Seven Reforms to FOIA and Record-Keeping to Improve Transparency and Accountability

The abuses of the Trump administration — from efforts to pressure a foreign government to investigate the president’s political opponent to the separation of families at the border — made clear how important it is that the public has transparency about what its government is up to. One of the most vital tools for the preservation of an open, democratic government is the Freedom of Information Act — a law that, as recent years have made plain, contains significant weaknesses that must be addressed to ensure the public’s timely access to important information. 

Though FOIA requires agencies to promptly respond to requests, most agencies don’t allocate sufficient resources to processing them, often taking years to respond. And despite the law’s presumption in favor of disclosing information, agencies often claim that broad swaths of information are exempt, even where there would be no real harm from disclosure. Further, there are not sufficient requirements to ensure that records are not deleted and are actually produced in response to requests.

Unfortunately, these failures serve the interests of those in power by allowing them to conceal their actions from the public. Both Congress and the Biden administration should take steps to remedy these flaws — here are seven key, common-sense reforms identified by American Oversight that would strengthen FOIA without overburdening agencies or resulting in genuinely harmful disclosures of sensitive information.

1. Require Adequate Resources for Responding to FOIA Requests

Many of the problems with modern FOIA backlogs are a question of supply and demand: There are too many requests for agencies to satisfy with too few resources. The statute requires that agencies respond to requests within 20 working days, but in practice, the deadline is meaningless. Agencies rarely come close to meeting it, and many do not produce the requested documents for years — often only after being sued to comply — preventing the American people from getting information about matters of public concern in a timely manner. 

• The Biden administration, through OMB, should direct agencies with substantial backlogs to hire or assign more employees to respond to FOIA requests and to ensure that they upgrade technological capabilities to efficiently search and produce documents.

• Congress should require agencies to substantially increase the portion of their budgets allocated to processing FOIA requests whenever they process fewer requests in a fiscal year than they had received. Congress should also consider including mandatory spending triggers when an agency’s backlog of unprocessed requests exceeds the number of requests it receives in a typical fiscal year, because such a situation indicates systematic processing delays that would prevent the agency from releasing documents in a reasonably timely manner.

2. Strengthen the “Foreseeable Harm” Standard

A common claim federal agencies make for redacting almost all substantive information from public records is the “deliberative process” privilege. In 2016, Congress sought to reduce such withholdings of substantive information by requiring that agencies reasonably foresee harm as coming from the disclosure of that information. But this standard has not altered agency practices, and courts have deferred to agency judgments of purported harm, often only requiring the agency to give a one- or two-sentence explanation for broad swaths of withheld information.

• Congress can strengthen the standard in two ways: First, it should require agencies to consider specific factors in assessing whether a foreseeable harm would result. Some examples: Is the decision or decision-making process at issue particularly sensitive or confidential? Has the decision already been made? How great would any potential chilling effect or other harm be on future deliberations? How old is the information at issue? Regardless of the sensitivity of the relevant process, how sensitive is the actual information in the record? These factors are similar to those that were contained within former Attorney General Janet Reno’s FOIA policy. As Anne Weismann has suggested, Congress could also include a provision to consider whether the public interest in disclosure outweighs any potential harm. Second, Congress should require that, upon judicial review, courts be required to make an independent, original (de novo) judgment as to whether foreseeable harm would result from disclosure, rather than deferring to the agency. 

• The attorney general can and should take an interim step of strengthening the standard by issuing a policy memorandum stating that the Justice Department will not defend agency withholdings unless it establishes that foreseeable harm would result on the basis of the factors noted above. This would be in line with the policies of former Attorneys General Reno and Eric Holder, and would immediately promote the interests of transparency. Further, the standard articulated by both Reno and Holder was eventually codified in the 2016 FOIA amendments, indicating that such guidance can promote subsequent congressional action. This is one of the key steps that Open the Government and a coalition of transparency experts have pressed for in their Accountability 2021 recommendations for the federal government. 

3. Prevent Indefinite Delays Caused by So-Called “Consults”

Agency FOIA regulations often provide that before producing records in response to a request, an agency or component will “consult” with other components or agencies that may have equities in the documents. There is no statutory time limit for the length of these consultations, leading frequently to an interminable delay that can push the production of records past the timeframe in which they are relevant, or that can be used strategically to delay releasing sensitive but nonexempt records.

Because such consultations occur only after the agency that received the request has done its search, has identified the record as responsive, and has completed its own processing, there is no reason why other components or agencies require an extended period of time to respond. Congress should provide by statute that any agency or component that fails to respond to a request for consultation within 20 working days is presumed to consent to release of the records. Agency heads (and only agency heads) could be given authority to extend that review period for an additional 90 calendar days under appropriate circumstances as identified by the statute.

4. Restore the Competitive Harm Standard for Exemption 4 Commercial Information

For many decades, federal courts required that for commercial information to be considered “confidential” and shielded from disclosure under Exemption 4, that disclosure must cause “substantial competitive harm.” But in 2019, the Supreme Court struck down this decades-old standard, and did not erect a firm rule in its place. As a result, some agencies quickly began to redact and withhold significantly more information under this exemption, and the exemption may now be so wide it could include lobbying and influence-seeking communications of public import, rather than the type of proprietary, commercial information it was intended to protect. Congress should amend FOIA to clearly reinstate the “substantial competitive harm” standard for withholding information under Exemption 4. This reform already has bipartisan support in the Senate.

5. Systematic Preservation and Searches of Text Messages and Other Fleeting Communications Systems

Recent years have provided clear indications that agency officials, including very senior officials, are using text messages and similar communication applications as a substitute for email. In response to FOIA requests, American Oversight has received emails that reference related text messages — text messages that were not produced. In other cases, agencies have released text messages that show the type of formal communication that would be expected over email, sometimes with attached documents. Some agencies have responded that they are unable to search texts because they do not have access to the relevant device or because the relevant custodians have left the agency. 

Most agencies do not have efficient or systematic methods of preserving or searching these records. Some officials may even be taking these steps in order to avoid creating records readily identified in response to FOIA or congressional requests. Congress should, at least for the records of senior officials, require agencies to create and maintain electronically searchable systems for uploading and preserving text messages and similar records on applications such as Signal, Slack, WhatsApp, Lync, or other text or instant-message platforms, so that these forms of communication cannot be used as a loophole to avoid transparency.

6. Ensure Responsive Records Are Preserved

As it currently stands, FOIA itself does not create a clear, independent obligation for an agency to preserve the records potentially responsive to requests it receives. The Federal Records Act is a distinct statutory scheme that requires agencies to create plans to preserve specific types of records, but not all agency records that might be responsive to FOIA requests have to be preserved under the FRA. And in practice, it is very difficult for a FOIA requester to sue an agency to rectify an FRA violation.  

Congress should amend FOIA to require agencies to take reasonable steps to ensure such records are preserved until a response is issued, such as by suspending the deletion of such records and sending preservation notices to easily identifiable custodians of the records. Some agencies (such as the State Department) already take such steps, demonstrating that these requirements are feasible and not overly burdensome. 

7. Subject Government Contractors’ Records to FOIA When They Carry Out Important Public Functions

The records of government contractors carrying out public functions are generally not considered agency records subject to FOIA. This creates a harmful lack of transparency on certain vital matters, particularly by preventing the disclosure of records from privately run immigration detention centers. The companies that run detention centers have enormous power over their detainees and have, in recent years, been consistently accused of abuse and inhumane conditions. Numerous individuals have died in these companies’ custody, but their records are still shielded from public scrutiny. Congress should ensure that the records of these detention centers, and other similarly empowered contractors, are subject to release under FOIA.

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THIS YEAR MARKS THE 55th ANNIVERSARY of President Lyndon Johnson signing the Freedom of Information Act into law, a watershed moment in the American people’s ability to know about the actions of their government and to hold their leaders accountable. With these reforms, FOIA can be an even stronger protection against government abuses and a brighter beacon of transparency.