Inside FOIA, Inc.

126 The Yale Law Journal Forum 265 (2016)

U Denver Legal Studies Research Paper No. 17-08

9 Pages Posted: 6 Apr 2017

See all articles by Margaret B. Kwoka

Margaret B. Kwoka

University of Denver Sturm College of Law

Date Written: April 4, 2017


Commercial use of FOIA has, by all accounts, always been significant. As I documented in previous work, FOIA, Inc., businesses use FOIA for a variety of purposes and, at some agencies, can form the vast majority of requesters. One thing is constant across business use of FOIA, however, and that is the routine nature of commercial FOIA requests. Over and over again, commercial requesters seek the same kinds of documents, whether it be bid abstracts for defense contracts or licensing agreements filed by public corporations. I therefore proposed an aggressive affirmative disclosure regime in which agencies would identify the types of records routinely requested and publish comprehensive databases of those documents, thereby preempting the flood of commercial requesting.

For large regulatory agencies to whom single businesses submit hundreds and sometimes thousands of requests a year, however, my previous findings came as no surprise. FOIA officers at these agencies see their offices swamped with routine commercial requests and have adapted to become experts in responding to them. This essay explores the practicality of the affirmative disclosure methods I previously proposed from their perspective. In particular, using EPA, SEC, and FDA as case studies, it sheds light on actual agency experience implementing and considering these sorts of measures, including notable success stories. Beyond demonstrating that affirmative disclosure can be practical in some circumstances, however, it sheds light on obstacles agencies face as well. To that end, it seeks out outline circumstances in which affirmative disclosure is most immediately promising, as well as structural reforms that can reduce the barriers to success in a wider range of circumstances.

Suggested Citation

Kwoka, Margaret B., Inside FOIA, Inc. (April 4, 2017). 126 The Yale Law Journal Forum 265 (2016), U Denver Legal Studies Research Paper No. 17-08, Available at SSRN:

Margaret B. Kwoka (Contact Author)

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States


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