According to the law, agencies must respond to Freedom of Information Act (FOIA) requests within 20 business days, barring “unusual circumstances”—and the pandemic certainly qualifies as “unusual.” Agencies can deny any access to records if their disclosure would endanger national security, violate personal privacy, reveal privileged communications, or interfere with law enforcement. “Freedom of Information Act: Update on Federal Agencies’ Use of Exemption Statutes,” a U.S. Government Accountability Office (GAO) report released on Feb. 11, 2021, notes that the use of exemptions more than doubled from FY2012 to FY2019. In this time period, the number of FOIA requests processed by federal agencies increased 32%, from 666,000 in FY2012 to 878,000 in FY2019.
As staffers began working from home last March, federal agencies were expected “to use their websites to inform requesters about processing delays related to the COVID-19 pandemic and the most efficient way to submit requests.” According to an initial Office of Government Information Services (OGIS) assessment of federal agency websites between May 15 and June 9, 2020, “nearly 60 percent of federal FOIA websites did not provide updates on how the pandemic affected the processing of FOIA requests.” Wanting to encourage others to make these adjustments to their websites, OGIS offered language guidance for agencies to use. During the first 2 weeks of October 2020, OGIS conducted a follow-up assessment of 305 cabinet-level departments, their components, and independent agencies, finding a 10% increase in the number of FOIA websites containing an alert. However, that still left half of the sampled departments with no message on their website indicating how COVID was affecting FOIA request submissions and processing.
What Happens When FOIA Requests Are Denied
People often turn to the courts when their FOIA requests have been denied. According to the FOIA Project, “federal judges are increasingly failing to rule in a timely manner. … Even after filing suits, FOIA requesters are facing longer and longer delays before their cases are decided.” Evidence of these delays is reflected in the number of FOIA cases pending in the federal courts: 1,683 at the end of FY2020 compared with 467 just 10 years ago. A dozen cases have been waiting 10-plus years for a ruling in district court.
Delays in processing FOIA requests have consequences. Transactional Records Access Clearinghouse (TRAC) notes that “for example, FOIA requesters who sought records about Trump administration policies often will not obtain them until long after President Trump has left office. And unless matters change, the same will be true for FOIA requesters seeking records about the new Biden administration’s policies.”
An Open and Transparent Administration
On retiring as executive editor of The Washington Post, Marty Baron said, “It’s not always in the interest of the administration to tell us what we need to know, and what the public should know and deserves to know.” Journalists and advocacy groups will continue to press presidential administrations about their policies and use these exchanges to publish articles and reports for the public to review.
For example, President Joe Biden faced scrutiny for waiting 64 days into his administration to hold a formal press conference. USA TODAY notes that “former President Barack Obama held a press conference 20 days into office, while former President Donald Trump held a briefing on his 27th day.” Fox News points out that even when President Biden has taken questions from the press, they were from preselected reporters. However, President Biden’s administration offers journalists background briefings on new measures “or even an on-record appearance from someone who had worked on it. … Under Trump, it would sometimes take days after an Oval Office signing ceremony for the text of an executive order to become available. …”
Lately, the new administration is being pressed to open the White House virtual visitor logs. The logs would indicate who has the president’s ear, perhaps influencing policy decisions; these individuals would be resources whose views on issues should be explored. While the White House has said that it will release in-person visitor logs, “it doesn’t plan to divulge the names of attendees of virtual meetings, which are the primary mode of interaction until the coronavirus pandemic eases.”
Prior to President Trump’s inauguration, scientists and librarians archived climate-related material on the U.S. Environmental and Protection Agency (EPA) website “to preserve valuable and vulnerable information on federal government web servers.” At the end of the Trump administration, historical groups sued to ensure that all presidential records would be preserved. Rep. Carolyn Maloney (D-N.Y.) introduced a bill (HR 1929) to update the Presidential Records Act of 1978 so that “electronic messages are preserved and able to be searched easily.”
Archivists’ roles have always had the dual purpose of preserving records and making them accessible, particularly to historians who add context to the discussion. In its recently released report, “Access Denied: Federal Website Governance Under the Trump Administration,” the Environmental Data & Governance Initiative (EDGI) makes several overarching recommendations to the Biden administration, including “[committing] to the importance of web governance by developing and maintaining digital policies and procedures that focus on website structure, content, and access, with special attention to regulatory-related resources; [creating] meaningful resources to expand civic and scientific literacy; and [ensuring] resource accessibility.” EDGI advocates, “Website information should be available, discoverable, and navigable,” and that the Biden administration should share “specific notice and explanation requirements for any resource removals, and develop a searchable database that describes changes on webpages.”
What Budgets Reveal About Priorities
Government policies are reflected in budget allocations and how federal agencies spend the money. Posting individual budget requests on agency websites, along with the justifications for the amounts, would allow the public to understand not only how much is being requested, but also how those funds will be used. Aggregating agency budget documents across the government on a single site would increase the public’s understanding of how their tax dollars are being used.
In February 2021, Senators Gary Peters (D-Mich.) and Rob Portman (R-Ohio) reintroduced S 2560, the Congressional Budget Justification Transparency Act of 2019, requiring that all federal agencies post justifications of their congressional budgets on their websites. According to the bill summary, it also proposes that the Office of Management and Budget “make certain details regarding the materials available to the public, including a list of the agencies that submit budget justification materials to Congress, the dates that the materials are submitted to Congress and posted online, and links to the materials.” In addition, the bill mandates that the Treasury Department post agencies’ budget documents on USAspending.gov.
Should FOIA Apply to the Legislative and Judicial Branches of Government?
FOIA applies only to the executive branch of government. During the OGIS FOIA Advisory Committee meeting on March 3, 2021, Daniel Schuman, policy director at Demand Progress, posited ways in which FOIA-like remedies might proactively disclose information. Progress has been made in recent years—for example, the Library of Congress’ undertaking to publish Congressional Research Service (CRS) reports on a dedicated website. In Schuman’s view, “If you can buy [the info] from a 3rd party, the Legislative branch should proactively disclose it instead. … If it is already disclosed in some format, it should be disclosed as data.”
According to another presentation at the same meeting, this one by Michael Lissner, executive director of Free Law Project, the judicial branch should take a similar approach by opening the following to public scrutiny:
- Disciplinary actions and complaints for judges and attorneys, whistleblower reports, disbarment proceedings, admission records
- Financial records and contracts
- Fines and fees levied
- Security audits, recovery plans, and incident reports
- SCOTUS public calendar
- Judicial Conference committee membership and minutes
- List of all judges past and present
These are just some of Lissner’s examples. He added to his wish list a FOIA-like process for appealing rejected requests.
The Movement to #openpacer
Just as the release of CRS reports was the focus of a multiyear battle, the fees people pay to read court documents in the Public Access to Court Electronic Records (PACER) service are now the cause célèbre. And rightly so. Per Fix the Court, PACER fees are “$0.10 per page of search results and $0.10 per page of case documents.” In addition, PACER’s legacy system lacks an intuitive user interface and does not have the range of modalities of modern data retrieval that citizens have come to expect. Also, trial exhibits remain unavailable from within PACER.
The current Congress is likely to see additional calls for transparency across each of the three branches of government, although it’s unclear how many of the bills introduced will wind up enshrined in law. Several bills were introduced during Sunshine Week 2021, including S 807, permitting the televising of Supreme Court proceedings, and an amendment to the Federal Advisory Committee Transparency Act. Sunshine Week also saw a flurry of editorials in local papers calling for greater openness in government workings. How many municipalities will heed those pleas will no doubt become clear by next year’s Sunshine Week.