Q & A with a FOIA Expert

Anne Weismann, Chief FOIA Counsel, Citizens for Responsibility and Ethics in Washington (CREW)

How would you explain FOIA to anyone who is not familiar with the law?

FOIA is a valuable tool the public has to find out information about its government, how it works and why it has made certain decisions. It is a law that was put in place to make government agencies respond to information requests. Except for certain exemptions that address privacy and classified information concerns, agencies must obey this command to disclose information to the public. FOIA empowers us all to be citizen activists around issues that appeal to us and help us hold our government accountable.

What are some common misconceptions about FOIA you would like to set the record straight on?

The other side of the inherent value of FOIA is that in practice it often does not work very well. That is because agencies do not provide the resources to process FOIA requests. Even though it is a statutory command agencies should not ignore, they do ignore it or try to bypass it by not providing enough internal resources to deal with the requests they receive. Another misconception is that a federal agency has the discretion not to respond to a request. Congress provided agencies with a timeframe to respond within 20 days, but they often do not and oftentimes requesters have to resort to suing them for the information, which can be a deterrent because typical requesters may not have the resources and knowledge to pursue this avenue accordingly.

What are some critical improvements you would like to see made to FOIA in the future?

The issue of funding is critical because agencies say they do not have the resources to respond quickly to requests, so they end up not prioritizing FOIA as a line item. Congress needs to allocate resources for efficient response to public requests and require agencies to allot resources to process FOIA requests. Another area is exemptions – Exemption 5 in particular. It is meant to protect draft government documents and records of sensitive deliberations before decisions are made. However, agencies use this exemption too broadly in order to avoid scrutiny. In addition, when handling FOIA cases, the courts need to balance the interests of the public against the government’s interest to deem the requested information exempt. For example, in the investigation into the administration’s decision to withhold military aid to Ukraine, a lot of relevant information was deemed part of “deliberative process” and therefore exempt, with no real opportunity to argue why it should not be exempt and in fact in the public’s interest to know what really happened.

How amenable do you think Congress will be now to making an amendment(s) to Exemption 5 given the outcome of the Trump impeachment trial?

I hope there will be more support because Congress saw what happens when an administration chooses to ignore their subpoenas and there is not a vehicle beyond oversight to remedy this. FOIA has always enjoyed bipartisan support and I hope Congress will be supportive of making these amendments to strengthen it as a tool for lawmakers and for the public.

How many FOIA lawsuits have you filed during the course of your career and which ones stand out the most?

It is hard to name an exact number, probably close to but less than 100 because I try to be judicious on what we sue. What stands out most are cases that turn out to be not so much about the information requested but more about the principle. Several come to mind, including a suit against the FEC, for which CREW was awarded $153,000 in attorney’s fees and costs, our suit against the DOJ to obtain the full, unredacted Mueller Report, and the lawsuits that prompted the Obama White House to post visitor logs online. These are some just cases that set a precedent we can use in future lawsuits.

What other activities related to FOIA do you most enjoy in your daily work?

I love the opportunity to train staff who may not ordinarily be familiar with the tool and enjoy working with them as well as the organizations that request our assistance. I like the fact that you do not have to be a well-versed lawyer to use FOIA. These days, you do not have to send your requests by snail mail anymore because most requests can be filed online.

What do you like most and least about your role as a chief FOIA counsel?

I like most the fact that in a time like this when so many are frustrated about what we are seeing from our government and our president, I get to go to work every day and do something about it. Even though success is not immediate, I like taking the long view and chipping away at the problem. Having to choose cases to focus on is probably what I like least because I recognize I am leaving on the table many other requests related to corruption and accountability in the process.

Any quote(s) that inspire your work you would like to share with us?

I believe an informed public is a good thing. It may not always lead to a good thing but the odds are greater that it will when people are informed, so the quote “Sunlight is said to be the best of disinfectants,” comes to mind often.