The Freedom of Information Act needs to be modernized

In the past few weeks, the explosive contents of an email sent by former chief medical adviser and COVID guru Anthony Fauci, discussing the possible origins of COVID-19, have come to light. That email was part of a Freedom of Information Act (FOIA) response from the Centers for Disease Control and Prevention (CDC). Like many of the documents in the response, the CDC had completely redacted the email. The redaction rendered the response virtually useless despite it clearly being in the public interest. Only the action of the House Oversite Select Subcommittee on the Coronavirus Pandemic brought the contents of the email to light. It leaves one to wonder, is FOIA living up to its intended purpose?

That purpose is a direct reflection of the three most important words in the U.S. Constitution: “We the people.” With these three words, our nation’s founders established the relationship between the people of the United States and their government. The government takes its orders and directions from the people, not the other way around.

To exercise oversight and ultimately control over their government, the people must know what their government is doing. They must have access to what their officials are saying. This is why the Freedom of Information Act was created. When then-President Lyndon Johnson signed the first version of FOIA, he stated, “A democracy works best when the people have all the information that the security of the Nation permits.”

FOIA has done a lot of good, but, as the Fauci email shows, it has never fully lived up to its lofty ideal. Government agencies have always dragged their feet in responding to records requests. There have always been concerns that government agencies will, without merit, manipulate exemptions under the law to hide embarrassing information from the public.

FOIA has been amended numerous times to address, among other things:

  • delays in responding;
  • giving FOIA requesters the ability to go to court for noncompliance;
  • making FOIA requests agency priorities, including adding consequences for noncompliance;
  • preventing agencies from imposing abusive fees upon requestors;
  • narrowing the use of so-called “exemptions,” which allow agencies to withhold certain records and information;
  • addressing the rise of electronic documents; and
  • other efforts to improve efficiency.

Some of these goals were addressed by Congress more than once. Despite these reforms, concerns persist.

By law, agencies are supposed to respond to FOIA requests within 20 days. Yet the average time for “simple” requests was nearly 41 days in 2022. More complex responses take even longer, with some responses dragging on for years. In one case, the Food and Drug Administration proposed to take 75 years to produce information!

The reforms listed above included consequences for agencies and for officials who act arbitrarily. But nearly from day one, these consequences effectively have been dead letters. Sanctions for unjustifiable responses to FOIA requests are virtually never applied.

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