Panelists: Reforms needed to fulfill FOIA's promise

Since its enactment in 1966, the Freedom of Information Act has been celebrated as an integral part of American democracy designed to provide public access to nonexempt federal agency records.

But as government agencies struggle to keep up with the huge demand—and growing backlog—of FOIA requests, many legal experts agree the time has come for reform. In a panel discussion called “Making FOIA Work” during the American Bar Association’s recent 2021 Administrative Law Conference, panelists discussed the best options to “fix” problems with the FOIA process.

In 2020, government agencies received just under 800,000 FOIA requests, said moderator Mark Thomson, deputy research director at the Administrative Conference of the United States. At the same time, the backlog for requests grew to 144,000.

Most of those requests – 67% – were immigration-related, involving people searching for their own immigration records in order to apply for citizenship or a new visa, said panelist Margaret Kwoka, a law professor at Ohio State University’s Moritz College of Law who has studied and written extensively on the subject. “The vast majority of requestors are not using FOIA for public oversight purposes, but rather to advance private interests.”

She suggests expanding the use of technology to include user-friendly tools like cloud-based public portals and artificial intelligence, which could drastically reduce the administrative burden on agencies. Panelists also agreed there’s a need for more frequent and robust communication between agencies and requestors. By pinpointing exactly what information is being sought, processing and response times could be greatly reduced, said panelist Bobak Talebian, director of the Office of Information Policy at the Department of Justice. In addition to the increased volume of FOIA requests, Talebian said the requests are becoming more complex. “The request itself might be 10 or 15 pages long, in multiple parts with significant lists of proposed search terms,” requiring time-consuming line-by-line reviews of large numbers of documents.