even with a list of defined search terms, the IRS claimed it could not comply with the FOIA request. It said it could only search for “subjects,” with further clarification that “subjects” referred to “subject lines” of emails and that the body of messages could not be searched. But text messages and some other types of records don’t have subject lines. Can requesters only expect documents if they can guess the magic subject lines?
To another FOIA request about President Biden’s plan to spend billions to hire 87,000 new agents, the IRS initially claimed that there were no records at all. The agency in charge of collecting taxes has no records about proposals to expand its power? After an unsuccessful administrative appeal, FGI filed a lawsuit. Now in court, the IRS has demanded more time so it can sort through what it now claims are thousands of potentially responsive records with tens of thousands of potentially responsive pages. Funny – and frustrating – how that works.
The State Department routinely gives extremely long completion dates on FOIAs. FGI requested leave data for department employees, which other agencies had provided in weeks or months. State said it would not be completed until October 2024, over two and a half years after the request! In April 2022, FGI requested information regarding State’s implementation of the COVID vaccine mandates. The department doesn’t plan to provide anything until April 2025. That’s neither transparent nor functional government.
Even when agencies produce records, they often overuse and misuse redactions. They’re supposed to segregate information and target redactions to the smallest portion feasible to apply exemptions. Instead, many seem to redact nearly everything and then hope requesters do not have the patience or resources to challenge the redactions. The Consumer Financial Protection Bureau and the Federal Deposit Insurance Corporation have sent FGI large sets of documents almost completely redacted.
Other federal agencies ask for the specific names of staff we believe might have relevant records, but then when they provide records they redact nearly all the names of federal officials, creating mystery when none need exist and making the process nearly impossible for unsophisticated requesters. Meanwhile, federal agencies often inflate records to appear to be providing more information, like when the U.S. Geologic Survey returned a 2,600-page production that included 2,100 pages of a spending bill enacted by Congress in 2020.
We could go on and on. Admittedly, some agencies likely have legitimate challenges with short staffing and backlogs of requests. The agencies should propose changes that honestly reflect the workload and what is needed to address it and Congress should act. But backlogs cannot account for the problem. Agencies’ efforts to deflect and delay are evidence of systemic issues and policies designed to reduce transparency.
FOIA is supposed to foster transparency and to allow Americans insight to how the federal government works. Sadly, it’s become another four-letter word for most requesters.
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