Rallying cry for media under Trump: Make FOIA Great Again

November 17, 2016
Photo by Gage Skidmore

Donald Trump has never held elected office. So it’s possible he thinks he can run the the Executive Branch like one of his private companies. But the president-elect does not own the Department of Transportation, the US Navy, or any of the other agencies under his command. We do. And we, the people, under the Freedom of Information Act, have a right to access the material they produce, unless it falls under one of nine exemptions.

The FOIA, notably, places no limit on the number of requests an agency can receive or a person can submit. And it is with this fact in mind–and Trump’s well-documented fondness for superlatives–that I suggest we make Donald Trump the most FOIA-requested president in US history. This wouldn’t just give him another sentence for his astonishingly long-winded online biography, it just may offer a path to redemption for our beleaguered news industry.

On a statistical level, breaking the FOIA record wouldn’t be too difficult. The AP reports there were 769,903 requests completed in 2015, which sounds like a lot, but breaks down to only about one request for every 420 Americans. Are we really that incurious about what’s happening in our name? Furthermore, in Fiscal Year 2015, the number of FOIA lawsuits filed (which are increasingly necessary to produce requested documents; see Item 5) was 498, or an average of less than 1.5 per day. Think about that in light of this line from The New York Times, in 1975: “With an estimated six billion files, the Federal Government is the largest single creator and collector of information in the world.” Can’t we at least bump our average up to two lawsuits a day?

Beyond mere numbers, there are many reasons to get involved in this FOIA deluge. To start, it’s a tangible way for citizens to stay engaged beyond Election Day. Whether you’re a Trump supporter or street-marching protestor, there’s no shortage of questions worth asking. You could file a FOIA for the administration’s nascent enemies list, or its blueprints for the Mexico Wall, or plans to deport undocumented immigrants and register Muslims. You could ask Trump’s EPA for its official position on climate change, or ask other agencies for position papers on NATO or torture. (Here’s a handy guide to who’s subject to FOIA.) The FOIA is not merely a guideline or a suggestion; it’s a law.  And, with every request, the agency is legally obligated to either deliver the documents or explain why it won’t, at which point you can appeal or sue. And, remember: anyone in the world can file a FOIA; you don’t have to be a US citizen.

At the same time, for journalists, the FOIA provides a much-needed opportunity to regain audience trust. Raw documents–like video tapes or tax records–contain none of the “spin” that news consumers rightly or wrongly accuse journalists of peddling. And FOIA releases are also free of much of the moral or legal complexity of leaked documents. (I’m not arguing against leaks, merely pointing out that FOIA requesters are rarely dogged by “Hero or Traitor?” debates.) In my case, I’ve been amazed by how my five-year FOIA battle gets cheers from folks across the political spectrum. News organizations have little to lose by ramping up their focus on documents; our industry approval ratings have almost nowhere to go but up.

Also, although Congress is not subject to FOIA, the law can still be used as an accountability tool. Over the last year, Representative Jason Chaffetz, who chairs the House Oversight Committee, made quite a show of lambasting the Obama administration for its FOIA record. He held hearings. His committee published the report “FOIA is Broken,” with his name on the front page. He told one DOJ official that she lives in a “la la land” with regard to the agency’s FOIA performance. Now that Chaffetz is operating under Trump and Paul Ryan’s “new unified Republican government,” he can presumably apply his FOIA enthusiasm with little resistance. If he doesn’t, he can bet he’s going to hear about it.

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Congress aside, the infrastructure for this FOIA renaissance is already in place. The law now has sharper teeth, thanks to a long-awaited reform package signed by President Obama in July. The National Security Archive’s 122-page ebook, Effective FOIA Requesting for Everyone, is available for free online. Services like MuckRock and iFOIA have made it easier than ever to file and track requests. FOIA all-stars Ryan Shapiro and Jeffrey Light are raising money to fund FOIA lawsuits against Trump-led agencies. And at least one lawyer has invited journalists to “bring my law firm an interesting natsec FOIA request against Trump Admin and we’ll handle litigation pro bono.”

Perhaps all the law needs now is a little help ditching its image as dusty, dry, and irrelevant. And I’m happy to oblige.

I think of FOIA as an extension of the Bill of Rights that reads–to paraphrase–“You have the right to access the government-produced information that is rightfully yours.” I think of it terms of the material it unlocks–as the Albert Einstein’s FBI File Act, or the Military-Grade Weapons At Your Local Police Department Act, or the Remember When Bill Clinton and Trump Were Pals? Act. I think of it as one of many laws that, in the Age of Trump, feel more important than ever.

Philip Eil is a freelance journalist based in Providence, Rhode Island. He sued the Drug Enforcement Administration under the FOIA, with help from the Rhode Island ACLU and two pro-bono attorneys, Neal McNamara and Jessica Jewell. Follow him on Twitter: @phileil.