Making the Promise of Open Government a Reality

Celebrating Sunshine Week and the Need for FOIA Reform

By Zach Brown

Fun in the sun, indeed. This week marks Sunshine Week, a special period every year when the media, civil society organizations, and the government all join together to celebrate transparency and the power of open government. But just in case you don’t see what’s got us all feeling so bright this week, let’s shed some light on the truth-revealing might of the Freedom of Information Act.

Passed in 1966, the landmark Freedom of Information Act (FOIA) gives the public the right to request and receive government records, subject to nine exemptions for categories of information like national security, privacy, and when disclosure is prohibited by law. Since its inception, the use of this transformative transparency law has led to bombshell discoveries across the nation. Throughout our history, Public Citizen has always had FOIA in our advocacy toolkit. And our Litigation Group regularly represents requesters in lawsuits against government agencies that are illegally withholding documents and provides expert advice to requestors who have not received the information that they have a right to receive under FOIA.

While every year Sunshine Week is undoubtedly a time of festivity, it’s also the perfect time to reinvigorate our push for a more transparent government by working together to improve FOIA.

The (slow) Speed of Light

Unfortunately, over the years the “disinfecting” sunlight that FOIA requests are supposed to provide to illuminate our government’s operations has been dimmed by both inefficient government processes and inadequate resources and technology. For example, even though the law states a 20-day deadline for government agencies to respond to FOIA requests, the deadline is rarely met. We have even had agencies take years to process FOIA requests. In fact, a recent evaluation of FOIA implementation found that agencies regularly took more than 39 days to process requests, and took at least a staggering 400 days to process 15% of the requests.

FOIA’s Misguided Corporate Shield

 Remember those nine exceptions we mentioned earlier? While Congress’ initial intent in passing FOIA was to provide an essential tool to the public to hold our government accountable and provide the public with as much information as possible, the government and the courts too often interpret the exemptions broadly to allow the government to withhold information. One case of particular concern is the 2019 U.S. Supreme Court case, Food Marketing Institute v. Argus Leader Media, which set aside the longstanding legal test for when information can be withheld as “confidential” commercial information under FOIA’s fourth exemption. Under the test that was used by courts for decades, exemption 4 applied to information that a company had submitted to the government, where the company treated the information as confidential and its disclosure was likely to cause substantial competitive harm to the company.  The new test adopted by the Supreme Court looks only at whether information is actually and customarily treated as private by its owner and whether it was given to the government under an assurance of confidentiality.  Under this standard, information can fall within the exemption even if releasing it would cause companies no harm at all.

A Chance for Reform

 However, there are some new developments on the FOIA reform front! On March 15th, Senators Chuck Grassley and Patrick Leahy reintroduced the Open and Responsive Government Act, a bill that bolsters the ability of FOIA to allow access to information that should rightfully be disclosed to the American people. By focusing the definition of confidential in exemption 4 on whether the release of information would cause competitive harm to the person from whom the information was obtained, the bill returns the state of the law to what it was for decades, and makes it harder for the government to keep information about corporations secret from the American people. Other changes to FOIA put forth in the bill include clarifying that agencies cannot redact portions of responsive records as unresponsive. This change is needed to address an agency practice of redacting non-exempt material and will reinforce the statutory requirement that, under FOIA, requested information must be released unless it is exempt.

Although FOIA could be improved in many additional ways beyond the Grassley bill (this blog truly hasn’t even scratched the surface), it’s encouraging to see legislation like the Open and Responsive Government Act introduced in the Senate.

 This week and every week, Public Citizen will continue to advocate and support legislation that works to turn the promise of a free and open government into a reality.