Oversight of Oversight: A Proposal for More Effective FOIA Reform

Abstract

The D.C. Circuit’s 2015 opinion, Cause of Action v. Federal Trade Commission, authored by its Chief Judge, Merrick Garland, is a landmark pro-transparency opinion that held an executive branch agency accountable for misreading two Freedom of Information Act fee provisions. In addition to its contribution to the news media and public interest FOIA requester communities, the opinion evidences a pervasive methodological flaw in the congressional approach to FOIA reform. The FOIA statute is inefficient because it invites and requires agency interpretation of key provisions, which is inconsistent with its non-deferential de novo standard of review. Given the natural disincentives executive branch agencies have to comply with the oversight and transparency efforts of news media and public interest actors, agencies exploit FOIA in a manner that is contrary to its public policy goals. This statutory problem survives the FOIA Improvement Act of 2016. This essay makes the case that Congress should approach FOIA reform with greater legislative precision to better achieve its public policy goals. FOIA is unique among legislative enactments because it is an omnibus statute of transparency and oversight, organic to no agency, and one that creates powerful disincentives for agency compliance with its goals. Its de novo standard of review conveys an absence of deference that is in tension with its provisions that delegate agency interpretative authority.