The Future of Freedom of Information in the United States

By autumn 2012, the U.S. Freedom of Information Act regime had been operating under the Obama administration's January 2009 'Memorandum on the Freedom of Information Act' — the day-one Presidential commitment to a presumption of disclosure — for almost four years, and the gap between the policy framing and the implementation reality had become measurable. The annual Department of Justice / National Archives FOIA report data showed agency backlogs growing in absolute terms across most departments, with State, DHS, and DoD posting some of the largest backlog numbers.

FOIA-reform proposals on Capitol Hill in 2012–2013 — the bills that eventually consolidated into the FOIA Improvement Act of 2016 — were trying to address several recurrent problems: the proliferation of (b)(5) deliberative-process exemption use, the lack of an independent appeals mechanism short of federal-court litigation, the absence of statutory deadlines for fee-waiver determinations, and the structural underfunding of agency FOIA-processing operations. Each was the subject of ongoing reporting by the Reporters Committee, the National Security Archive, the Sunlight Foundation, and the FOIA-litigation bar.

The eventual 2016 FOIA Improvement Act addressed several of the issues raised in this 2012 conversation — particularly the (b)(5) 25-year sunset and the codification of the presumption-of-openness language. Other issues raised in the 2012 piece — the underfunding question, the appeals-process question — remain unresolved through the most recent FOIA-reform conversations.