The Need For Deep Pockets And Lawyers Means The FOIA Process Benefits Corporations The Most

from the and-the-general-public-gains-nothing dept

FOIA reform is (yet) again working its way through the bowels of Congress. Unfortunatley, the FOIA process is resistant to fixing because there's very little in it for the government. Agencies are supposed to err on the side of openness and transparency, but a stack of broadly-written exemptions makes it's far too easy for them to operate in opacity.

One of the major problems with the FOIA process is that it takes a lawyer on retainer and lots of money to get the most out of it. For most FOIA filers, an agency's refusal to respond in a timely fashion or release requested information is the end of the line. Unless they're working in conjunction with a major journalistic enterprise, the FOIA ball is completely in the government's court.

Over the past few decades, this has led to only certain components of the American public being able to make the most of the FOIA process. And these entities aren't interested in dragging the government's secrets out into the open. They're more interested in acquiring information on other private entities via the government's transparency tool.

Prawfsblog, by way of Scott Greenfield, noticed something about some FOIA stats. The "people" making the most requests aren't "people" in the generally accepted use of the word.

Margaret Kwoka of Prawfsblog notes the law isn't really serving the purpose it was intended to.

The reality today, though, is that news media make up a tiny fraction of requesters – in the single digit percentages at most agencies. Journalists find the law slow in operation and the fight for access to be resource intensive. They simply don’t have the time or legal budgets to take full advantage. Nonetheless, despite the loud complaints about FOIA’s failings, the federal government now receives over 700,000 FOIA requests a year, so FOIA must be serving someone’s interests at least well enough to keep them coming back for more.

This is something that has been noted here before. FOIA requests roll in from journalists when hints are dropped (usually by anonymous government officials) about something not previously exposed. In response, government agencies quite often stonewall requesters until Issue X fades from the public eye. And there's not much any requester can do to expedite the process other than file a lawsuit -- which isn't an option for many people. Scott Greenfield points out what happens to the average (read: non-corporate) requester.

Make a FOIA request, wait your ten days, and get . . . nothing. Complain and get . . . nothing. Maybe you get a response years later. And when you do, maybe it’s responsive, or maybe it’s ten pages, fully redacted, out of 473, the rest of which is refused. Or maybe you get . . . nothing.

Somebody in the government is supposed to respond to a FOIA request. That somebody has a job to do, and it’s not responding to your FOIA request. Maybe you get notification that they would be thrilled to respond, if only you would send them $71,493.27 to cover the cost of your ten pages. And they will still get back to you when they’re good and ready, if at all.

What you gonna do about it?

The government knows this. And it likes it this way. FOIA reform is a perennial effort, but the law remains greatly unchanged. No one wants to shift too much power to the people and make the letter of the law approach the spirit of the law. But, as is the case with much of the government, it finds itself relatively powerless in the face of deep-pocketed corporate interests.

Large corporations have the staffing, money and lawyers to make the law work the way it's supposed to work. And the government is more than happy to oblige them. First off, these entities have the power to compel the government to produce requested documents. Secondly, the information being turned over to requesting corporations has very little to do with the government's secrets. As long as well-lawyered corporations are asking for little more than info on their competitors, the government is all too happy to reply to their requests.

There’s gold in government documents, and these are the documents that the government doesn’t care enough to keep private, mostly because what they reveal isn’t any of the government’s deep, dark secrets, but ours.

What's more, the information requested by these corporations goes into their private stock. It's very rarely offered up for public consumption. The government doesn't mind making its secrets someone else's secrets. But it certainly doesn't care for its secrets being made public knowledge.

The FOIA process is broken -- hopefully not irrevocably. There are moments where it works brilliantly, but mostly due to operator error on the respondent side. Things slip through that were obviously meant to be kept buried. Inconsistent redactions allow one requester to access what another couldn't, etc. But, on the whole, the "presumption of openness" urged by the administration is never going to take hold without serious reform of the existing law.

As Greenfield notes, the presumption of opacity is still in full effect, even when that opacity is patently ridiculous.

As of this date, the FOIA website still lists Eric Holder as Attorney General, even though he has been replaced by Loretta Lynch. When Holder’s resignation was announced, the Office of Information Policy made a FOIA request for the identity of the new Attorney General, so they could correct their FAQs. They are still awaiting a response.

Filed Under: deep pockets, foia, government, lawsuits, transparency