Fast Fixes for FOIA

Abstract

The Freedom of Information Act (FOIA) has been hindered throughout its history by delays in processing requests, questionable denials of information, and a dominance of commercial requests. Using an economic approach, this Article argues that cost asymmetries drive these difficulties: agencies incur high costs compared to requesters at the processing stage, whereas the opposite occurs at the judicial review stage. To mitigate these asymmetries, this Article proposes three relatively simple changes that would markedly improve the Act’s implementation: allowing agencies to retain processing fees, increasing these fees, especially for commercial and expedited requests, and strengthening FOIA’s attorney fee-shifting provisions. This Article contends that these “fast fixes” for FOIA would more effectively strengthen government transparency than the significantly more complex legislation that Congress has recently considered.

Note: This is a pre-publication version of the article. Per copyright agreement, the published version, which will have different text, will not appear here.

Keywords: Freedom of Information Act, cost asymmetries, processing fees, attorney fee-shifting