August 04, 2018

Freedom of Information Act flaws need fixing, experts say

The problem with the Freedom of Information Act can be summed up in two words: Laquan McDonald. So says Steven Mandell, a FOIA expert and founding partner with Mandell Menkes in Chicago.

McDonald, 17, was shot to death by a Chicago police officer in October 2014 while walking erratically on the street. At first, police said they fired only once, and in self-defense. It took a FOIA request and four months for media to get the autopsy report, which showed McDonald had been shot 16 times. It took eight months and another FOIA request to get video of the shooting, which showed McDonald was walking away from police when he was shot.

On the same day the video was released, the police officer who fired the shots was charged with murder.

“The McDonald case is probably a good example of why public trust in government is at an all-time low,” Mandell said.

Mandell told the story at a panel discussion Aug. 3 at the ABA Annual Meeting in Chicago. The program, called “Hurdles and Hope: The Quest for Transparent Government in the U.S. and Abroad,” was sponsored by the ABA Forum on Communications Law.

The panelists agreed that federal FOIA law needs to be fixed.

Drew Shenkman, senior counsel at CNN, said FOIA laws “are not very effective. It’s very difficult to use them to do basic newsgathering.”

It’s true, Shenkman said, that FOIA is helpful in getting some kinds of information – for example, routine police reports. “But when we really want to dig into something and the government doesn’t want the public to know about it, that’s when we run into trouble and have difficulty using the law.”

Thomas Susman, director of the ABA Governmental Affairs Office, helped amend the FOIA law as a congressional staffer in the 1970s. A major problem with FOIA, he said, is that fewer resources are devoted to processing requests, resulting in longer waits and backlogs.

That brought an objection from Robert Litt, former general counsel to the U.S. director of national intelligence and of counsel with Morrison & Foerster in Washington, D.C. He complained that the rising number of FOIA requests is taking time away from government employees who could be doing other things, “who are trying to do a substantive job as well.”

Laura Neuman, director of the Global Access to Information Program at the Carter Center in Atlanta, responded: “I think giving out information is part of their substantive job.”

The federal government is falling farther and farther behind in processing FOIA requests. Last year, the government received 789,000 requests, but processed only 760,000. “Other countries have surpassed us in their ability to obtain enforcement (of FOIA) through independent commissions, ombudsman and things of that sort,” Susman said.

Another problem: Federal FOIA law doesn’t apply to the president, the courts or Congress. Panelists said that means congressional calendars, travel expenditure reports and sexual harassment settlements are not subject to public disclosure under the law.

Panelists disagreed on whether the Trump administration is less transparent than the Obama administration.

Said Shenkman, “The Obama administration was not as transparent as they set out to be. We had just as many FOIA battles with them as with anybody else, if not more. It wasn’t really, in the media’s view, all it was cracked up to be.”

Litt replied, “What was different in the Obama administration was a commitment to proactive transparency. The president made very clear that he wanted people to be pushing out information and there was an awful lot of information pushed out proactively. There also was a commitment at the top to transparency…. I don’t think you see that in the administration today.”

For all its failings, the federal Freedom of Information Act has succeeded largely as its creators intended when they first wrote the law in the 1960s, Susman said.

“We have just a tremendous amount of information that’s available that we take for granted that wouldn’t be out there if it weren’t for the Freedom of Information Act,” Susman said. “Over time, this has made our government much more transparent.”