The Freedom of Information Act (FOIA), a landmark law to increase government accountability, is falling short in its aim to improve transparency with American citizens, according to a recent report from Open the Books. FOIA gives the public the freedom to request government records from federal agencies, with the exception of certain information involving the White House, congressional records, confidential financial information, national security matters, and law enforcement records. In recent years, government-caused inefficiency has increased wait times for FOIA requests, which "have become so long they undercut the accountability FOIA is meant to provide," per Open the Books.
The report finds that across federal agencies last year, FOIA requests labeled as "complex" took an average of 267 days to generate a response, and "simple" requests an average of 39 days for the agency to initially respond, "but 31 agencies still took in excess of 100 days on average." While agencies are required by law to respond to FOIA requests within 20 days, "in practice many require extensions for months or even years, citing big backlogs of records requests."
Two agencies were especially slow. The Commerce Department had an average wait time of 836 days, and the Department of Veterans Affairs had an average wait time of 811 days—or over two years.* And the amount of backlogged FOIA requests is rapidly increasing.
The U.S. Government Accountability Office (GAO) reports that "in FY 2022, the government-wide request backlog surpassed 200,000 requests for the first time." These numbers have more than doubled since FY 2013, when the number of backlogs was a modest 95,564 in comparison.
While understaffing at federal agencies may be partially to blame, Open the Books found cases of government officials deliberately delaying FOIA requests. The group mentions the case of David Morens, an adviser to former Director of the National Institute of Allergy and Infectious Diseases Anthony Fauci, whose emails showed that "he had been evading FOIA requests as a matter of institutional practice." In one email, Morens says he learned "from our FOIA lady here how to make emails disappear after I am FOIA'd but before the search starts…Plus I deleted most of those earlier emails after sending them to gmail."
Open the Books offers potential fixes to FOIA's problems, including updating FOIA's outdated legacy software, removing bureaucrats who slow-walk requests, and instituting staffing quotas. However, these solutions won't fully fix the problems that are inherent with a large and overly bloated administrative state, where huge information backlogs and impossibly redacted information are the norm.
*CORRECTION: This article originally misstated the average length in years that it took the Commerce Department and the Department of Veterans Affairs to respond to a FOIA request.
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