An Information Commission

• Pages: 841-893
• Date: 01 April 2024
• Published date: 01 April 2024
• Author: Margaret B. Kwoka
• Subject Matter: Derecho Civil

An Information Commission

MARGARET B. KWOKA*

The right to access government information is a foundational element

of a democratic society, protected in the United States by the Freedom of

Information Act, or FOIA. But agencies cannot be left to administer their

transparency obligations unchecked; political motives and institutional

protectionism will inevitably sway agencies to overwithhold information

from the public. While FOIA delegates responsibility for oversight of

transparency obligations to the Judiciary, courts have failed to provide

meaningful recourse for violations, creating few incentives to fully com-

ply with the law. Democratic accountability suffers from this massive

and largely unchecked practice of excess government secrecy.

This Article calls for the creation of an independent administrative

agency, styled as an information commission, to enforce transparency

obligations. An independent information commission would be far supe-

rior to judicial review. A well-designed commission would increase the

availability of review of agency decisions to withhold information from

the public, the quality of that review, and the scope of enforcement activ-

ities needed to effectively tilt agencies toward open, transparent gover-

nance. Building on the literature on effective agency design, this Article

suggests ways the commission could be structured to safeguard its inde-

pendence and argues that such an institution is essential to protecting

democracy.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 842

I. THE IMPERATIVE TO OVERSEE INFORMATION OBLIGATIONS . . . . . . . . . . . . 845

A. CATEGORIES OF TRANSPARENCY OBLIGATIONS. . . . . . . . . . . . . . . . . . 845

B. PROTECTIONISM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 848

C. RESOURCE ALLOCATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 854

II. THE EXISTING DELEGATION TO THE COURTS . . . . . . . . . . . . . . . . . . . . . . . 858

A. THE CHOICE BETWEEN AGENCIES AND COURTS . . . . . . . . . . . . . . . . . 858

* Lawrence Herman Professor in Law, Ohio State University Moritz College of Law. © 2024,

Margaret B. Kwoka. Many thanks to Ruth Colker, Bridget Dooling, Michael Herz, RonNell Andersen

Jones, Christina Koningisor, Helen Norton, Blake Reid, and Derigan Silver for invaluable comments

and suggestions. For superb research assistance, I am indebted to Luke Klage.

841

B. FOIA’S DELEGATION TO COURTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 861

C. THE FAILURES OF JUDICIAL DELEGATION . . . . . . . . . . . . . . . . . . . . . . 864

III. THE CASE FOR AN INDEPENDENT AGENCY . . . . . . . . . . . . . . . . . . . . . . . . . 873

A. MORE ENFORCEMENT . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 875

B. BETTER ENFORCEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 878

C. MORE KINDS OF ENFORCEMENT . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . 882

IV. PRESERVING INDEPENDENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 885

A. CONSTITUTIONAL CONCERNS . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 885

B. PRACTICAL CONCERNS . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 891

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 893

INTRODUCTION

Secrecy pervades government. It hides things we want hidden, like troop

movements and conf‌idential informants, but it also hides a mountain of informa-

tion about which there is a clear public interest in disclosure and no legitimate

need for secrecy. It hides corruption; it hides inf‌luence over government decision-

making; it hides government policy. Secrecy is a pathology; natural and organiza-

tional incentives and bureaucratic structures promote it, even when it does us

harm, including harm to democratic accountability. And secrecy goes largely

unchecked.

Take, for example, Immigration and Customs Enforcement (ICE), which is re-

sponsible for apprehending individuals it believes have failed to comply with immi-

gration laws. ICE detains many of those individuals in facilities indistinguishable

from prisons.

1

See Hanna Johnson, The Questions You Probably THINK You Know the Answer to — but Likely

Don’t — About ICE Detention, ACLU (Nov. 30, 2020), https://www.aclu.org/news/immigrants-rights/

the-questions-you-probably-think-you-know-the-answer-to-but-likely-dont-about-ice-detention [https://

perma.cc/S286-HBSV].

But as a result of growing criticism of this vast civil-detention

practice, ICE monitors many others who await the outcome of their immigration

cases through alternatives to detention programs that use technological controls,

such as ankle monitors.

2

See AM. IMMIGR. COUNCIL, ALTERNATIVES TO IMMIGRATION DETENTION: AN OVERVIEW 1–3

(2023), https://www.americanimmigrationcouncil.org/research/alternatives-immigration-detention-

overview [https://perma.cc/9B8S-3WBY].

ICE regularly posts data on the number of people moni-

tored by these alternative approaches.

3

See Detention Management, U.S. IMMIGR. & CUSTOMS ENF’T, https://www.ice.gov/detain/

detention-management#stats [https://perma.cc/8QZQ-TXWW] (last visited Feb. 15, 2024).

When a nonprof‌it organization detected

1.

2.

3.

842 THE GEORGETOWN LAW JOURNAL [Vol. 112:841

data anomalies in 2022, and ICE itself conf‌irmed that some of its published data

was inaccurate,

4

ICE Lacks Transparency: Asserts No Records Exist to Substantiate Its ATD Custody Claims,

TRAC (Dec. 23, 2022), https://trac.syr.edu/whatsnew/email.221223.html [https://perma.cc/5656-

ZEJB].

the organization f‌iled a Freedom of Information Act (FOIA)

request seeking the anonymized individual-level data underlying those statistics.

5

ICE Posts Wrong Numbers on Alternatives to Detention (ATD) Monitoring, TRAC (Dec. 14,

2022), https://trac.syr.edu/whatsnew/email.221214.html [https://perma.cc/9UZT-3HAL]; TRAC, supra

note 4; see also Austin Kocher, ICE’s Data on Alternatives to Detention Raises Ongoing Quality

Concerns

þ

Recap of New Immigration Data, AUSTIN KOCHER (Jan. 5, 2023), https://austinkocher.

substack.com/p/ices-data-on-alternatives-to-detention [https://perma.cc/ED7N-5C82].

More than three months later, ICE responded that it had conducted a search for

such records and “no records responsive to [the] request were found.”

6

Letter from Brian Hearn, Supervisory Paralegal Specialist, Off. of Info. Governance & Priv., to Susan

Long, Transactional Recs. Access Clearinghouse (Dec. 22, 2022), https://trac.syr.edu/reports/f‌iles/2022-

ICFO-29132_response-no_records_found.pdf [https://perma.cc/4F2K-8UPN]; see also Kocher, supra note 5.

Put differ-

ently, ICE publicly reports aggregate data on how many individuals are in this

program but claims it has no records whatsoever listing the individual data under-

lying that aggregate statistic. How could ICE issue such an absurd response?

Why does it take three months for ICE to respond to a basic information request?

What can this nonprof‌it organization further do to obtain the underlying data?

Take another example. The top newsroom lawyer for the New York Times

recounted an episode when a reporter received a denial of a 2019 FOIA request

for records concerning the Trump Organization’s business relationship with the

federal government.

7

See David McCraw, How the Times Uses FOIA to Obtain Information the Public Has a Right to

Know, N.Y. TIMES (Sept. 4, 2019), https://www.nytimes.com/2019/09/02/reader-center/foia-freedom-

of-information-public-records.html.

Upon a closer inspection, however, buried in the seemingly

routine communication from the agency was a plain-typed, anonymous note of

an unusual variety.

8

It read: “The processing of the request was highly irregular.

The withholding was entirely unjustif‌ied ... The document was probably with-

held for political reasons.”

9

That is, a rogue FOIA off‌icer was so horrif‌ied by the

agency’s off‌icial response, they felt compelled to tip off the requester! How can

this happen? Why are political forces at work in determining whether records

must be released or are subject to a legitimate exemption from disclosure?

Secrecy starts with hundreds of thousands of individual decisions made by

government off‌icials to deny access to government records requested by a mem-

ber of the public under FOIA. The government denies these requests by over-

claiming exemptions to disclosure that are permitted under the law.

10

It denies

these requests by delaying—sometimes by years—responding at all.

11

It denies

these requests by refuting that any records exist, even when that plainly cannot be

4.

5.

6.

7.

8. See id.

9. Id. (omission in original).

10. See infra Section I.B.

11. See infra Section I.C.

2024] AN INFORMATION COMMISSION 843