Feb. 12, 2019 - University of Denver Sturm College of Law Associate Professor Margaret Kwoka proposed an aggressive reform strategy to preserve the Freedom of Information Act's broad vision of public access during a lecture last week in the Hendricks Heritage Room at the University of Houston Law Center.
Kwoka, who researches and teaches in the areas of government secrecy, procedural justice, judicial review of agency actions, shared portions of her upcoming book, "Saving FOIA."
She opened her talk by explaining FOIA's role as the centerpiece of the public's right to access government documents and information in the U.S. The process relies on a request and response model where individuals can submit a request to any government agency and the agency must respond within 20 business days. The agency has to hand over the records unless they fall within one of nine exemptions.
"The process is hardly ever as straightforward as that sounds," Kwoka said. "Persistent complaints about long delays, complex administrative negotiations and administrative burden, overwithholding of records to name a few have plagued the act since its inception, more than 50 years ago."
Kwoka said that journalists frequently complain that FOIA is not a useful tool in reporting the news, even though they were the intended users of the law. But despite complaints about FOIA's failings, the federal government receives more than 800,000 requests annually, and news media make up only a fraction of the requests made.
"FOIA is largely being used for purposes other than what Congress imagined," Kwoka said. "Instead of journalists, my research reveals two main groups that drive the numbers we see today. One are commercial requestors that use FOIA as part of their profit-making enterprise. Another is first-person requestors who use FOIA to get information about themselves.
"The sheer volume of these unanticipated uses suggests that news media and other oversight requestors may be crowded out due to resource constraints. Given that delay is the prime complaint among journalists who use FOIA, it seems hard to imagine that the volume of requests isn't part of the problem."
To respond to the overwhelming number of inquiries and continued criticism of FOIA, Kwoka recommended diverting requests into other information delivery mechanisms.
"There seems to be some obvious opportunities for agencies to engage in a targeted affirmative disclosure initiative that might prevent the need for the filing of hundreds and sometimes thousands of requests at their agencies.
"There are opportunities for administrative discovery processes that may increase fairness and accuracy to individuals and in some ways it may accrue some administrative benefits as well in terms of efficiency by consolidating proceedings in one location within the agency."
Kwoka was the second of 10 speakers in the Spring 2019 Distinguished Speaker Series. The series will continue at noon every Monday in the Hendricks Heritage Room until April 8, except for March 11 during spring break. The next speaker is Natalie Ram of the University of Baltimore School of Law.
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