Let’s be Clear: Anything Obtained Under the FOIA is a Public Document

A recent Wall Street Journal described government records obtained by hedge funds as “nonpublic information” (Open-Government Laws Fuel Hedge-Fund Profits, Markets, Sept. 23) This characterization is misleading and undermines the purpose and intent of the Freedom Of Information Act (FOIA). The FOIA makes it clear the public has a right to access most government records after information that must be kept secret to protect national security or a limited number of other interests has been redacted. By definition, any information that is released under the FOIA is public information.

The mischaracterization is understandable, however, given the way that releases under FOIA are generally handled. As the article describes, requesters generally pay only a small fraction of what it costs the government to search for and redact records – effectively a subsidy of information provision to private interests (as well as others). Moreover, once requesters receive the records, they have the discretion to use them and then lock them in a desk drawer or to throw them in the trash – with the effect that public information becomes private and others members of the public must file a request to access the same records.

There are two ways that the government can, and should, increase public access to these public records. First, the government should make more records that have been released under the FOIA available online. This would eliminate the need for multiple people to file requests for the same documents. Second, the government must stop waiting to receive FOIA requests before posting public information that is not required to be withheld, particularly if the information helps the public make better decisions. In addition to records that help people make better investment decisions, the government has records that would improve awareness of the influence of special interests and help ensure tax dollars are well-spent: all of these records should be easily available to the public. Such disclosures would help make good on the President’s promise of openness.

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