Sunshine Week 2023, Part 2: What Is FOIA and Why Does It Matter to You?

In a previous post, I gave you an overview of what transparency looks like in the Federal Government, including links to various online resources that the government maintains to disseminate information to the public. By and large though, the most useful — and powerful — conduit for Federal Government transparency is the Freedom of Information Act (FOIA). Here’s quick overview of what FOIA is, and how it affects us all.

What is FOIA?

The Freedom of Information Act is a law passed by Congress in 1966 (effective 1967) that gives the public a right to request “records” from any executive agency of the Federal Government.

Any individual or organization may submit a request to any executive agency, outside of the Legislative and Judicial branches, to ask for records. There are nine exemptions under FOIA ranging from information concerning national security to the location and details about wells.

Requesters must “adequately describe” the records they are looking for, and agency personnel then must search for and collect “responsive records” and redact the portions of those records that are exempt from disclosure. Agencies are required to provide a response to the requester, typically within twenty days (unless there are “unusual circumstances”). If they fail to do so, or the requester thinks the response was inadequate and improper, then the requester can sue the agency in court.

In FY21, the Federal Government received over 800,000 FOIA requests, and processed even more than it received. Even so, the average time for responding to FOIA requests still far exceeds 20 days and backlogs have continued to grow — reaching to over 150,000 still in agency queues at the start of FY22.

What is FOIA Used For?

FOIA is used by many different people for a wide variety of purposes. Some of the larger categories include:

• Individuals and watchdog groups that file FOIA requests to keep the government honest and accountable.
• Journalists and historians who use FOIA as a research tool to gather documents and data to bolster the work they are doing. If you read the news, there is a nearly 100% chance that some story you’ve read has used FOIA to establish critical facts.
• Businesses that collect government data for commercial purposes, either for themselves or others. These include, among others: lawyers and law firms gathering information as part of ongoing investigations; information resellers that collect government information to aggregate and package databases for commercial purchase; businesses requesting procurement information, competition, or government practices to improve their standing in the market.

There has been some discussion over the years about limiting access to FOIA, for instance by only allowing citizens to file requests or to prohibit commercial requesters, but so far advocates for open government have won the day.

Why Does This Matter to You?

FOIA is a fundamental cornerstone of our ability ensure that our country remains a vibrant and functioning democracy; “Sunlight is the best disinfectant”. As a part of the government, you have a special role to play in keeping FOIA alive. There is a saying in the FOIA world that “FOIA is everyone’s responsibility”. As the DOJ likes to remind Federal Government employees:

Any documents you create or maintain as part of your job may be responsive to a FOIA request. FOIA professionals at your agency will receive and respond to requests, but they may call on you for assistance in searching for responsive records and reviewing those records for release.

It can be difficult, if not impossible, to keep up with FOIA requests, especially because these offices are routinely understaffed and underfunded. Believe me when I tell you that these FOIA professionals are doing everything they can, not just to bolster government transparency, but to keep your agency and its employees off the front page of the news and out of court. So, in the name of Sunshine Week, do what you can to help them — and all of us — by showing them some love when you have the chance.

Benjamin Tingo is the Chief Legal Officer and Vice President of Strategic Partnerships at OPEXUS. OPEXUS (formerly AINS) is a DC-based GovTech 100 awardee whose mission is to empower professionals to elevate trust in public institutions through the design, development, and delivery of specialized case management software, including Open Government (FOIA and Correspondence), OIG Audits and Investigations, and Human Resources/Employee Management. Benjamin is a licensed attorney, with nearly twenty years of experience with complex civil and criminal litigation and as in-house GovTech counsel. He is also a member of NARA’s FOIA Advisory Committee and a volunteer firefighter.

Image by Olexandr Ignatov on Unsplash