Taking transparency in governmental affairs seriously, without taking it as a Holy Grail of democracy, is an ongoing scholarly and political task that we hope this book helps advance.

By 1990, a dozen-odd countries had followed the American example in adopting FOI measures of their own. By 2016, that number had mushroomed to more than one hundred.

By 2016, that number had mushroomed to more than one hundred.

FOIA, in short, has conquered the world, not so much through its specific details as by giving the ideal of transparency practical form and demonstrating the potential of a user-generated process for information disclosure.

Usage rates continue to climb, with over 700,000 requests submitted to federal agencies in fiscal year 2015.

One of us has become increasingly skeptical about this.

Congress’s proposed FOIA bill would pass without amendment, but the Department of Justice (DOJ) would draft the House Report explaining the legislative intent behind the bill. … As the bill sat awaiting presidential signature in the early summer of 1966, the agencies were polled on their attitudes to FOIA.

Such objections unsettle any easy assumptions that agency opposition to FOIA could only have been motivated by cynical self-interest, a hostility to democratic governance, or a wish to conceal abuses. … Opposition to FOIA, in other words, was not necessarily antidemocratic. It could emerge from agency desires to protect the public interest.

Aggressive use of FOIA—repeated requests for vast swaths of information—adds to administrative costs and gums up the operations of the state, taking resources away from regulatory activity. … At the broadest level, it seems likely that Americans’ ability to FOIA the state but not the private sector contributes to a general public impression of relative state incompetence and corruption.

At the broadest level, it seems likely that Americans’ ability to FOIA the state but not the private sector contributes to a general public impression of relative state incompetence and corruption.

Aggressive use of FOIA—repeated requests for vast swaths of information—adds to administrative costs and gums up the operations of the state, taking resources away from regulatory activity.

The classification system was only fifteen years old at the time of FOIA’s passage, and it had been created by unilateral executive order. … Under the Act, the President may withhold information about national defense or foreign policy with the formal approval of Congress, previously lacking.

FOIA helped consolidate the legitimacy of the classification system.

Yes, because advocates are right to maintain that transparency is still viewed as a secondary value, notwithstanding rhetoric suggesting otherwise, not just in spite of but because of FOIA; and yes, because a constitutional right would at least extend further into the federal and state and local governments than FOIA; but a very qualified yes, because I’m not sure it matters.

Emerson’s desire to wish away the difficult questions FOIA has faced since its inception is symptomatic of a widely held desire to solve the administrative and bureaucratic problem of the state’s information asymmetries through the judicial application of constitutional rights.

This trust in legal doctrine is unconvincing for at least four reasons. It overvalues the Constitution, undervalues statutes, places too much faith in the judiciary, and doesn’t properly contemplate bureaucratic structures and practices.

William Eskridge and John Ferejohn argue that when presidential administrations and administrative agencies interpret, implement, and enforce certain especially ambitious and resonant statutes over time, such laws not only fill in constitutional gaps but become “super-statutes” that prove as defining and consistent with the nation’s moral character as constitutional provisions.

The Administrative Procedure Act, of which FOIA is a part, is one such statute.

Only lawyers would view the APA as a super-statute; most concerned citizens not in government service, by contrast, view FOIA and the transparency it promises to impose as a foundational law that recognizes and protects their essential right to information.

FOIA’s right of access has endured for more than fifty years, formally expanding through legislative amendment and only rarely and narrowly contracting by court decision.

FOIA’s right of access has endured for more than fifty years, formally expanding through legislative amendment and only rarely and narrowly contracting by court decision. … Indeed, its status as a statutory right, rather than a constitutional right, has allowed and even invited iterative reform by amendment.

Perhaps the underlying transparency project that Cross, Emerson, and current advocates have undertaken misunderstands the state and its potential for being opened. … FOIA might only have limited utility as a means to achieve an effective or accessible state, and as such it might work best if recognized as an administrative, essentially bureaucratic apparatus rather than as a provider of transcendent, constitutional-ish rights.

No legal authority, of whatever type, can perfectly manage this mess.

For example, one study of a sample of requests submitted to the National Security Agency in the late 1990s found that 12 percent concerned Unidentified Flying Objects.

I document the scope and nature of commercial and first-person requests here and argue that those requests largely fulfill purposes other than democratic oversight.

These two categories of requesters are the largest cohesive groups of requesters across the federal government. … I document the scope and nature of commercial and first-person requests here and argue that those requests largely fulfill purposes other than democratic oversight.

These are businesses whose very business model is to request records under FOIA and to resell those records at a profit. … At five of the six agencies at which I studied the commercial use of FOIA, information resellers were among the most frequent requesters.

Rather than continuing this inefficient process of retail requesting, there are easily identifiable instances in which an agency could make the entire category of records affirmatively available by publishing a database on its website for anyone to access.

A leaner, meaner Freedom of Information Act would better serve its government oversight purpose. Alternative disclosure channels—used to preempt the need for FOIA requests but not to constrict FOIA rights—would ensure that transparency is not compromised in the process.

Requests under Michigan’s Freedom of Information Act led to evidence that the state’s Department of Environmental Quality tried to cover up lead contamination in Flint’s water supply.

FOI requests at the state level have led to stories that have attracted public attention, won awards, and prompted government action. Requests under Michigan’s Freedom of Information Act led to evidence that the state’s Department of Environmental Quality tried to cover up lead contamination in Flint’s water supply.

FOI requests at the state level have led to stories that have attracted public attention, won awards, and prompted government action.

Evidence on these practices and outcomes is scarce: many states do not collect such data or do not require the data to be made public. Some states do not even require agencies to keep logs of the FOI requests they receive, much less track the disposition of requests.

A fundamental problem with all of these evaluations is that they focus on the laws on the books rather than on implementation practices or requester outcomes. Evidence on these practices and outcomes is scarce: many states do not collect such data or do not require the data to be made public.

Evidence on these practices and outcomes is scarce: many states do not collect such data or do not require the data to be made public.

The logs received suggest that FOI requests by journalists are as rare at the state level as they are at the federal level.

The low percentages of journalists among state FOI requesters indicate that news media requests are marginalized at the state level, perhaps even more than they are at the federal level.

Three policy measures would improve reporters’ use of government documents and data: (1) real implementation of the FOIA reform act passed in 2016; (2) recognition by government funding bodies that journalism about public affairs is worthy of support because it is underprovided in the market; and (3) greater adoption of proactive transparency strategies.

Requests for government records under FOIA or its state and local counterparts were much more likely in those investigations that had major impacts. … For example, in the sample of more than 12,500 IRE contest entries, 40 percent of the stories that triggered review of policies involved government records requests.

40 percent of the stories that triggered review of policies involved government records requests.

In 2005, local newspapers generated the highest number of FOIA requests (288) among all media categories at these agencies. … But the number of requests by local newspapers dropped by about 50 percent by 2010.

Investigative reporting can generate significant positive spillovers for society when the new information uncovered leads to well-founded policy changes. … In Democracy’s Detectives, I find in several case studies that a dollar invested by a newspaper in an investigative series can produce more than a hundred dollars in net policy benefits when laws and regulations are changed as a result of this type of accountability reporting.

Heavier users included businesses (39 percent of requests), law firms (16.7 percent), and individuals (20.1 percent).

Justice Scalia’s appeal to “institutionalized checks and balances” nonetheless points to an important insight. … The successes of FOIA in calling the GWOT to account were predicated upon and facilitated by institutions beyond the statute itself.

A FOIA system that provides broad benefits to an array of special interests, moreover, provides robustness against political attack. … The broader the constituencies that benefit from a regime of transparency, the more likely that regime is to prove sustainable.

Rumsfeld was wrong about many things. … But he was right in observing that self-correction, like self-government, requires information.

THE FREEDOM OF INFORMATION ACT (FOIA) appeared as part of a wave of transparency and accountability reforms in the latter half of the twentieth century that included inspectors general, auditing bodies, and independent commissions.

THE FREEDOM OF INFORMATION ACT (FOIA) appeared as part of a wave of transparency and accountability reforms in the latter half of the twentieth century that included inspectors general, auditing bodies, and independent commissions. John Keane’s concept of monitory democracy captures the democratic practices made possible by such reforms: monitoring tools permit citizens to hold public officials to account not only in elections but also through permanent, ongoing scrutiny of government activity.

These developments, however, have the potential to set in motion paradoxical dynamics that might undermine the very democratic values they are said to promote. Three paradoxes—a bureaupathology paradox, an expertise paradox, and an expectations gap paradox—have the potential to compromise the ability of transparency-directed initiatives to enhance democracy.

First, monitory instruments such as FOIA and the IGs require substantial administrative capacity to work as instruments of accountability, and the costly bureaucratic apparatus that they demand can undermine the very streamlined, democratized administration they are intended to promote.

Although the question itself deserves public deliberation, only a concerted effort to encourage different kinds of public intermediaries will mitigate the unintended and paradoxical consequences of transparency-enhancing practices.

There is a distinction between output transparency and input transparency. Suppose, for example, the Department of Transportation completes a detailed study of the kinds of policies that help reduce deaths on the highways; the Department of Labor produces an analysis of the health risks associated with exposure to silica in the workplace; or the Environmental Protection Agency produces a regulation to curtail greenhouse gas emissions from motor vehicles or adopts a policy about when it will bring enforcement actions against those who violate its water quality regulations. All of these are outputs. The government might also become aware of certain facts—for example, the level of inflation in European nations, the number of people who have died in federal prisons, the apparent plans of terrorist organizations, or levels of crime and air pollution in Los Angeles and Chicago. For the most part, facts should also be seen as outputs, at least if they are a product of some kind of process of information acquisition.

Sen’s starting point here, which he demonstrates empirically, is that famines are a social product, not an inevitable product of scarcity of food. … Whether there will be a famine, as opposed to a mere shortage, depends on people’s “entitlements”: that is, what they are able to obtain.

A remarkable finding by the economist Amartya Sen is that in the history of the world there has never been a famine in a system with a democratic press and free elections. … Sen’s starting point here, which he demonstrates empirically, is that famines are a social product, not an inevitable product of scarcity of food.

With respect to inputs, the argument for disclosure is significantly altered, and it is also weakened in two critical respects. First, the benefits of disclosure are usually much lower (definitely not always, but usually). Second, the costs of disclosure are much higher. These are categorical statements with major qualifications, to which I will turn in due course.

With respect to inputs, the argument for disclosure is significantly altered, and it is also weakened in two critical respects.

A central reason is that government often has information that people can use, perhaps to make life more navigable, perhaps to avoid serious risks. … Another reason is that sunlight can operate as a disinfectant.

For outputs, transparency can be exceedingly important. A central reason is that government often has information that people can use, perhaps to make life more navigable, perhaps to avoid serious risks. It should not keep that information to itself. Another reason is that sunlight can operate as a disinfectant. Whether the information involves the government’s own performance or the performance of the private sector, disclosure can spur better performance.

Output transparency should be the central focus of efforts for freedom of information; we need much more of it.

FOIA’s legal right of action to sue (or threaten to sue) for information disclosure when records are withheld remains essential for ensuring access to data of public import until other mechanisms are put in place to mandate open data disclosures. … The significance of the decision is that the IRS now makes all electronically filed nonprofit tax returns digitally downloadable as open data.

FOIA’s legal right of action to sue (or threaten to sue) for information disclosure when records are withheld remains essential for ensuring access to data of public import until other mechanisms are put in place to mandate open data disclosures.

But the most significant impact of open data in the long run may stem less from the immediate problem-solving benefits than from the way open data fosters more active citizenship and more responsive democratic institutions. … It transforms transparency policy from a means to monitor government after the fact to a mechanism for getting the public to participate actively in improving societal outcomes.

In FOIA’s first years, government agencies reported denying less than 1 percent of all requests in full or in part. … According to data compiled by the Department of Justice, in 2008 almost 22 percent of all requests were denied in part or in full based on an exemption. … Eight years later, that number had risen to 42 percent. … This rise in denials, which has been enabled by judicial decisions broadly applying FOIA’s exemptions, represents a worrisome trend.

This rise in denials, which has been enabled by judicial decisions broadly applying FOIA’s exemptions, represents a worrisome trend.

In FOIA’s first years, government agencies reported denying less than 1 percent of all requests in full or in part. … According to data compiled by the Department of Justice, in 2008 almost 22 percent of all requests were denied in part or in full based on an exemption. … Eight years later, that number had risen to 42 percent.

Eight years later, that number had risen to 42 percent.

Although two of FOIA’s privacy exemptions already incorporate a species of public interest balancing, those exemptions concern individual privacy interests. … Public interest balancing in the context of those exemptions thus serves a somewhat distinct function and has been limited in its application by court decisions.

One means of doing so would be an amendment to FOIA requiring agencies and courts to balance the public’s interest in disclosure against the agency’s interest in secrecy when determining whether requested information falls within one of the act’s exemptions.

The government certainly has the power to claim a FOIA exemption to hide its internal manuals describing how it goes about that awesome undertaking.

A closer analysis, however, indicates that on a number of the more important issues there were significant innovations following the U.S. FOIA. For example, in terms of the key issue of the scope of public authorities covered, only the United States and Canada exclude both the courts and the legislature, whereas fully six of the focus countries cover both. Another key issue is exceptions, which define the scope of the law in terms of the information covered. There, three of the four issues were diverging and one inconclusive, suggesting a strong move away from positions taken in the U.S. FOIA. The presence or absence of an administrative oversight body is another key feature of a strong RTI law, and here, again, the four issues divided into three diverging and one inconclusive. Having a constitutional guarantee and providing for sanctions for obstruction of access—both again arguably critical issues—were also diverging. These issues reflect fully nine of the ten examples of divergence, with only the last one, transfer of requests, being less significant.

Our research suggests that there are a number of objectively discernible similarities between the U.S. FOIA and RTI laws from countries around the world, adopted at different times and demonstrating different levels of strength as measured against international standards. We have not assessed the question of causality regarding these similarities, but it seems reasonable to posit that at least some of the similarities must have been due to borrowing from the FOIA model. At the same time, our research indicates that in relation to many of the more important features of RTI laws, as identified through the RTI Rating, cases of divergence from the U.S. FOIA are far more prominent than those of borrowing from it. These results disprove any notion that FOIA has been transplanted abroad in its totality, and they unsettle the often unquestioned assumption that it had at least a major impact on the design of foreign RTI laws. This is hardly surprising, but our results tend to confirm the view that significant innovation and development in RTI practice have been occurring outside the United States.

These results disprove any notion that FOIA has been transplanted abroad in its totality, and they unsettle the often unquestioned assumption that it had at least a major impact on the design of foreign RTI laws.

One of the more important developments noted in this study since adoption of the U.S. FOIA is the trend toward constitutional protection for RTI. This parallels international developments, whereby RTI has been recognized by authoritative international sources as a human right.

The world owes the United States a debt for its pioneering work in the area of RTI, most especially for promoting the foundational notion that individuals have a right to access information held by public authorities.

But in terms of de facto effectiveness, Occam’s razor points to the role of Mexico’s information commissioner. This institution now controls all final decisions over information handling and disclosure across all levels and branches of the Mexican state.

A satisfactory response to those demands requires a democratic-expansive understanding of transparency. … This approach views transparency as a matter of political rights and citizenship rather than bureaucratic hygiene.

For decades, the concept of corruption often has been reduced to a mere synonym for low-level public officials receiving bribes. … It sees corruption not only as a cause but also as a symptom of democratic failure.

Structural corruption encompasses both illegal acts and perfectly lawful but morally questionable acts. … It sees corruption not only as a cause but also as a symptom of democratic failure.

In countries like Mexico, reformers should adopt a structural understanding of corruption and tie the protection of transparency to a vision of strengthening citizen participation in democracy. … The latter insists on the extension of transparency and accountability controls normally reserved for the public sector into the private sphere.