2024 Sunshine Week
By Zachary Brown
Why do open government advocates love the month of March? Sunshine Week! Sunshine Week is a moment each year when the media, civil society organizations, and the government come together to commemorate transparency and the fight for a more open government.
And when it comes to government transparency, one of the key tools that advocates have to shine a light on government operations is the Freedom of Information Act or FOIA.
Enacted in 1966, FOIA grants the public the right to request and obtain government records, subject to nine specific exemptions such as national security, privacy, and active law enforcement proceedings. Since its inception, this transformative transparency law has led to significant discoveries nationwide.
FOIA Delays: A Growing Concern
Unfortunately, FOIA has fallen short of its promise to ensure timely public access to government records. Despite the law stipulating a 20-working day deadline for government agencies to respond to FOIA requests, this deadline is seldom met. There have been instances where agencies have taken years to process FOIA requests. In fact, a recent report by the Congressional Research Service concludes that the problem may even be getting worse, as analysis of the Freedom of Information Act online data shows the amount of unanswered FOIA requests has grown from about 131,000 to 207,000 over the years of 2018 and 2022. Talk about going in the wrong direction.
Redactions Galore
Furthermore, even when FOIA requests are fulfilled, government documents are often excessively redacted, prompting some requesters to challenge the agency’s response and potentially engage in protracted legal battles merely to obtain information that should have been disclosed initially.
So, while Congress originally intended FOIA to serve as a vital tool for public accountability and information dissemination, the government and the courts frequently interpret exemptions too broadly, leading to excessive information withholding. A notable example is the 2019 U.S. Supreme Court case, Food Marketing Institute v. Argus Leader Media (Argus Leader), which altered the longstanding legal standard for withholding “confidential” commercial information under FOIA’s fourth exemption. Instead of primarily considering whether disclosure would cause significant competitive harm, the Supreme Court ruled that information was “confidential” where it was customarily and actually treated as private by its owner and provided to the government under an assurance of privacy, allowing information to be withheld without assessing its potential competitive impact.
Time for Major Change
Considering the shortcomings in our current FOIA framework, a comprehensive overhaul is necessary.
Reintroduced in this legislative session, the aptly named Open and Responsive Government Act rectifies the detrimental effects of the Argus Leader Supreme Court decision and restores requesters’ ability to access commercial or financial information submitted to the government that should rightfully be disclosed. By amending exemption 4 to require a showing of substantial competitive harm, the bill makes it more difficult for the government to conceal corporate information from the public. Public Citizen continues to rally for the passage of this legislation, understanding it’s our right to government transparency and accountability. After all, we all deserve a front-row seat to the inner workings of our government!
More Collaboration, More Solutions
As Public Citizen works to reform FOIA through the legislative process, there are also opportunities to strengthen this key transparency law through the administration. For example, by working for bold FOIA commitments as part of the next Open Government National Action Plan.
Serving as a cornerstone member of the Open Government Partnership, the U.S. government has engaged in a global effort to advance government transparency and citizen engagement. Every two years, participating nations craft a National Action Plan, working alongside civil society representatives to outline federal commitments aimed at enhancing government accountability and openness.
Public Citizen believes the FOIA commitments made through the 5th National Action Plan released in December 2022 were not bold enough, and we are not alone. Additionally, the Independent Reporting Mechanism of the Open Government Partnership has chided the U.S. for, among other things, not working as closely as they should with civil society to co-create the commitments of the last National Action Plan. But there is cause for hope that stronger commitments will be made as the U.S.’s 6th National Action Plan is developed. There is now a new Open Government Secretariat, housed at the U.S. General Services Administration, and it seems to be taking its charge to heart. In February, the Secretariat held a meeting to dig in on how best to engage with outside organizations to craft the next open government plan. We plan to be active participants in the co-creation process to ensure that bold FOIA commitments are included in the next National Action Plan.
At Public Citizen, we firmly believe that by shining a light on government actions we can create meaningful change, paving the way for a more responsive government that truly serves the needs of the American people.
Stay tuned for more ways to get involved!