US — FOIA has failed to live up to expectations

“Almost everyone involved with the FOIA — requesters as well as agencies — seems to be dissatisfied with the way the process works. It can be excruciatingly slow, with response times often counted in years. Decisions to withhold information frequently appear arbitrary, excessive or otherwise inappropriate. The system is inequitable, as super-users who file hundreds or thousands of requests (and those who are able and willing to litigate their requests in court) consume disproportionate amounts of government resources, putting more occasional requesters at a disadvantage.”

Steven Aftergood — Secrecy news (May 08 2017)

Professor David E. Pozen

The FOIA process as it currently exists is not simply inadequate, it is positively counterproductive. Follow us on Twitter: @INTEL_TODAY

David E. Pozen of Columbia Law School just wrote a blistering new critique of the FOIA.

“FOIA not only fails to deliver on ostensible goals such as participatory policymaking, equal access to information, and full agency disclosure, but also has evolved to subvert some of these goals as well as other public law values.”

“FOIA systematically skews the production of information toward commercial interests and facilitates powerful antiregulatory agendas. The inadequacies of FOIA’s original design have been exacerbated by external developments, including the decline of the traditional news media and the rise of hyper-adversarial watchdog groups on the right. Our veneration of FOIA has blinded us to the politics of FOIA.”

“The most promising path forward involves displacing FOIA requests as the lynchpin of transparency policy and shoring up alternative strategies, above all affirmative disclosure frameworks that release information in the absence of a request.”

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.

About David Pozen

David Pozen is a Professor of Law at Columbia Law School. He teaches and writes about  constitutional law, national security law, and information law, among other topics.

From 2010 to 2012, Pozen served as special advisor to Harold Hongju Koh, the Department of State’s legal adviser. Previously, Pozen was a law clerk from 2009 to 2010 for Justice John Paul Stevens on the U.S. Supreme Court and, from 2008 to 2009, for Judge Merrick B. Garland on the U.S. Court of Appeals for the District of Columbia Circuit. Pozen served as special assistant to Sen. Edward M. Kennedy on the Senate Judiciary Committee from 2007 to 2008.

While in law school, Pozen was a book reviews editor of the Yale Law Journal and an Olin Fellow in Law, Economics, and Public Policy. He was awarded the Scharps Prize for the best paper by a third-year student; the Townsend Prize for best paper by a second-year student; the Cohen Prize for best paper on a subject related to literature and the law; and the Gherini Prize for best paper on international law or conflict of laws.

In 2013, the Columbia Society of International Law recognized Pozen with its Faculty Honors Award.

Whistleblowers: Dissenters, Advocates, Criminals, or Loyalists?  

The Center on National Security and PEN American Center hosted the third evening forum in a series on the NSA in context. Panelists explored the historical, cultural, legal and political dimensions of whistleblowing, assessing today’s controversy over the NSA and other national-security related whistleblowing cases and the questions they raise about the roles of whistleblowers, government agencies, journalists, editors and media platforms.

Are current whistleblowing protections sufficient? Should whistleblowers be lionized or stigmatized? What will recent high-profile cases mean for future whistleblowers and the journalists and publications who cover their stories?

Julia Angwin is a Pulitzer Prize-winning investigative journalist at ProPublica and author of the recently released Dragnet Nation: A Quest for Privacy, Security, and Freedom in a World of Relentless Surveillance (2014).

Mike German is a fellow with the Brennan Center for Justice’s Liberty and National Security Program. German has previously served as a special agent with the FBI, where he specialized in domestic terrorism and covert operations. German left the FBI in 2004 after reporting continuing deficiencies in FBI counterterrorism operations to Congress.

Ray McGovern is a retired 27-year CIA analyst and public advocate for the responsible behavior and use of information by U.S. intelligence agencies. He leads the “Speaking Truth to Power” section of Tell the Word.

David Pozen is an associate professor at Columbia Law School who has written extensively on constitutional law, national security law, public law, and information law and policy.

Suzanne Nossel (moderator) is the executive director of PEN American Center, an organization dedicated to promoting a literary culture and to protecting freedom of expression.

REFERENCES

Freedom of Information Beyond the Freedom of Information Act

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US — FOIA has failed to live up to expectations

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