FOIA Requests Surge as Attorney General Set to Release Updated Guidance
Launched by the News Leaders Association in 2005 to honor transparency and good governance, Sunshine Week encourages citizens to make their representatives and government accountable. FEDmanager, like many publications nationwide, honor the occasion by reporting on government activities disclosed in the public record, calling attention to various transparency-related measures, and highlighting violations of accountability.
In line with Sunshine Week, recent actions taken by a congressional coalitions and civil society place an added emphasis on the Freedom of Information Act (FOIA).
A bipartisan group of lawmakers has called on Attorney General Merrick Garland to urge federal agencies to emphasize transparency and openness in handling FOIA requests. The letter was sparked by reports showing an increase in FOIA request denials. The letter also urges the Justice Department to acknowledge and address the need for guidance on posting public-records as the Biden Administration has yet to publish guidance to agencies on federal public-record laws.
Reps. Carolyn Maloney (D-NY) and James Comer (R-KY), Chair and Ranking Member of the House Committee on Oversight and Reform; Senators Dick Durbin (D-IL) and Chuck Grassley (R-IA), Chair and Ranking Member of the Senate Committee on the Judiciary; Senator Patrick Leahy (D-VT), Chair of the Judiciary's Subcommittee on Intellectual Property; and Senator John Cornyn, Ranking Member of the Judiciary's Subcommittee on Immigration, Citizenship, and Border Safety, sent the letter
Federal agencies are generally prohibited from withholding public records under FOIA, yet there may be exemptions that allow documents or parts of documents to be withheld.
The Government Accountability Office (GAO) found that agencies used statutory exemptions more frequently from 2012 to 2019. The GAO's report documented the number of requests denied under FOIA increased by 10 percent, and the number of requests denied partially increased by 76 percent. Similarly, the GAO revealed that in the first year after the pandemic, agencies processed 12 percent fewer requests and FOIA backlogs increased by 97 percent from 2012 to 2020. GAO expected the backlog to increase further.
“Congress enacted FOIA so the American people could better understand the decisions being made by their government. FOIA requires that agencies respond to requests for information with a presumption of openness and without unnecessary withholdings, redactions, or delays,” wrote the congressional coalition, “A clear message from you that transparency is a priority would encourage agencies to fully comply with the law.”
Historically, AGs have issued FOIA standards in the first year of a new administration; however, AG Garland has yet to implement any guidance that he committed to during his confirmation hearings.
Non-profit organizations that advocate a transparent and accountable government also asked the AG to oversee FOIA requests. The American Civil Liberties Union (ACLU), Demand Progress Education Fund, Human Rights Watch, and Project On Government Oversight (POGO), among others, urged updated guidance on interpreting the FOIA, and encouraged support of legislative reforms.
“Our hope was that the DOJ would address the government’s troubling tendency toward less disclosure and the increasing challenges requesters are facing during the FOIA process,” the organizations stated, “Unfortunately, the DOJ has historically been an obstacle to reform efforts and often resists the release of records in courts. We urge you to take up this historic opportunity to realign the Department’s approach to the FOIA, beginning with implementing a generous reading of the statute.”
There is no indication yet whether the Justice Department has responded to the congressional coalition or non-profit organizations, though a response was requested by March 6. In her Sunshine Week remarks, however, Associate Attorney General Vanita Gupta revealed that the AG will release new guidelines underlining the Justice Department's commitment to administer the FOIA later this week.
