The Promises of FOIA in 2021: A Ready Pathway to Accountability

For all that we know about the Trump administration’s misdeeds, a tremendous amount of information remains obscured. The reasons are manifold — from unprecedented obstruction and deceit to historically poor compliance with transparency laws.

As we start 2021, there has been lively debate about how the incoming Biden administration should approach investigations into President Donald Trump and his administration. As James Fallows put it, “Chronicling what went wrong under Trump has already generated tens of millions of words—and has barely begun.” Fallows points to the set of decisions that Joe Biden and his administration will have to make about exposing the record of the Trump era.

The question of how to properly investigate — and document — the Trump administration’s historic corruption and voluminous misdeeds is a profound question and well worth thoughtful discussion. Fallows recommends establishing 9/11 Commission-style investigations to excavate the Trump administration’s most egregious transgressions. Other recommendations include rebuilding the hollowed-out civil service and appointing a strong attorney general and independent inspectors general who will follow the law and the facts where they lead.

Such actions are certainly warranted. When it comes to chronicling the last four years, though, it is worth remembering that federal law already provides a big part of the answer. The Freedom of Information Act requires the government to release documents to the public according to clear rules and deadlines. Setting up special commissions and restoring faith in democracy would be vital to a national reckoning. But for the public to get answers, the government just needs to follow the law.

Today, there is a massive backlog of FOIA requests pending before the federal government. At nearly every agency, members of the public, the media, and watchdog groups have been waiting for months or even years for responses. By virtue of the calendar alone, we should expect important disclosures in 2021 that will help drive the accountability discussion forward.

Here are just a few of the areas where pending FOIA requests and litigation are poised for impact next year:

The tragically bungled pandemic response: Disclosures of U.S. government records have already revealed the scrapped plan to mail face masks to American households, and have shed more light on the politicization of public health guidance and the industry and private-sector influence over the administration’s mishandling of the Covid-19 pandemic. As the country anticipates the continued rollout of vaccines, the government’s management of the distribution will be an ongoing area of investigation. Pending records request and litigation also seek details about the disbursal of relief funds and pandemic-related government contracts, as well as whether and to what extent political considerations were put ahead of people’s health in the creation of CDC guidelines.

Voter suppression and conspiracy peddling: Trump’s systematic effort to delegitimize the results of the 2020 election by pushing baseless claims of widespread voter fraud hasn’t been a solo operation. In addition to the failed lawsuits brought by his legal team and allies, the groundwork for misinformation and mistrust has for years been laid by state and local officials and voting-restriction activists. We’ve seen how public records from state governments can expose these efforts to suppress the vote, and as evidenced by the president’s and his supporters’ continued promotion of conspiracy theories, those efforts show no signs of letting up before Trump leaves office. Trump’s lame duck presidency has been defined by efforts to cajole federal and state officials to overturn the election, which means documents are still being created at this moment and the work to uncover them is just starting.

Trump’s presidential profiteering and abuses of office: As the administration stonewalled congressional requests during the impeachment proceedings, public record disclosures through FOIA played a major role in the gathering of evidence of Trump’s corrupt dealings with Ukraine. Similarly, such disclosures have provided valuable information about the extent to which taxpayer money has fed the coffers of a president who refused to financially divest from his business and used his properties as a place to receive both profit and political favors. That is almost certainly not the extent of what there is to know about a president who put his own wallet and political interests above public service — from how much money went to his pockets to how far he went in his attempts to turn the Justice Department into his personal law firm.

Immigration detention center abuse and family separation: New information regularly emerges about the conditions in migrant detention centers and the circumstances leading to tragic deaths of people in custody. Public records can also provide details about who was involved in the administration’s most heinous anti-immigration policies, including the separation of children from their families at the border. As the administration uses the pandemic to justify even more deportations, asylum denials, and draconian restrictions, future disclosures can tell us which officials have been behind these dangerous actions.

There are several takeaways from the impending disclosures. First, information necessary for holding the Trump administration accountable is coming. The Trump team’s efforts to obstruct Congress and hold up FOIA responses caused delay, but transparency litigation will march forward.

Second, much of the debate over accountability for the Trump administration assumes that disclosures are optional. To be sure, the Biden administration can invest in significant new accountability efforts. But the basic operation of FOIA means that the new administration already has a legal obligation to support investigations. What’s more, the obligation is broad. We do not need to choose only the most egregious transgressions to investigate. Indeed, we may not even know about some of the actions that would make the list until they are revealed through this process.

Third, FOIA offers an important pathway for accountability without the need for investigations that are susceptible to criticism for being politicized. Even the most conscientious 9-11 Commission-style investigation will be contested. In contrast, FOIA is bureaucratic and the public chooses what to investigate, not political appointees. And when it comes time to enforce FOIA requests, independent courts oversee the process according to the law.

Relatedly, releasing documents through FOIA would be a step toward the restoration of the rule of law. It may be tempting to hope the Biden administration will come into office and immediately start churning out huge volumes of backlogged documents about Trump era malfeasance, but doing so could risk the appearance of engaging in politically motivated document dumps, rather than having come from a commitment to government transparency. We just experienced four years of highly politicized, norm-busting behavior, and should aspire to a return to the rule of law, which in this context would mean complying with FOIA. Much of FOIA’s power comes from the fact that it is a law-bound, apolitical process. Indeed, there is something reassuring about the most law-breaking president in history facing accountability — as he should — according to the workaday results of the law.

Which brings me to my final point: The next administration can make a big difference if it embraces transparency as a core value and commits the resources required to meet the government’s legal obligations.

A coalition of open government advocates and organizations recently proposed several key reforms the next administration can adopt to do exactly that:

● Issue a presidential memorandum, as President Obama did in 2009, that embraces transparency and commits agencies to improving their compliance with FOIA–and then follow through;

● Adopt a proactive approach to transparency, such as releasing visitor logs and high-value categories of documents, including official calendars;

● Promote FOIA compliance as a job requirement for senior officials, especially general counsels; and

● Invest in staffing and technology to meet the demands for information.

Committing to FOIA from both a values and resources perspective is a critical step for the next administration. It will mark a return to good-faith governance and it will provide the basic mechanics for accountability for government officials, no matter what administration they serve.

But the final piece will be advocacy. Accountability through FOIA requires the public, media, and watchdogs to keep fighting. For those of us who have paid close attention to the malfeasance and obstruction of the last four years, I don’t think that’s asking too much.

 

Photo credit: jat306/Getty Images

 

About the Author(s)

Austin Evers

Executive Director at American Oversight - Follow him on Twitter (@AREvers).