Freedom of information beyond the Freedom of Information Act.

Author:Pozen, David E.
 
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The U.S. Freedom of Information Act (FOIA) allows any person to request any agency record for any reason. This model has been copied worldwide and celebrated as a structural necessity in a real democracy. Yet in practice, this Article argues, FOIA embodies a distinctively "reactionary" form of transparency. FOIA is reactionary in a straightforward, procedural sense in that disclosure responds to ad hoc demands for information. Partly because of this very feature, FOIA can also be seen as reactionary in a more substantive, political sense insofar as it saps regulatory capacity; distributes government goods in an inegalitarian fashion; and contributes to a culture of adversarialism and derision surrounding the domestic policy bureaucracy while insulating the far more secretive national security agencies, as well as corporations, from similar scrutiny. If this Article's core claims are correct to any significant degree, then open government advocates in general, and progressives in particular, ought to rethink their relationship to this landmark law.

INTRODUCTION 1098 I. THE FOIA STRATEGY 1102 A. FOIA as a personal Enforcement Regime 1102 B. Other Regulatory Models 1107 1. Affirmative Disclosure 1107 2. Conditioning Legal Effect on Prior Publication 1108 3. Whistleblowing and Leaking 1109 4. Congressional Monitoring 1110 II. FOIA AND THE JANUS-FACED STATE 1111 A. FOIA Winners 1112 1. Commercial Requesters, Contractors, and Lawyers 1112 2. National Security Secrecy 1118 B. FOIA Losers 1121 1. The FOIA Tax: Bureaucratic Capacity and Legitimacy 1123 2. Representations of Government 1131 III. COMPLICATIONS AND COUNTERARGUMENTS 1136 A. Due Process Interests 1177 B. Investigative and the Ecology of Transparency 1138 C. Antityranny and the Ecology of Transparency 1145 IV. ALTERNATIVE PATHS 1148 CONCLUSION: GETTING OVER, AND BEYOND, FOIA 1155 INTRODUCTION

The Supreme Court has stated that the Freedom of Information Act (FOIA) (1) "defines a structural necessity in a real democracy." (2) Legislators, journalists, and watchdog groups routinely describe FOIA as "an indispensable tool in protecting the people's right to know." (3) The fact that more than one hundred countries and all fifty states have enacted their own freedom of information laws, many of them based on the federal FOIA, (4) would seem to support these claims. But the claims are false. A real democracy must have some mechanisms securely in place to shine light on the government's actions. There is no need to have a freedom of information law on the U.S. model.

On the contrary, the FOIA model has proven deficient in significant respects. Some of the causes are familiar. Notwithstanding FOIA's ostensible "philosophy of full agency disclosure," (5) the Act is shot through with exemptions (6) and has never been funded at a level that would allow agencies to respond promptly to most requests. (7) Notwithstanding FOIA's explicit requirement of de novo judicial review, (8) the courts affirm agency denial decisions at extraordinary rates. (9) Attorneys' fees and other litigation costs remain difficult to recover, (10) monetary damages are unavailable, (11) and sanctions for improper withholding are virtually never applied. (12) The law's efficacy depends on a steady supply of tenacious requesters who know what to look for; in practice, corporate lawyers, information resellers, and other private rent-seekers use it most. (13)

Other grounds for concern are somewhat subtler and yet, I believe, even more fundamental. FOIA's extension of access rights to "any person" (14) (including legal persons and foreigners (15)) makes it an entitlement program with no eligibility criteria. Rationing of benefits occurs de facto, however, through delays and denials that systematically advantage certain classes of requesters. FOIA's reliance on requests is not only "contentious and time-consuming" (16) but also establishes nondisclosure as the default norm in the absence of a formal claim for information and a corresponding "record." (17) FOIA's focus on domestic policy agencies, meanwhile, ensures that the law is least relevant for the executive branch components that are most opaque. As FOIA was becoming an increasingly vaunted symbol of "the people's right to know" over these past five decades, the amount of national security secret-keeping was only going up and up. (18) Those agencies that do have large FOIA practices can expect to be diverted from their mission by tens of thousands of requests each year, along with a steady stream of lawsuits filed by ideologically hostile parties, charges of lackluster implementation, and episodic news stories that draw on the agencies' FOIA disclosures to spotlight alleged incompetence and venality. (19)

Compared to the citizen enforcement schemes used in areas such as environmental law or civil rights law, FOIA's structure is substantially more decentralized and individualistic. It attenuates the link between the exercise of private right and vindication of the public good. The result may be the worst of both worlds: all the ad hockery and adversarialism of a "private attorney general" regime without much benefit, if any, in terms of efficient allocation of public resources or enhanced capacity to detect hidden violations of law. Add up these points, and one might find that FOIA ultimately serves to legitimate the lion's share of government secrecy while delegitimating and debilitating government itself.

Our landmark freedom of information legislation can thus be seen as reactionary on two interrelated levels. FOIA is reactionary in a straightforward, procedural sense insofar as disclosure is driven by requests for preexisting records. And partly for this very reason, FOIA is arguably reactionary in a more substantive, political sense insofar as it empowers opponents of regulation, distributes government goods in a regressive fashion, and contributes to a culture of contempt surrounding the domestic policy bureaucracy while insulating the national security state from similar scrutiny. (20) For years now, commentators have been asking whether the First Amendment is serving neo-Lochnerian ends (21) and whether the international transparency lobby is serving neoliberal ends. (22) Analogous questions can fruitfully be asked about FOIA and the global freedom of information (FOI) movement that it has spawned.

Given FOIA's many limitations and drawbacks, a forward-looking legislative approach must do more than refine the Act's request-driven strategy: it must look beyond the FOIA strategy altogether. One alternative model for producing executive branch transparency involves affirmative disclosure requirements, which can be tailored in a variety of ways and enforced by agents such as inspectors general, ombudspersons, and auditors. Another model denies legally binding effect to government policies and decisions that are not publicized in a sufficiently timely manner. A third model employs continuous oversight by congressional bodies. A fourth model looks to whistleblowers and leakers to reveal worrisome activities and dissenting viewpoints.

We have elements of each of these models in the United States. Slowly, incrementally, we have been developing them to compensate in part for the failures of FOIA. But none of these alternatives is as robust as it could be, and our affirmative disclosure norms are especially immature. To make good on the promise of FOIA over the next fifty years of the Act's life, (23) this Article submits, we will need to devote greater attention and resources to a range of information-forcing mechanisms. And to enable that shift, a shift away from the traditional FOIA model, we will need to let go of FOIA triumphalism--to stop seeing the law as the indispensable centerpiece of the open government universe, and to start seeing its reactionary elements more clearly.

  1. THE FOIA STRATEGY

    To get critical purchase on FOIA, it is important to recognize that the Act embodies one distinctive strategy among many available for promoting government openness and accountability. Without reviewing the development of FOIA in any detail, this Part will sketch the basic components of this strategy in contradistinction to other (nonmutually exclusive) strategies. The immediate goal is to clarify distinctive features of the FOIA system. The broader goal is to clarify the challenge of regulating government transparency by establishing some ideal types.

    1. FOIA as a Personal Enforcement Regime

      The engine of the FOIA system is the request for a government record. In contrast to the pre-FOIA Administrative Procedure Act (APA), FOIA allows "any person" to submit a request. (24) In contrast to many state FOI laws, FOIA applies only to executive agencies and does not reach Congress, the courts, private entities, or the President's inner circle. (25) Following receipt of a written request, agencies must turn over "reasonably describe[d]" records (26) promptly--within twenty working days absent "unusual circumstances" (27)--unless the records or portions thereof fall under one of nine enumerated exemptions. (28) Adverse determinations are subject to administrative appeal and judicial review. (29) The requester has no obligation to explain why she seeks records or to publicize them once obtained, and in practice the overwhelming share of materials obtained through FOIA have not been disseminated to the general public. (30) Government transparency is thus framed as an individual right held by the requester alone.

      FOIA is sometimes described as a "citizen enforcement" or "private attorney general" regime. (31) Like other such regimes, it relies on adversarial legal process, rather than inquisitorial or collaborative methods, to secure public values. Public-oriented inquiries by concerned citizens and their advocates, however, make up only a small fraction of the 700,000-plus FOIA requests submitted each year. (32) Studies have consistently shown...

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