Law Lags Behind: FOIA and Affirmative Disclosure of Information

Abstract:     
This brief article describes and comments on the way in which FOIA has become more peripheral than it once was and than it should be. After describing the features that make FOIA a potent mechanism for disclosure and those that limit its effectiveness, the article considers FOIA’s fundamental limitation: its failure to impose affirmative responsibilities on agencies. In particular, it does not require agencies to generate information, and, what is the focus of this article, it imposes only minimal (and frequently disregarded) obligations to disseminate information without being asked. Recent years have seen a modest shift away from the pure request-driven model, and the early months of the Obama administration promised greater movement in that direction. These shifts have been driven more by technological and societal changes than by law; FOIA itself remains tied to the traditional and increasingly anachronistic model. A reinvented FOIA might involve agencies that generate, interpret, and disseminate information for the public benefit; the government would be a sort of non-profit publishing house. We are far from such a world, and it would not be an unmitigated blessing. But we should be moving more in that direction.

Number of Pages in PDF File: 25

Keywords: FOIA, disclosure, information age, e-government act, reading rooms, transparency, A-130, EFOIA, Open Government Act

Accepted Paper Series