In the popular imagination, a right to information is foundational. Democracy depends on an informed electorate, and the press, as a representative of and an intermediary for the public, should be able to access the information it needs to tell the rest of us what our “[g]overnment is up to.”Footnote ¹ Yet a right of the public or the press to access government information is not enshrined in our Constitution. While the U.S. Supreme Court has interpreted the First Amendment to guarantee some limited access to judicial proceedings, it has never expanded this right to include federal agency records.Footnote ² For two hundred years of our nation’s history, in fact, nothing did.

That all changed in 1966 when Congress enacted the Freedom of Information Act (FOIA), which is now the signature government transparency law in the United States.Footnote ³ The press, specifically, was at the forefront of the decade-long advocacy struggle that led to the passage of FOIA. Journalists and their associations provided Congress with significant input during the drafting of the legislation.Footnote ⁴ In congressional hearings, moreover, elected representatives repeatedly articulated their vision that the press would vigorously use FOIA to the benefit of the public.Footnote ⁵ Still, Congress has never limited the use of the law to the press; indeed, FOIA provides that any person may request any agency record for any reason. The government must respond within twenty business days and provide the record unless it falls within one of nine enumerated exemptions.Footnote ⁶

Today, the federal government receives nearly a million FOIA requests a year.Footnote ⁷ Many celebrate this level of engagement as a sign of the law’s success. Yet the story looks different if we focus on the first-order FOIA users, namely the press (alongside watchdog groups, nonprofits, and community organizations), who are using the law to inform the broader public. When asked about FOIA’s implementation, journalists, who now make less than 3 percent of all federal government-wide requests, may cite instances of success but generally give the law’s implementation a failing grade.Footnote ⁸

What, then, are the law’s problems from the perspective of the press? Journalist FOIA requesters (or would-be requesters) typically encounter two sets of problems: first, extreme agency delay in responding to requests and, second, the practical inability of most reporters to obtain recourse when the agency wrongly denies their requests.Footnote ⁹ These problems are both long-standing and well known, and Congress has tried to address them through amendments to the law that have, for example, created new carrots and sticks for agencies to meet deadlines or established mediation services for requesters who are dissatisfied with the agency response.Footnote ¹⁰ Yet if these incremental reforms have made a difference, it is only at the margin.

In this chapter, I will lay out a case for structural, not incremental, reforms that have the potential to “return” FOIA to the press. That is to say, Congress could structurally reshape FOIA to better serve its first-order users, the news media, for the benefit of the public. To be clear, I would never advocate limiting FOIA rights to the press or other oversight requesters. But if FOIA isn’t working for those requesters, then it is not doing the government transparency work we want it to do. Moreover, if it’s not working for the press, then it’s probably also not working well for others who are seeking government-held information.

16.1 Rethinking Information Delivery

Any conversation about journalists’ use of FOIA must start with a conversation about delay. Delay is one of the most intractable problems in FOIA administration. Even for those requests designated as being on the “simple” rather than the “complex” track, government-wide average processing times in the last reported year were more than twice the statutory deadline, and some agencies’ averages far exceeded that.Footnote ¹¹ A congressional report titled “FOIA is Broken” documented, among other problems, that “[m]any agency FOIA offices have abandoned the statutory requirement to make a determination within 20 working days.”Footnote ¹² A recent Government Accountability Office (GAO) report described backlogged requests as “a perennial problem for many federal agencies,” noting that in fiscal year 2022 the government-wide backlog of requests had reached more than 200,000.Footnote ¹³

Delay is also the news media’s biggest complaint and the reason journalists most often cite for not using the law more frequently. For example, ProPublica, an outlet that does use FOIA to great effect on a regular basis, nonetheless reports that delays “now routinely last longer than most journalists can wait – or so long that the information requested is no longer useful.”Footnote ¹⁴ In a series of interviews that I conducted with journalists, reporters uniformly cited delay as a top concern in using FOIA.Footnote ¹⁵

There is no doubt a variety of factors that contribute to delay. Agencies often cite resource constraints as a key factor, and there are many structural reasons why agencies are likely to have underfunded FOIA offices.Footnote ¹⁶ And, to be sure, there may be some level of agency recalcitrance in fulfilling particularly hot button requests.Footnote ¹⁷ But Congress’s recent attempts to address delay have missed the mark; reforms have adjusted fee structures, reporting requirements, and other incentives,Footnote ¹⁸ implying that recalcitrance is the primary reason for delay and that if we simply punish late responses or reward timely ones, agencies’ performance will improve.

Yet my research suggests there is another, much greater contributing factor that cannot be overlooked: the volume of non-oversight requesters. In the most comprehensive empirical account ever compiled, detailed in my book, Saving the Freedom of Information Act, I documented that the vast majority of requesters are not using FOIA for public oversight purposes but rather to advance private interests.Footnote ¹⁹ To be sure, these private interests are sometimes very compelling, and using FOIA for such purposes is neither illegitimate nor unlawful. Still, my look inside various FOIA offices revealed that FOIA processing is largely designed for and caters to whatever kind of request is dominating FOIA practice at a given agency. That is to say, agencies are essentially specializing in serving non-oversight requesters simply because they make up the vast majority of requesters.

To begin, some agencies, particularly law enforcement and benefits agencies, are inundated by first-person requests, or requests made by individuals who are seeking information or files about themselves. Take, for example, the Department of Homeland Security (DHS), which now receives more than half of the federal government’s total requests every year, outpacing every other agency by an order of magnitude and clocking in at more than 500,000 requests.Footnote ²⁰ Nearly all – more than 95 percent – of the requests DHS receives consist of noncitizens’ first-person requests for their own immigration records, typically because they are needed in conjunction with either a pending or threatened deportation case or an application for a new visa or for citizenship.Footnote ²¹ Similarly, at the Federal Bureau of Prisons (FBOP), more than half of all requests are first-person in nature, with most individuals in this category requesting their own medical records.Footnote ²² Many other agencies also experience high volumes of first-person requests, making first-person requests the most frequent type of FOIA request government wide.Footnote ²³

Agencies that receive high volumes of first-person requests have processes that specialize in serving those requesters. One top official explained that the DHS is, in his words, “trying to build a system that speaks to ninety percent of the requests that we get” and that the agency is “trying to drive down the response time for routine requests as far as possible.”Footnote ²⁴ At the Bureau of Prisons, a top FOIA official in charge of agency FOIA policy echoed this sentiment: “I put a lot of emphasis in processing simple requests quickly because it is one of the few things we have a lot of control [over] with our metrics.”Footnote ²⁵ This strategy is oftentimes very visible. At U.S. Citizenship and Immigration Services (USCIS) – the component agency of the DHS that receives the highest volume of requests – certain personnel do nothing but process noncitizens’ requests for immigration files. Those individuals, who make up the vast majority of the agency’s 250 or so FOIA processors, aren’t even trained or qualified to answer any other types of requests, such as ones from reporters.Footnote ²⁶

Designing FOIA operations to best serve the largest FOIA constituency at a given agency is an entirely rational strategy. Agencies’ FOIA performances are judged by the metrics they have to report, such as aggregate statistics on the number of requests received and processed, average processing times, and types of responses.Footnote ²⁷ The best way to improve performance is naturally to focus on the bulk of routine and predictable requests, not on the comparatively tiny fraction of requests from journalists, which are often more topical and unique.

This phenomenon is not limited to agencies with high volumes of first-person requests. At other agencies, typically large regulatory agencies like the Securities and Exchange Commission (SEC), the Environmental Protection Agency (EPA), or the Food and Drug Administration (FDA), FOIA offices spend the vast majority of their time processing requests from commercial requesters seeking routine, discrete records such as inspection reports, financial filings, or government contract information.Footnote ²⁸ To compound this dynamic, at many of these agencies with high-volume commercial requesting, a significant subset of those commercial requesters are businesses I classify as information resellers, which are businesses that request a high volume of records from the federal government and resell them, at a considerable profit, to private parties.Footnote ²⁹ FOIA offices with these kinds of commercial requesters may have impressive performance statistics, particularly regarding the speed of their responses, but only because each request requires looking up a single record.Footnote ³⁰ When those comprise 75, 85, or 95 percent of the requests received, agencies have little incentive to do anything but prioritize these requests and hire and train processors who specialize in addressing them.

In short, the sheer volume of non-oversight requesters necessarily affects journalists’ and watchdog groups’ requests in a negative way. These requesters not only create huge numbers of FOIA requests that strain agency resources but also distort the priorities of agency FOIA offices to incentivize catering to these much more frequent uses. As a consequence, the agencies lose, or fail to attain, the knowledge and skills necessary to serve the news media. That is to say, journalists’ requests are likely to face worse outcomes in FOIA processing simply because they do not fit neatly into the process the agency has designed for more routine and predictable information requests.

The unfortunate reality, though, is that FOIA serves these other interests poorly, too. In the cases of individuals with a pending law enforcement proceeding or benefits application, FOIA may not provide the records they need in time to help them in their underlying case.Footnote ³¹ For businesses that want a database of all facilities inspection reports, building such a repository by requesting those records one at a time through individualized letter writing is highly inefficient.Footnote ³² These requesters are only turning to FOIA because there is no better alternative.

To return FOIA to the press, Congress could and should mandate that agencies consider alternative information delivery mechanisms for sets of records routinely needed by the public. While no one should be denied the option to avail themselves of FOIA, they wouldn’t have to rely on FOIA if they had better alternatives, such as public access databases with affirmatively available records or individual portals for personal information or discovery in administrative proceedings. Examining the constituencies currently served by FOIA reveals the possibilities of serving those constituencies better outside of the FOIA system, saving FOIA for the first-order uses imagined.

16.2 Rethinking Oversight

The second big structural problem for journalists seeking public information is that agencies’ FOIA violations are relatively insulated from independent review or practical consequence. Put differently, the right to file a federal lawsuit to challenge agency denials under the Act is simply inadequate as an oversight mechanism.

When FOIA was originally enacted in 1966, Congress understood the importance of independent oversight of agency decisions to withhold records, and it focused on judicial review as the remedy for that concern. As a result, unlike in other administrative law contexts, Congress provided that courts should review agency decisions to withhold records de novo, without any deference to the agency’s position.Footnote ³³ And when the Supreme Court ruled that federal courts’ powers to review were limited in some areas of national security in EPA v. Mink, Congress legislatively overruled the court and reinstated true de novo review in the statute.Footnote ³⁴ In other words, Congress doubled down on the idea that the best protection against an executive agency’s wrongful decision to withhold records is a full, independent adjudication by the courts.

The idea of de novo judicial review sounds good on paper. But in practice, judicial review has proven woefully inadequate. To begin with, getting into court is quite difficult. Hiring a lawyer is expensive, and litigation is resource-intensive. Most oversight requesters, including reporters and news media organizations, cannot afford legal fights over records. And the changing nature of news media means there are fewer and fewer legacy outlets that would potentially have the kind of resources required to litigate denials on behalf of their reporters. One study by James Hamilton documented that FOIA use generally is declining among smaller local news outlets.Footnote ³⁵

The fact that few reporters can go to court to challenge an agency’s failure to comply with the law is particularly troubling because reporters who have brought FOIA suits have observed the power of independent review. In a series of interviews I conducted with journalists who are using FOIA particularly effectively, many stressed the value of going to court. Science journalist and New York University Professor Charles Seife said that he only started finding FOIA valuable when he found lawyers willing to fight his FOIA cases pro bono, including in a law school clinic.Footnote ³⁶ Independent journalist Seth Freed Wessler was so motivated by the success of litigating some of his requests that he cofounded a nonprofit dedicated to linking freelance reporters with pro bono counsel in FOIA cases.Footnote ³⁷ The New York Times provides another perfect example of the power of litigation. The newsroom’s top lawyer David McCraw told me that he often sues agencies over their long delays simply to force the agency to respond.Footnote ³⁸ Just filing a case can make a difference, even without the court making a decision.

But the truth is, these reporters are outliers. Federal litigation is slow, and it can sometimes take years to reach a conclusion, compounding the problems of delay. And the problem may be getting worse over time. A recent report by the Transactional Records Access Clearinghouse (TRAC) documented that FOIA litigation was facing longer and longer delays with a pending backlog of FOIA cases dragging on for years.Footnote ³⁹

Access to the courts and the length of the litigation process are not the only problems with judicial review. Even those requesters who make it into court and go through the lengthy litigation process find they do not always receive a truly independent federal court decision. Despite the mandate of de novo review, many FOIA scholars, including myself, have documented the various ways in which courts nonetheless defer to agency positions by, for example, invoking a special “substantial weight” standard for reviewing government affidavits in the national security context or by using various procedural shortcuts only in FOIA litigation that advantage the government, such as curtailing discovery.Footnote ⁴⁰

The US experience stands in stark contrast to a plethora of other countries around the world that have successfully implemented independent administrative oversight frameworks rather than relying on judicial review.Footnote ⁴¹ These bodies are typically styled as information commissions, and some of them have been operating for decades.Footnote ⁴²

For example, Mexico’s information commission, known as INAI for its initials in Spanish, is one of the world’s most celebrated among such institutions.Footnote ⁴³ During a nine-month research stay in Mexico on a Fulbright grant, I studied INAI and its role in Mexico’s transparency system.Footnote ⁴⁴ I concluded that five pillars of its work are central to its success.Footnote ⁴⁵ First, it operates a National Transparency Platform, a one-stop portal for requesters to submit, track, and appeal requests, along with a repository of previously released information and all records required to be made proactively available by government entities.Footnote ⁴⁶ This platform also facilitates all back-end work by government bodies and INAI. Second, it operates as an adjudication machine, deciding some 20,000 cases a year very quickly and ruling for the requester more than three-quarters of the time.Footnote ⁴⁷ Third, it engages in affirmative monitoring of compliance by following the enforcement of its own orders, sampling responses to unappealed requests to review, and auditing compliance with affirmative disclosure obligations.Footnote ⁴⁸ Fourth, it engages in concerted outreach and education, inside and outside of government, promoting a culture of understanding the fundamental human right to information as being inextricably linked with the exercise of other basic rights.Footnote ⁴⁹ And finally, the leadership body – the seven members of the commission itself – sets a tone and an expectation around transparency that touches everything the institution does.Footnote ⁵⁰ This well-funded institution is staffed with 800 employees and has separate state counterparts in every state in the country.Footnote ⁵¹

My interviews with journalists who interact with INAI demonstrate the potential of an information commission to return transparency laws to the press. Uniformly, the reporters I spoke with praised INAI, despite occasional qualifications. One reporter summarized it this way: “I do think it’s a very strong tool that we have as citizens, and as journalists, and academics. And I think it mostly works … I feel it is super important to have INAI.”Footnote ⁵² Another said: “I think the fact that there’s a centralized institution through which you can submit all requests is amazing.”Footnote ⁵³ When I asked one journalist if she was satisfied with INAI, she said, “[T]he truth is, despite everything, yes, I am satisfied. You can’t deny that it works well … if you see journalism in Mexico in the last 10 years, the key [to success] has been the transparency system.”Footnote ⁵⁴

A couple of journalists I talked to had experiences making information requests in both the United States and Mexico. They highlighted some important differences. For example, they saw the simplicity of the process in Mexico as a huge advantage, both in making requests and in appealing decisions. One reporter said, “I’m surprised to see [that] other people’s requests [are] often just a sentence that describes what they’re asking for without reference to law or anything, and sometimes that sentence will be a little bit hard to interpret, or a little bit … maybe they’re using informal language, and then I’ll look at the response and it will be like a very good response … Whereas in the United States, I feel like it would be an automatic denial.”Footnote ⁵⁵ Another journalist, who makes similar requests in Guatemala, Mexico, and the United States, ranked Mexico as the best of the three by far.Footnote ⁵⁶

Journalists routinely use INAI’s appeal process. One journalist said he appeals nearly every time he doesn’t receive everything he wanted, and he estimated that he wins the appeal 90 percent of the time.Footnote ⁵⁷ Another similarly reported appealing essentially every unsatisfactory response but estimated a lower success rate, around half of the time.Footnote ⁵⁸ Still, there was broad agreement that the process was both fast and easy to engage with.Footnote ⁵⁹

The news media also praised INAI’s role in facilitating proactive transparency, or acting as an archive or document repository. One journalist described her process of searching through past requests and responses to find information she needed for stories. She downloads databases of all past requests to a certain body for a certain period of time, then looks through them for key terms, and studies the data that was already released or uses that data to formulate her own, better-informed request.Footnote ⁶⁰ Another journalist also cited the National Transparency Platform as crucial, particularly in ensuring that proactive disclosures are available from state and local institutions.Footnote ⁶¹

To be sure, journalists lodged complaints about some of INAI’s failures. One cited his perception that INAI does not sufficiently weigh public interest in disclosure as allowed by the law.Footnote ⁶² More than one noted that even once they won an appeal at INAI, sometimes the responding government entity did not comply with INAI’s order.Footnote ⁶³ One journalist had even brought a lawsuit to challenge an order determining that compliance was achieved.Footnote ⁶⁴ Another asserted that, despite the ease of the process, it still advantaged sophisticated requesters and represented parties.Footnote ⁶⁵ Still, the overwhelmingly positive assessment of INAI and the repeated drumbeat of its indispensability in newsgathering were heartening themes of my interviews.

Unfortunately, INAI eventually became a victim of its own success. After public spats with the commission, former Mexican President Andrés Manuel López Obrador engaged a years-long campaign against INAI, culminating in recent constitutional reforms led by President Claudia Sheinbaum that will eliminate the commission entirely.Footnote ⁶⁶ While citing costs and inefficiencies as the impetus for reform, López Obrador and his successor took aim only after INAI acted as a meaningful check on government power, demonstrating, perhaps, the very power of the model itself.

One way to think about an information commission like INAI is that it acts as a public support or even a public subsidy to ensure that high-quality journalism continues. Subsidies or public funding for the news media, particularly local journalism, have been considered by policymakers, academics, and advocates.Footnote ⁶⁷ The investment in maintaining public information, in facilitating broad access to requests and to appeals, and in monitoring compliance with transparency laws government wide is a way to support journalism without direct monetary grants or other direct forms of subsidy. It is, in short, a way to return public records requests to the press.

In the United States, many of us hoped that the Office of Government Information Services (OGIS), which Congress created as part of the 2007 amendments to FOIA, would serve this sort of role.Footnote ⁶⁸ Unfortunately, despite some strengthening of that institution over time, it has never been given the resources or power necessary to fulfill the kind of role I envision. To begin, it does not have the power to issue binding orders but, rather, was designed to make policy recommendations and offer mediation services to resolve disputes between requesters and agencies. But recommendations are not orders, and at the end of the day, OGIS has no power to compel agencies to comply with the law. Moreover, OGIS is decidedly not an independent body. It is housed in the National Archives, itself an executive branch agency, and has already been beholden to some administration politics during its short life. Finally, it operates on a shoestring budget and with a tiny staff, woefully insufficient for the kind of demand we would expect for the services of a full-fledged information commission.

We should consider the formation of an information commission to administer and enforce FOIA obligations in the United States. I have previously described how such a body is possible within our current legal constraints and traditions and how it could be designed to withstand political pressure and facilitate access to information for the press and beyond.Footnote ⁶⁹

The time to return FOIA to the press is now. We are seeing the dangers of unchecked executive power around the world.Footnote ⁷⁰ Scholars, policymakers, and advocates are increasingly focused on questions of democratic and constitutional renewal. While FOIA is a statutory right, it has rightly been described as quasi-constitutional or foundational. Accordingly, the reforms needed to return FOIA to the press are not small ones: They, too, are foundational.