Washington, D.C. – Today, America First Legal (AFL) Vice President Dan Epstein is testifying before the Senate Judiciary Committee regarding “The Freedom of Information Act: Perspectives from Public Requesters.”
In his testimony, Dr. Epstein will discuss critical reforms necessary to modernize the Freedom of Information Act (FOIA), address systemic delays, and reduce litigation costs. He will also provide a framework for congressional action to prevent bureaucratic obstruction and increase transparency and accountability across the federal government.
Watch the hearing live here at 10:15 a.m. ET.
Read the written testimony here.
Remarks as prepared for delivery are below:
Dear Chairman, Ranking Member, and Members of the Committee,
Thank you for the opportunity to testify today on the Freedom of Information Act. The FOIA statute is an amendment to the original public records provisions of the Administrative Procedure Act. As such, it is part of a series of checks to the growing federal bureaucracy.
As the Supreme Court has explained, “[t]he basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.”
Transparency advocates often quote Justice Brandeis’s dictum that “Sunlight is said to be the best disinfectant.” But less quoted is Brandeis’s statement “electric light the most efficient policeman.” In our cloud and AI-based world of public information, modernized government should mean modernized transparency.
I will focus my testimony on three critical areas where reform is needed: (1) the proactive disclosure requirements of FOIA, (2) pattern or practice claim review, and (3) the effectiveness of the administrative process and reducing litigation costs.
- Proactive Disclosure
Proactive disclosure under the Freedom of Information Act (FOIA) obligates agencies to publicize information notwithstanding the existence of a particular request or when certain records are frequently requested. As mentioned, FOIA originated from the APA, particularly its provisions now codified at 5 U.S.C. § 552(a)(1)(A)-(E). Many practitioners think that public disclosure of, e.g., “statements of general policy or interpretations of general applicability formulated and adopted by the agency” requires a FOIA request to be made; but the context of these mandatory disclosures — the Administrative Procedure Act — informs their sui generis nature from the rest of the statute. FOIA’s judicial review provisions are unique to agency failures to produce records in response to requests; there should be no reason to think that language originally reviewable under the APA is no longer reviewable under that statute.
There are solutions to these problems. Issued in 2019, Executive Order 13892 used this legal interpretation as a basis for mandating public disclosure of a whole host of agency decisions. It was rescinded on January 20, 2021, but would strongly serve the public interest if codified by Congress. Agencies generally comply with proactive disclosure requirements, including using searchable electronic reading rooms to post frequently requested records. But even greater transparency could be achieved by using technology to allow requesters to search for specific keywords within a set of documents as relevant documents may be in the thousands, if not hundreds of thousands, of pages. While I am not a technology expert, it is imaginable that agencies create APIs that allow the FOIA community to input data and run it through AI document software to make key findings.
- Pattern or Practice Claims
A pattern or practice claim under FOIA is established when a plaintiff demonstrates the agency defendant has consistently failed to comply with FOIA’s requirements, typically in the form of chronic delays and backlogs in responding to requests. In order to establish the claim, a plaintiff must show that the agency’s violations are not isolated incidents but part of a broader, ongoing agency policy or practice that impairs the plaintiff’s lawful access to information.
However, pattern or practice claims alleging systematic delays or denials are difficult to win. Violations of statutory deadlines can inform a pattern or practice cause of action, but past delays alone are insufficient unless they demonstrate a likelihood of future harm. In a world of increasing backlog with FOIA processing, agencies may strategically delay complex or politically salient requests to avoid political risk with disclosing documents. It is hard to show that such agency delay was the result of an intention to unreasonably delay processing versus a recognition that the FOIA workload takes time to process.
Congress should clarify that when agencies engage in a pattern or practice of withholding documents or delaying processing, they are acting in an arbitrary and capricious manner subject to judicial review. To successfully litigate a pattern or practice case, plaintiffs must provide evidence, through affidavits or examples of similarly situated requesters being denied information access, either of which requires the hiring or employment of lawyers.
In addition to identifying intentional delay as arbitrary and capricious, Congress should also clarify that any such practice is itself the sort of rule of general applicability that must be publicly noticed in the Federal Register. Agency noncompliance with public notice requirements should entail some form of sanction or penalty on the agency.
- Administrative Fixes and Cost
Litigation remains a costly yet frequently necessary tool for FOIA requesters. According to the Department of Justice’s annual FOIA litigation reports, the number of FOIA lawsuits has steadily increased over the past decade, largely due to agency delay or non-responsiveness.
Congress sought to respond to these problems by providing a plaintiff with attorney’s fees whenever the plaintiff “substantially prevail[ed]” in a case. Yet such determinations give courts discretion to determine whether a plaintiff, typically in a summary judgment posture, won enough claims to have substantially prevailed. Due to such uncertainty, small organizations or individuals filing FOIA requests often end their process at the administrative stage.
Thus, for these requesters, the administrative exhaustion process is crucial for their rights to be advanced. Because agencies are allowed to charge fees to requesters before conducting database searches and reproduction of documents, establishing public interest and media representative fee waivers is an important tool for requesters without a litigation budget. Of course, while the courts recognize that fee waiver applications should be liberally construed in favor of noncommercial requesters, such as researchers, journalists, and public interest watchdog groups, such waivers do not guarantee that agencies will conduct thorough searches or provide responsive records, meaning that requesters will still have to go through an administrative appeals process to seek records when withholding has occurred.
Congress should clarify the standard for “substantially prevailing” to mean whenever an agency is judicially compelled to take some action it refused to do during the administrative process.
Concerning the administrative process, Congress has established the Office of Government Information Services (OGIS) at the National Archives. From my experience, OGIS’s resources are limited and taxed, limiting its activities to simply notifying agencies of an issue without robust attempts to mediate disputes. A congressional direction to OGIS to have more teeth in its negotiations with agencies can help avoid litigation and provide remedies to the requester community.
Thank you.
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