The Problem With FOIA

In a recent Morning Report, JJ had a link to an article about FOIA. In a surprise to nobody with a pulse, it turns out that the government is as recalcitrant as ever when it comes to FOIA requests. The linked article focuses on the delays in some agencies due to their gutting by DOGE, and the closure of some FOIA-focused offices in other agencies. The Trump administration is better in regard to transparency than others have been, but FOIA remains a poor process fraught with willful and coincidental delays.

FOIA is a bureaucratic process and one must expect delays with any bureaucratic process, but FOIA has long seemed particularly bad. Agencies despise FOIA and don't exactly bend over backwards to comply with it. FOIA violations are rarely punished and disclosures are always slow-waked whenever possible. This is part and parcel with FOIA and the Act has never worked the way its writers intended. This is at least part, I think, because FOIA was badly founded and hasn't kept pace with the times or technology.

The problem with FOIA's basis is an assumption of secrecy. Agencies - all agencies - are allowed to keep secrets and everything is secret by default. If you make a FOIA request, it's right there in the name, at least colloquially: it's a request. A request is subject to denial. This should never have been permitted. It should have been a FOIA demand or a FOIA order. Demands can be rejected or orders disobeyed, but the expectation that it is a mere "request" should never have been the norm. But by this point in the state of common technology, however, even FOIA demands should be superfluous.

FOIA should have been repealed and replaced at least twenty years ago, and its assumption of secrecy thrown out with it. This country is, after all, a rePUBLIC. Governance should be performed in public, by default. There should be no default secrecy and no assumption that an agency is allowed to not disclose something. All government activities should be public and available to the public from the start, with no demand for information needed. No government document, E-Mail, contract, memo, etc. should be private in the first place. There should be no need to demand access.

Access should be public. Access should be on the web, using the same organizational structure as the agency. If Agency X, Directorate Y, Group Z, Team 2 produced a document or a sent an E-Mail, it should just be immediately published unless it has to do with a contract currently in the bidding process (in which case it should be published - along with all other materials - the day the bid closes). The government has no trade secrets (it does not engage in trade). The government has no expectation of - or right to - privacy (they are public servants). Under normal circumstances, personally-identifiable information ("PII", which is both an industry and government standard) should be stripped and then the material published. Immediately.

If information is formally classified, it can remain private. In that case, a stub entry should be created and published. The system should tell you that a document, memo, E-Mail, etc. exists and which part of which agency produced it, even if the document itself is not disclosed. This - inappropriate classification - should be the only place for a FOIA-type demand. "I know you made it, I know it exists, and I think it's BS that it's classified. I want a review." Other than that, or if you can argue public interest in the exposure of PII, the information should just be available from the start and as the norm.

So "FOIA is under attack" per those paying attention, and I have no reason to assume that this is hyperbole. This is not, however, new in any way. FOIA has been "under attack" since the moment it was passed. FOIA has been the focus of obstruction and non-compliance as long as it has existed. No bureaucrat has ever wanted to comply with it in the first place, and no one sentenced to a FOIA office has ever gone out of his way to make the process smooth or effective.

FOIA doesn't work, has never worked and never will work. Where you can drag information out of a FOIA office, it will be incomplete and redacted unless you bull-dog them for months and even then your odds are poor. So just get rid of it. FOIA is unfit for purpose. Repeal it and replace it with default-transparency laws, with demotions and terminations for non-compliance and jail time penalties for chronic non-compliance or inappropriately classifying materials.

This is a public government, and we have the technology to enforce that. So do away with FOIA. Do away with default secrecy. Do away with "requests."

Publish or perish.

posted by Joe Mannix at 03:10 PM

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