Let’s start with three facts.
When Steven Mnuchin was Trump’s Treasury Secretary, his plane travel cost taxpayers $1 million. The Trump White House sought to bury a government health study on PFAS, a class of toxins found in drinking water. For nearly two decades, the U.S. government misled the public about “progress” in the Afghanistan War.
These facts seem disconnected. In most ways, they are—but they share a common origin. We only know them because of a powerful law: The Freedom of Information Act (FOIA).
FOIA: The heart of government transparency
FOIA, which will turn 54 years old this summer, is the beating heart of government transparency. FOIA guarantees any member of the public—you, your grocer, your grandma—the right to ask for government records, from federal employees’ emails to phone logs to reports and everything in between. FOIA is a key weapon in the public’s arsenal, empowering anyone and everyone to hold government accountable.
That’s a big deal, so let’s celebrate. This week is the 15th annual Sunshine Week, when nonprofits, journalists, civic leaders, and educators commemorate the tools that promote government transparency, like FOIA and its state and local counterparts, called “sunshine laws.” So let’s toast to FOIA—the good, the bad, and the bureaucratic. Then, let’s work to ensure our government makes FOIA better and transparency the default.
At UCS, a busy four years of FOIA
UCS’s Center for Science and Democracy had a busy year in 2020 scoping, drafting, submitting, reviewing results from, and even appealing FOIA requests—in fact, we had a busy four years, submitting more FOIA requests than ever before to keep up with political officials’ unprecedented efforts to undermine, censor, and ignore the science. How busy were we, exactly? Since the inauguration of the 45th president on January 20, 2016, we’ve racked up some impressive numbers:
In 2020 alone, we used FOIA to ask for records from dozens of federal agencies, from the Census Bureau to the CDC, from NASA to the Education Department. When we asked the US Postal Service for years of delivery data, their dedicated FOIA team sent us the records we needed to identify worrying trends in mail delivery (read our report and article). When we asked the Fish and Wildlife Service (FWS) for records about the Trump administration’s decision to gut the Migratory Bird Treaty Act, we discovered that FWS staff had expressed concerns about the rushed decision but were ignored. When we asked the EPA for years of staffing logs, the records they provided showed that the Agency lost more than 1,000 scientific staff during the Trump administration.
These discoveries would have been impossible without the hard work of FOIA officers. Across agencies, FOIA officers helped us fine-tune our requests, scoured databases for the information we sought, kept us updated on progress, and shared their results—all in the name of transparency (and with endless patience). To these FOIA officers, thank you.
FOIA’s flaws
So yes, 2020 saw many FOIA successes. But don’t be fooled: FOIA is a big tool beset by big problems. The landmark law, spurred by Nixon-era political malfeasance, has lost (many of) its teeth. Below, we list three of FOIA’s most glaring issues.
- Delays are rampant. By law, federal agencies must “promptly” release records to the public, processing requests within 20 working days. This rarely happens. According to the Washington Post, it takes agencies an average of nearly 40 days to process “simple” requests, and far longer for “complex” ones. Here at UCS, we have FOIA requests from April 2017 that we’re still waiting on. If a FOIA is delayed, what can be done? Not much—unless you sue. As Charlie Savage, a New York Times correspondent, put it, “FOIA is basically useless if you don’t file a lawsuit to force the government to act.” Lawsuits like these are expensive and time-consuming, an enormous barrier to entry.
- The government abuses exemptions. The government can’t release every record: they shouldn’t publish details of employees’ private lives, for example, nor information that would imperil anyone’s safety or security. These are sensible limits, and FOIA accounts for them with sensible exemptions. The government can use any of nine exemptions to redact (black out) information or withhold records entirely. Makes sense, but only if used correctly—hence the problem. The government dishes out exemptions indiscriminately and inconsistently, burying records that should be public. Federal employee’s emails about upcoming policies? Redacted. The headline of an already-public news article? Redacted. How about the sex of a heroic Special-Ops dog? Also, incredibly, redacted.
- FOIA is under-resourced. FOIA offices at many agencies are understaffed, underfunded, and overloaded with requests: by the end of the 2020 fiscal year, federal agencies still had 120,436 requests that had not been processed in the required time. But FOIA offices aren’t getting the resources they need to chip away at these backlogs. According to American Oversight, the Department of Justice allocated a mere three-tenths of a percent of its budget to FOIA processing in 2019.
The path forward
These are tough issues, but the nation’s government watchdogs won’t be deterred. Groups like Open the Government, Project on Government Oversight (POGO), Citizens for Responsibility and Ethics in Washington (CREW), American Oversight, and the Government Accountability Project (GAP) have fought tirelessly for the public’s right to information and a transparent government. Now, just a month and a half away from Biden’s 100th day in office, FOIA advocates are pushing for crucial reforms, urging the Biden administration and Congress to strengthen the Freedom of Information Act; adequately fund FOIA offices, taking into consideration backlogs and the demand for records; abide by a presumption of openness, so that records are preemptively made public and FOIA serves as a backup; modernize recordkeeping with strong investments in technology; and commit, from Day One, to an open, accountable government. President Biden has already signed an executive order on ethics commitments. This is an excellent start, and we’ll hold him to it.
In honor of Sunshine Week, we urge our elected leaders to be champions for open government. With their commitment, FOIA can live up to its potential and keep our leaders accountable to the people.
Wasteful spending? Government corruption? Secret meetings behind closed doors?
Not on FOIA’s watch.