By Zach Brown
Happy Sunshine Week! Sunshine Week is a special time every year when the media, civil society organizations, and the government all join together to celebrate transparency and the power of open government.
But first, let’s get a little more comfortable with the key law at play.
Passed in 1966, the landmark Freedom of Information Act (FOIA) gives the public the right to request and receive government records, subject to nine narrow 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 important discoveries across the nation. And throughout our own history, Public Citizen has always had FOIA in our advocacy toolkit. Our Litigation Group regularly represents requesters in lawsuits against government agencies that are illegally withholding documents and provides expert advice to requesters who have not received the information that they have a right to receive under FOIA.
Time is of the Essence
Unfortunately, FOIA has not fully lived up to its promise to provide prompt public access to government records. For example, even though the law states a 20-working 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.
Over-redacted Documents, Underserved Americans
Moreover, even when FOIA requests are responded to, the documents are routinely over-redacted by our government, leading some requesters to have to administratively appeal the agency’s response to their requests and potentially go through a long arduous court battle just to receive the information that rightfully should have been disclosed in the first place. In January of 2021, the Government Accountability Office issued a report detailing that between 2012 and 2019, the use of statutory exemptions far outpaced the growth of FOIA requests. And given all that’s been going on the last few years, is now really the time for our government to be even less transparent?
Although 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 overly broadly in attempting to withhold information. One case that had a particularly harmful outcome is the 2019 U.S. Supreme Court case, Food Marketing Institute v. Argus Leader Media (FMI), 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 had been used by courts for decades, to determine whether information was “confidential,” courts primarily looked at whether it would cause substantial competitive harm to the company. The Supreme Court, however, overruled that test and instead held that “confidential” meant “private” or “secret.” Under FMI, information can be “confidential” under exemption 4 without considering whether its release would cause substantial competitive harm.
A Time For Reform
Given all the holes in our current patchwork FOIA administration, the whole system needs a major overhaul.
The aptly titled Open and Responsive Government Act fixes the harmful FMI Supreme Court case and will reestablish the ability of requesters to use FOIA to access commercial or financial information that is submitted to the government and that should rightfully be disclosed to the American people. By reestablishing the definition of confidential in exemption 4 to focus on whether the release of information would cause competitive harm to the person from whom the information was obtained, the bill 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. And while it hasn’t been introduced yet in the 118th session, we at Public Citizen will continue to push for its reintroduction and passage in the coming months.
But there is some good news! Just as recently as this previous Monday, the Justice Department released new Freedom of Information Act guidelines, stressing that there should be a presumption of openness to data and information. Additionally, as a part of the U.S. Open Government National Action Plan, the Office of Information Policy released a new update to their FOIA Self-Assessment Toolkit, providing new modules and tools for federal agencies to evaluate their transparency measures and improve for the future.
During this year’s Sunshine Week and beyond, we at Public Citizen will continue to push for a more fair and open government that truly responds to citizens’ need for truth and transparency.