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Freedom of Information Beyond the Freedom of Information Act

62 Pages Posted: 1 Feb 2017 Last revised: 24 Apr 2017

David Pozen

Columbia Law School

Abstract

The U.S. Freedom of Information Act (FOIA) allows any person to request any agency record for any reason. This model has been copied worldwide and celebrated as a structural necessity in a real democracy. Yet in practice, this Article argues, FOIA embodies a distinctively “reactionary” form of transparency. FOIA is reactionary in a straightforward, procedural sense in that disclosure responds to ad hoc demands for information. Partly because of this very feature, FOIA can also be seen as reactionary in a more substantive, political sense insofar as it saps regulatory capacity; distributes government goods in an inegalitarian fashion; and contributes to a culture of adversarialism and derision surrounding the domestic policy bureaucracy while insulating the far more secretive national security agencies, as well as corporations, from similar scrutiny. If this Article’s core claims are correct to any significant degree, then open government advocates in general, and progressives in particular, ought to rethink their relationship to this landmark law.

Keywords: Information Law and Policy, Open Government, Open Data, Transparency, Secrecy, Accountability, Administrative Law and Politics, Investigative Journalism, National Security, Congressional Oversight, Private Enforcement, Due Process, Liberalism of Fear

Suggested Citation

Pozen, David, Freedom of Information Beyond the Freedom of Information Act. University of Pennsylvania Law Review, Vol. 165, pp. 1097-1158, 2017. Available at SSRN: https://ssrn.com/abstract=2907719

David Pozen (Contact Author)

Columbia Law School ( email )

435 West 116th Street
New York, NY 10025
United States

HOME PAGE: http://web.law.columbia.edu/faculty/david-pozen

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