Is FOIA Broken?

The Freedom of Information Act (FOIA) was instantiated in law in 1967 as a way for citizens, especially journalists, to access government records to investigate possible conflicts or malfeasance, or simply to understand how and why things happened.

More than 100 countries have implemented some form of freedom of information legislation. Sweden’s Freedom of the Press Act of 1766 is the oldest in the world. The UK didn’t pass a similar measure until 2000.

In 2015 the UNESCO General Conference voted to designate September 28^th as “International Day for the Universal Access to Information” or “Access to Information Day.” The date had previously been celebrated as “Right to Know Day” since 2002.

When I first used FOIA requests in 2012 and 2013 (examples here and here), the system worked as expected — records were produced with alacrity, FOIA staff were friendly and helpful, and document redactions were rare and understandable (a non-government individual’s phone number, for instance). Through the documents, I was able to see who made decisions, how those decisions were made, via unredacted emails with some surprising admissions and communications.

Quick and complete information disclosure allows the public to see how and when certain decisions and discussions occurred, and for it all to happen quickly enough so that those involved are still in their roles and accountable.

In the past couple of years, I’ve submitted FOIA requests regarding OSTP, SPARC, the NIH, the NLM, and various related entities in order to understand how SPARC insinuated itself into the NLM under the guise of a non-profit while concealing its lobbyist roots, and to understand if and how SPARC might have been involved in the August 2022 memo from Alondra Nelson, an odd document released by an interim Director while the full-time Director was sailing through Senate confirmation.

So far, these FOIA requests have had the following effects:

• Heather Joseph, an employee of a lobbying firm (New Ventures Fund, of which SPARC is a project), was found to have been appointed to the Search Committee for the new Director of the NCBI. After reporting based on FOIA disclosures, she was removed for the Search Committee, and an internal candidate was quietly elevated to the Director position
  • The NLM Communications Office had denied any employee of a lobbying firm was on any Search Committee, leading me to ask her boss directly to confirm that all the other evidence I’d accumulated was accurate
• Other evidence showed how cozy Joseph and other SPARC employees had become with NLM, often given leadership roles without question

Despite these outcomes, we don’t know as much as we might — FOIA is much more opaque and slower than it was a decade ago.

Is FOIA so ineffective and time-insensitive now that it’s effectively broken?