National Press Club

FOIA at 50: Experts reflect on a vital but flawed transparency tool

March 18, 2016 | By Sean Lyngaas | sean.lyngaas@gmail.com

Christine Walz, an associate at Holland & Knight law firm, and an expert on FOIA, moderated the panel

Christine Walz, an associate at Holland & Knight law firm, and an expert on FOIA, moderated the panel

The Freedom of Information Act is both indispensable and falling short of its promised intent, transparency experts said at a National Press Club panel on March 16.

Backlogs and broad use of exemptions are evidence the government’s handling of FOIA requests is “progressively getting worse,” said Jason Leopold, senior investigative reporter at Vice News. Yet despite all of the flaws in FOIA’s implementation, the law is still a “hugely important tool."

It has been half a century since the signing of FOIA gave the public a means of shedding light on government’s inner workings, and panelists agreed that the FOIA process needs reforming.

The National Press Club Journalism Institute hosted the panel during Sunshine Week, an annual series of events on government transparency.

“I don’t think you can underestimate the power of bureaucracy” in impeding openness, “and it transcends any administration,” said Michael Doyle, a legal affairs correspondent at McClatchy Newspapers.

The Obama administration famously pledged to be the most transparent in history, and to make the FOIA process more efficient. However, in the first year of the Obama administration, cabinet agencies used FOIA exemptions 466,402 times, a 50% increase from the last year of George W. Bush’s presidency, according to a Bloomberg News analysis of government data.

The number of annual FOIA requests grew from about 597,000 in fiscal 2010 to about 713,000 in fiscal 2015, according to Justice Department data; the panelists generally agreed that federal agencies have struggled to cope with this swell in requests.

David Sobel, senior counsel at the Electronic Frontier Foundation, said there is a perverse incentive for agencies to drag their feet on FOIA requests. Agencies that process requests more quickly are likely to get more requests, he said.

The Senate passed legislation this week that would create a government-wide, online portal for filing FOIA requests in an effort to speed the process. The House has passed a similar measure. However, the Obama administration has lobbied against previous FOIA reform legislation, as Leopold reported earlier this month with the help of a FOIA lawsuit by the Freedom of Press Foundation.

With a renewed effort to reform FOIA on Capitol Hill, the panel considered the most effective way for outside groups to drive change.

“The non-journalistic organizations often have the feeling that the journalistic organizations feel that they have a conflict of interest in lobbying,” said Sobel, who leads EFF’s FOIA litigation project and has litigated FOIA cases since the administration of Ronald Reagan.

Leopold said journalists could do more to raise awareness on their struggles with FOIA. “It’s transparency,” he said. “Who’s against that?”

“I think it’s a combination of hard power and soft power,” Doyle said. “You need people who are pounding their fists and shedding light on the horror stories.”