127 Yale Law Journal, 2018, Forthcoming
62 Pages Posted: 8 Sep 2017
Date Written: September 6, 2017
The Freedom of Information Act (FOIA) embodies a radical notion. By allowing any person to request any records for any reason, it was meant to open up government for all to see. Investigative journalists, watchdog groups, and concerned citizens would all jump at the chance to hold officials accountable and unearth secretive government actions. The numbers would seem to support a FOIA success story: after all, the government now consistently receives over 700,000 FOIA requests a year.
As it turns out, however, it is not journalists and nonprofits making hundreds of thousands of requests. In my previous article, FOIA, Inc., I documented how commercial requesters have dominated the FOIA landscape at some agencies, particularly large regulatory agencies, and how, in doing so, they have transformed FOIA into a sort of business subsidy to the potential detriment of those making requests to promote government oversight.
This Article reveals the experience at another group of agencies, particularly those focused on law enforcement and benefits provision. At these agencies, FOIA requests are dominated by individuals seeking records about themselves—their own medical files, their own immigration records, or their own investigation files, for example. In fact, these requesters—whom I call first-person FOIA requesters—are likely to vastly outnumber commercial requesters. At the Department of Homeland Security alone, more than 200,000 such requests are filed each year. Using original datasets and interviews with requesters, this article documents the extent and nature of first-person FOIA requesting at seven federal agencies. It also demonstrates how these requests may serve vital private interests of the requester, but largely do not serve the public’s interest in knowing what its government is up to.
Not only do these accounts suggest that FOIA may be suffering under the weight of unintended uses, but also reveal how first-person requesters are often ill-served by being forced to use FOIA simply because no good alternative exists. Moreover, it reveals how agencies themselves may be duplicating their work and hindering their own objectives by requiring first-person information needs to be met through FOIA. Important conclusions follow from these insights. Agencies should seek strategies—some of which are suggested here—to meet first-person information needs head on by designing sensible processes for obtaining commonly needed personal information. Alleviating the need to resort to FOIA would provide benefits that inure to the individuals, the agency, and the public’s interest in transparency.
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