First-Person FOIA.

Author:Kwoka, Margaret B.
 
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ARTICLE CONTENTS INTRODUCTION 2207 I. COMPETING TRANSPARENCY COALS 2211 A. FOIA and Democracy 2211 B. Protecting Privacy 2215 C. The Process of First-Person Requesting 2217 II. FIRST-PERSON USE OF FOIA 2220 A. Department of Homeland Security 2224 B. Department of Veterans Affairs 2230 C. Social Security Administration 2234 D. Equal Employment Opportunity Commission 2237 E. Other Agencies 2240 III. THE FOIA MISMATCH 2243 A. FOIA Is Not Due Process 2244 B. Duplicative Work for Agencies 2249 C. Flooding FOIA 2253 IV. EXPAND ACCESS, SHRINK FOIA 2255 A. Administrative Discovery 2256 B. Eliminate Request-and-Return 2261 C. Online Access 2262 D. Not Everything Is FOIA 2265 CONCLUSION 2268 INTRODUCTION

Sometimes the Freedom of Information Act (FOIA) makes all the difference, just not in the way one might expect. Take WM, an immigrant trying to avoid deportation by proving that he had the government's permission to live and work in the United States:

WM is an El Salvadoran national who was in removal proceedings in California. His attorney submitted a FOIA request because he needed to show that WM had timely registered for Temporary Protected Status [a type of immigration benefit] under 8 U.S.C. $S 1254a and also to obtain information concerning WM's prior voluntary departure in 1990. WM needed this evidence to prove that he was entitled to an asylum hearing in immigration court and to prevent his erroneous deportation. Counsel for WM filed a FOIA request with USCIS [United States Citizenship and Immigration Services] on April 22, 2014. While awaiting the results of the FOIA request, WM's counsel sought relief from imminent deportation in U.S. District Court for the Eastern District of Virginia. This petition for relief was denied for lack of jurisdiction. Counsel sought a stay of removal from the Fourth Circuit Court of Appeals. The Fourth Circuit initially issued a stay of deportation but thereafter terminated the stay of deportation for lack of jurisdiction after receipt of a motion from the Department of Homeland Security [(DHS)]. Counsel sought to reopen WM's case with the immigration court and to obtain a stay of removal. The immigration court denied the motion to reopen but granted the motion for a stay of removal. Unfortunately for WM, the court did not grant the motion until about a week after DHS had deported him back to El Salvador. USCIS produced the FOIA results on June 21, 2014. The FOIA response showed that the USCIS erroneously terminated WM's grant of Temporary Protected Status. Had WM had access to this prior to his deportation from the United States, counsel asserts that he would have been able to avoid deportation and reopen his removal proceedings based on an error of law. (1) This story may seem strange for a variety of reasons. Does the government not have to turn over evidence that would be favorable to WM's case? Can WM not at least seek such evidence through discovery? Does WM not have any other way of accessing records about himself? And why FOIA? Is FOIA not meant to enable journalists and watchdog groups to uncover controversial, secret government actions and hold elected leaders accountable? How does WM's FOIA request advance those goals ?

The answers to these questions are surprising. In immigration proceedings and many other administrative contexts, individuals have no mechanism besides FOIA for obtaining their own records, be they immigration files, law enforcement records, medical history, family events, financial affairs, or investigatory materials about their own complaints. FOIA serves as a stopgap measure for these individuals. These requests may be made by the individual or their representative, such as their lawyer. They may, as with WM, substitute for discovery. They may also aid in accessing government benefits or be a necessary step in securing services on the private market. I call these first-person FOIA requests.

These requests are frequently vital to the requester's interests and promote the fairness and accuracy of agency processes. They do not, however, advance Congress's primary goal in enacting FOIA: to promote public democratic oversight of government activities. In fact, FOIA has been overrun with requests that do not serve its imagined purpose. The number of FOIA requests the federal government receives has steadily risen each year, and in each of the last four fiscal years that number exceeded 700,000 requests. (2) In fiscal year (FY) 2016, for the first time, the number spiked to more than three-quarters of a million total requests filed. (3) This level of public engagement with the law is frequently cited as evidence of FOIA's success. (4) Even government officials, while noting concerns about costs and burdens to government agencies, still tout the number of requesters as evidence that "the statute is functioning well." (5)

The sheer volume of FOIA requests alone, however, cannot demonstrate the law's success in accomplishing its oversight mission. In fact, low numbers of news media requesters suggest that FOIA may largely be serving other, unanticipated purposes. In previous work, I documented one significant category of these other FOIA requesters: commercial requesters. (6) At some agencies, commercial requesters (defined as requesters who use FOIA to further profit-making objectives) make the majority--even the vast majority--of requests. These requests not only further primarily private interests, but also appear to distort FOIA's operation as a whole. And there is no good reason to use FOIA for these purposes: evidence suggests that the information businesses seek from government agencies often could be better delivered through a targeted affirmative-disclosure model. (7) Under such a model, agencies would analyze their own FOIA logs to identify categories of records that are routinely requested and publish those categories proactively in a searchable, downloadable, indexed database for all to use equally. (8)

This Article reveals another distortion in FOIA's present-day operations. At many federal agencies, first-person FOIA requesters constitute the overwhelming bulk of requesters. Indeed, their ranks likely outnumber commercial requesters government-wide. On the one hand, the mismatch between FOIA's design and its actual use undermines its efficacy for democratic accountability. Resources are diverted to these unintended uses, clogging FOIA offices and hindering requesters whose use aligns with Congress's vision for FOIA. On the other hand, FOIA is often also an inefficient mechanism for agencies to deliver first-person information; in many cases, tailored alternatives would facilitate better governmental administration from the agency's perspective.

Equally important, however, are the interests of the individuals trying to access their own files, which FOIA often devastatingly fails to serve. In a variety of contexts, FOIA is slower than other obvious ways that agencies could provide first-person information to the public. (9) Late FOIA responses can result in the wrongful denial or delay of important benefits or, as in WM's case, an inability to effectively defend against enforcement proceedings. Moreover, FOIA essentially requires a collateral proceeding, in which members of the public may have to file an administrative appeal or even a lawsuit to enforce their rights to access records. They may not have the resources to pursue an additional dispute with the agency and thus may never obtain full access. While these individuals may not have formal due-process claims to broader access rights, forcing them to resort to FOIA undermines due-process interests in fair proceedings and accurate agency determinations. Reforms should promote alternative avenues for would-be first-person requesters--both to better meet their needs and to refocus FOIA operations on serving requesters who are central to the statute's purpose.

This Article provides the first in-depth account of first-person FOIA requesting based on original datasets of FOIA logs from select federal agencies and on interviews with lawyers who use FOIA in their representation of clients before those agencies. The Article proceeds in four Parts. Part I sets out a framework for understanding FOIA's central purpose of facilitating government oversight and democratic accountability and suggests that, despite its current shortcomings, FOIA still plays an indispensable role in that regard. It further documents the balance FOIA strikes between government transparency and the protection of personal privacy. Personal privacy is the basis for withholding requested records in two different places in the law, and Congress envisioned that most records concerning particular individuals would fall outside of FOIA's primary purpose. Part I further defines what constitutes a first-person FOIA request for the purposes of this study and describes how agencies are required to process such requests under the law.

Part II reports the analysis of original datasets from seven federal agencies within several different departments, each demonstrating a significant number of first-person FOIA requests. At some agencies, the tens or hundreds of thousands of first-person FOIA requests make up nearly all of the requests received. This Part not only analyzes the nature of the requests and identities of the requesters, but also documents the motivations behind the requests. To do so, this Part relies on interviews with lawyers who represent clients in matters before these agencies and who make frequent first-person requests on behalf of their clients. This Part shows the variety of ways in which first-person requests serve vital private interests. It further demonstrates that these requests primarily advance these private interests, not the public's interest in transparency.

Part III details the mismatch between FOIA and private individuals' needs for first-person information held by the government. On the side of...

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