Publication Date

2015

Document Type

Paper

Keywords

Freedom of Information Act, FOIA, Government transparency, Government secrecy, Corporations

Abstract

Government transparency is imagined as a public good necessary to a robust democracy. Consistent with that vision, Congress enacted the Freedom of Information Act (FOIA) to allow oversight and accountability of governmental activities, imagining the prime intended users to be journalists. But this democracy-enhancing ideal is at odds with FOIA’s reality: at some agencies, commercial—not public—interests dominate the landscape of FOIA requesters.

This Article provides the first in-depth academic study of the commercial use of FOIA, drawing on original datasets from six federal agencies. It documents how corporations, in pursuit of private profit, have overrun FOIA’s supremely inexpensive processes and, in so doing, potentially crowded out journalists and other government watchdogs from doing what the law was intended to facilitate: thirdparty oversight of governmental actors. It also reveals a cottage industry of companies whose entire business model is to request federal records under FOIA and resell them at a profit, which distorts the transparency system even further.

Counterintuitively, limiting commercial requesting will not solve this problem. Instead, this Article proposes a targeted and aggressive policy of requiring government agencies to affirmatively disclose sets of records that are the subject of routine FOIA requests—a surprisingly large number of the documents sought by commercial requesters. By meeting information needs in a more efficient manner that is available equally to all, affirmative disclosure will enable federal agencies to reclaim public records from the private market and free up resources to better serve FOIA requests that advance its democratic purpose.

Rights Holder

Margaret B. Kwoka

Provenance

Received from author

File Format

application/pdf

Language

English (eng)

Extent

76 pgs

File Size

490 KB

Publication Statement

Copyright held by the author. User is responsible for all copyright compliance.

Publication Title

Duke Law Journal

Volume

65

First Page

1361

Last Page

1437

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