FOIA's Common Law

Abstract

This paper proposes a new framework for viewing the modern jurisprudence surrounding FOIA, which facilitates a overwhelming government win rate in spite of strong statutory provisions pointing otherwise. Specifically, it argues that FOIA’s modern state is the product of pre-FOIA discovery and administrative law doctrines, which were ported to FOIA over FOIA’s strictures via administrative common law methodology. The upshot of this novel descriptive framework is a more supported baseline for critiquing modern judicial applications of FOIA and a proper lens for assessing proposals for reform.

Keywords: FOIA, FOIA's Common Law, Freedom of Information Act, Administrative Common Law, Administrative Law, Statutory Interpretation, Transparency

JEL Classification: K00, K10, K19, K23, K30, K39