 Greetings from the National Archives Flagship Building in Washington, D.C., which sits on the ancestral lands of the Nacochtank peoples. I'm David Ferriero, Archivist of the United States, and it's my pleasure to welcome you to today's conversation about the book Saving the Freedom of Information Act with the author Margaret Cuoka and Thomas Susman. Before we begin, I'd like to tell you about two programs coming up in the next couple of weeks on our YouTube channel. On Friday, November 19th, at 1 p.m., Michael Burlingame will tell us about his new book, The Black Man's President, and discuss Abraham Lincoln's personal connections with black people over the course of his career. On Wednesday, December 1st, at 1 p.m., Faye Yarbaro will discuss Choctaw Confederates, her new book about the Choctaw Nation's role in the Civil War. As the keeper of this nation's founding documents, we at the National Archives frequently note that democracy starts here. And while the National Archives is well known as the home of the nation's most legally and historically significant documents, one of our lesser known roles involves the Freedom of Information Act, FOIA, which provides a right of access to federal records with certain exceptions. The National Archives is home to the Federal FOIA Ombudsman Office, the Office of Government Information Services, which is available to help anyone with the FOIA process. OGIS helps to resolve FOIA disputes, educates about the FOIA process, and recommends ways to improve the FOIA process for everyone. In her new book, Margaret Croca posits that FOIA is largely used for purposes that do not foster democratic accountability. Her work on this book begins with a single question, is FOIA working the way Congress intended. Professor Croca's extensive research shows that the news media, which Congress envisioned would be the most frequent users of FOIA, are largely not using the law. Instead, some federal agencies are inundated with FOIA requests in which requesters seek records about themselves. Other federal agencies receive requests for records that are used as part of a profit-making enterprise. To address these issues, Professor Croca proposes a series of structural reforms that are designed to shift FOIA back to its original purpose of fostering democratic accountability. Margaret Croca is the Lawrence Herman Professor in law at the Ohio State University Moritz College of Law. Her FOIA research has been published in the Law Review in the Duke Law Journal, featured in The New York Times and recognized by the Law and Society Association with the Harry J. Cleveland Junior Prize for Empirical Scholarship. In 2016, I appointed Professor Croca to the second term of the Federal FOIA Advisory Committee, one of four advisory committees here at the National Archives. The FOIA Advisory Committee makes recommendations to me for improving FOIA administration and proactive disclosure and I'm pleased to welcome Professor Croca back to the National Archives. Joining her in conversation is Tom Sussman, a longtime FOIA advocate who served with Professor Croca on the FOIA Advisory Committee and continues to serve on the committee. Mr. Sussman spent nearly three decades in private practice handling FOIA-related litigation and regulatory matters before joining the American Bar Association, first as director of governmental affairs and now as strategic advisor. Mr. Sussman was the principal staff lawyer to the Senate subcommittee that worked to enact the 1974 FOIA amendments. I can think of no better person to engage Professor Croca in conversation about whether FOIA is working the way Congress intended. Now let's hear from Margaret Croca and Tom Sussman. Thank you for joining us today. Good afternoon. I'm delighted to be here this afternoon with Professor Croca in the National Archives on a subject near and dear to my heart. I think most people understand that I've been a FOIA junkie for decades and Margaret and I are birds of a feather. Now I know how I got started and why I'm so enthusiastic about the Freedom of Information Act or FOIA, but Margaret give us your origin story. How did you get started and what made you passionate about these issues, passionate enough to write a half dozen articles in a book, still working on it? Well thank you so much Tom for being here, for moderating this discussion, and I just also want to thank the Archivist for this really gracious introduction and the archives for hosting this event today. It's really an honor to be here in Tom's company and at the invitation of the Archivist, so thank you all for making this possible. And I appreciate this question because I don't really get a lot of chances to tell my FOIA origin story and I think maybe like many of us, I'm not sure, but I sort of stumbled into my passion for FOIA, I think. You know I was a newly amended lawyer when I went to Washington to work for a public citizen litigation group, a public interest law firm, and when I was there sort of the majority of cases I worked on were FOIA cases, and principally I was representing clients who were other public interest groups, other advocacy groups, and one of the things that I think I immediately loved about the practice or that drew me to the practice was that FOIA cases touched on this sort of wide variety of issues that I cared about, right? Sometimes it was consumer safety or sometimes it was immigration reform or sometimes it was environmental protection, and you know, and I was doing my little bit on the, you know, to contribute to those efforts helping these organizations unlock government files they needed to do their work, and I think I was a bit awestruck at the power of this seemingly humble sort of law, right? It's sort of very, in its simplicity it feels so straightforward, and from there I was really hooked, which I think is probably something that you can identify with. When I moved into the academy I sort of threw myself into FOIA research hoping that I could contribute to a better understanding of the law and how it operates, and then, you know, this book honestly began, you know, not that long thereafter because I think partly I've just always really loved FOIA requesters, you know, and I became more and more curious who these nearly million requesters a year are, and I started actually making a single FOIA request to a single federal agency asking for a detailed set of their FOIA logs, that list of who's requesting records of FOIA and what they're requesting, and I made that request in 2014, and that was the first request that got data for this book, and with that first set of responses I was just fascinated, like I wanted to know more about all the requesters I saw on this list, and I, you know, and these records were, and I dug in and I researched these companies and their products and the agency's regulatory scheme and its record systems, and from there I just kept going, and the stories of these requesters felt so compelling to me, and they seemed like they sort of illuminated an entire relationship between the administrative state and the public that I hadn't really known existed, and gave me an understanding of what work FOIA was doing that hadn't really been documented before, and since then, you know, I've made hundreds more FOIA requests for agencies FOIA logs and related records, the irony of studying FOIA by making FOIA requests, by the way, is not lost on me, and I then, you know, started just, I wanted to know more and more about these requesters, and I started doing interviews with, you know, series of requesters, a series with journalists, one with lawyers who represent individuals in administrative proceedings, and then I started interviewing government officials from FOIA offices and visiting FOIA operations at a variety of agencies, sort of trying to peek behind the curtain and understand these issues from every side, and I love telling these stories in the book. I think it links everything I care about about this issue. That's the power of information and the right to access it, which probably is how most of us got hooked on this topic. All right, let's dive in. 250 pages, clearly empirically the most comprehensive job of plumbing the depths of the use of FOIA that's ever been assembled, but you refer there and you deal with a number of various constituencies, first-person requesters, commercial, self-interested, accountability requesters, oversight requesters, start us off by orienting us, how you characterize, categorize requesters, and give us an introduction to the groups and their importance in use of the act, because that really isn't the foundation of your conclusions. Absolutely, and I think maybe as I just alluded to, it's actually really difficult to ascertain who requesters are and what records they want. There isn't a central FOIA portal for all federal government requests where you can just aggregate data government-wide, and annual reports that agencies make under FOIA don't report this kind of information. So I think that as the archivist actually alluded to, I think a lot of assumptions are made that the FOIA is being used primarily as intended to inform the public about government operations and promote democratic accountability, typically by the press or a small number of civil society watch drug groups. And those same folks show up in policy conversations, testify on the Hill, serve on the advisory committee, lobby-elected officials about FOIA, and so it just seems like that's the constituency for FOIA. But the central finding of the data that I gathered is that these requesters that we imagine to be the primary users are a tiny fraction of all FOIA requesters. So I'm going to just share just a brief few slides actually while I give you this sort of big picture overview in the hopes that it helps a little bit. So one way of understanding FOIA today, I think is to go visit the National Record Center outside of Kansas, Missouri. And as you pull up, you will realize why everyone refers to it as the cave. It is quite literally a cave. So your car goes into the subterranean parking lot and there's like rocky limestone all around you and tucked deep in the parking lot is this sort of brightly lit glass door. You go it through kind of modest security. And on the other end, you're in what could be any windowless office space filled with cubicles except that there's a cave around you. And these are the offices of the National Record Center operated by U.S. Citizenship and Immigration Services. And if you walk around, it becomes immediately clear how immense this facility is. In it are four almost unthinkably large stack rooms. These rooms collectively house more than 20 million paper A files. These are the single official record documenting the immigration history of a particular non-citizen. The stack rooms contain enough records to fill four football fields. And every day there's multiple semi tractor trailers pulling up dumping files in and taking files out. It is because of this facility and because of A files that the cave is the single largest FOIA Processing Center in the country. There's 250 employees who do nothing but process records at NRC. Another 500 contracted staff do nothing but file management like tracking, sorting, pulling, scanning, mailing. And now that facility processes upwards of 200,000 FOIA requests a year, almost all of which are made by non-citizens seeking their own A file. And so in some very real sense, the cave is where FOIA is actually happening. So this slide is sort of my snapshot of the data that I report in the book. Rather than the news media, as you can see in this chart, there's sort of two groups of requesters who dominate the landscape. And those are first-person requesters that is people who are seeking their own records, records about themselves or commercial requesters. Those are requesters who are using FOIA to get records that feed into part of their profit-making enterprise. And another way to characterize this data, I think, is that it demonstrates that FOIA is largely used for purposes other than promoting democratic accountability. My best estimate now is that the news media are less than 3% of requesters government-wide. And as to the biggest group of requesters, first-person requesters, I'll just mention that it is in fact dominated by the kinds of requests I described in the cave. So immigration-related requests. And that is driving numbers government-wide. Some of very back-of-the-envelope math is sort of up here on this slide that pegs more than half of all FOIA requests government-wide as first-person requests made by non-citizens seeking their own immigration records. These are typically individuals who are in removal proceedings, deportation proceedings who use FOIA to get records to use in their pending enforcement case, or individuals who are seeking to apply for a new visa or for citizenship and need their immigration records to do so. But first-person requesting is also hardly confined to immigration. So this is not an exhaustive list but a representative list of agencies where you see significant volumes of first-person requesting. And I've grouped them loosely by the agency function that is prompting the request at each. So like with immigration and other agencies that engage in enforcement, we see pockets of first-person requests in lieu of the availability of administrative discovery. Agencies that administer individual benefits also see substantial first-person requests that are filed by people who are trying to best position themselves either with respect to applying for or sometimes appealing the denial of benefits. And then another category arises at agencies that provide direct healthcare services. So people use FOIA in droves by the tens of thousands trying to get their own medical records. And finally, there's a group here of agencies that get voluminous first-person requests from individuals doing genealogy research. So those are the kinds of interests represented there to turn to commercial requesters briefly. While they only make up about 8% of requests government-wide, this slide shows how it really varies by agency. So at some agencies, commercial requesters are the vast majority of requesters. Businesses have a range of reasons to turn to FOIA including due diligence before business deals, learning about competitors, learning about the regulatory landscape, or aiding in various consulting or advising ventures. There's also a category of businesses I was interested in at some agencies that I call information resellers. These are businesses that request large volumes of records under FOIA and resell them at considerable profit to private parties. And I'm going to close out of my slides so I can sort of just talk briefly about what conclusions I think we should drop from this. But, you know, and it's sort of a necessarily sort of cursory overview, but I do think that these accounts reveal two important characteristics that these requesters sort of broadly share. First are interests, first are that the interests that are served by these requests are largely private interests, not exclusively but largely. I do want to be clear that these requesters have legitimate, lawful, sometimes even critically important interests in the records, but their reasons for requesting and subsequent use of the records are by and large not to promote public knowledge about government activities or accountability for agency actions. And then second, these requesters are submitting sort of thousands upon thousands of routine predictable requests. So each file may be different, each inspection incident may be different, each individual is different, but the types of records they seek are the same. And these groups of largely non-oversight requesters make up the vast sort of majority of FOIA requests across the federal government and that's sort of the central lay of my empirical findings that I lay out in the book. Let me pick up on that last point because you do, I think at least imply that you believe that these private requesters gum up the system a bit. And are the cause of a lot of the delays and a lot of the reasons that oversight requesters don't use the act because they have to stand in line too long. But it does seem to me that in contracting and regulatory programs and decisions on benefits, even law enforcement, these requesters are doing a public service to the extent that and in my private practice request to the commerce department and FDA and EPA often turned up agency mismanagement error, rule makings that were not well founded and had to be withdrawn. And these all have much broader impact than the individual self-interest. So I mean, I know you recognize they're legitimate, but I guess I'd like to try to draw you out to go a little further than that. Yeah, I mean, I couldn't agree more. And over the years, I think actually conversations that you and I have had on this very point in the past have certainly pushed me to clarify my thinking around this question. I'm always grateful for our exchanges on this issue. You're, of course, completely right that commercial requesters can and sometimes do promote, sometimes precisely the democratic accountability ends that we hope FOIA to serve. And you gave a couple of examples of that, where maybe it turns up some error in the regulatory process that benefits more broadly because of the advocacy or litigation that might follow on. And for first-person requesters, sometimes those private aims also do have more public-facing benefits that accrue. So sometimes we see patterns of problems in individual cases emerge from FOIA requests that then lead to greater advocacy efforts or including publicity or other kinds of advocacy taken, other actions taken. And so, and even if we think about it at its most private level, I sometimes characterize what's happening when individuals are dealing with the agency directly or even companies in their own dealings with the agency regulatory process as a sort of private accountability. Even if it never gets past that case, holding the government to account to have fair and accurate proceedings is an important sort of public due process-like benefit of legitimacy in our government. That said, I will say, I think my data shows that the stories about when first-person and commercial requesters use that they receive turn into public accountability are outliers. The vast majority of records that these groups request stay locked in their private files or private uses. And as for commercial requesters, who you reference specifically, a huge majority of them are getting information that they use to learn about their competition, to ensure they conduct a due diligence on business deals or to sell information to their clients. This may produce some other ancillary benefits like a better working marketplace or better consumer goods. I can imagine some sorts of public benefits, but they're not really democratic accountability benefits. I don't find any of those uses inappropriate, but I am absolutely, and I don't actually feel critical of the requesters, though I know it's a fine distinction. I do feel critical of the effect of the volume of those requests on the functioning of FOIA overall. And I think it is causing harm, and I can talk a bit more about that if you'd like, about how I think it does that to democratic accountability. The last bit that I'll say about these is that these requesters aren't turning to FOIA because it works so well for them or makes sense for them. They're turning to FOIA because there isn't an alternative. And so in many cases, I actually think that alternatives would be better for these requester groups, too, in addition to freeing up FOIA resources. So one way in which that's true is that these groups of requesters have these extremely predictable and routinized requests. Companies that are requesting every FDA inspection report, or one at a time. I mean, FOIA is this sort of the opposite of routine information delivery. You have to write a letter that reasonably describes the records you want, and there's a personalized attention from a FOIA officer with a personalized response and personalized fee structures and personalized service. The truth is FOIA was designed with journalists and their bespoke requests in mind. It wasn't made for en masse, routinized records requesting. It's not good at that. And I think we can find better ways to meet these legitimate information needs and interests of these other requesters rather than requiring FOIA to do all the work it does as it stands today. So, I mean, that, of course, leads to the issue that you're clearly anxious to get into, and that is the clogging of the pipeline by all of these requesters, however legitimate, however beneficial, that causes delay. The Broken Underperforming Freedom Information Act because of the delay that then deters oversight requesters, especially journalists. I got that right. I read the book really closely. You're absolutely correct. But then you go further than just documenting the problems. You propose a series of policy reforms that you believe actually would improve the functioning of FOIA. Let's get into some of those because that's really perhaps going to be the major impact of your book. Absolutely. And I think, yeah, I think, you know, I sort of hinted at it or was getting there in my last response. But the real crux of what I think this data leads me to believe is that rather than trying to squeeze all of the public's needs for government information into FOIA, reform efforts should focus on requiring or incentivizing agencies to meet these other kinds of information needs head on through tailored mechanisms outside of FOIA. So let me just be very clear. In my view, no one should ever be denied the opportunity to avail themselves of FOIA if they want. But the truth is I've seen in my canvassing of the federal government and their various efforts of reform and initiatives of various offices and agencies, plenty of examples where alternatives have been made and people are happy to avail themselves of a better alternative if it exists. So in my view, this would reduce, perhaps vastly, the number of FOIA requests that are made free up FOIA offices resources to better serve FOIA's core mission. And as a side benefit, I think in many instances will better serve these requesters as well. So let me give you a few sort of like very briefly describe a few of this menu of alternatives. And then we can sort of dive in whichever way you want. So affirmative or proactive disclosure, sometimes labeled either one, is one of the major areas where I think we really need sort of aggressive action. One of the most interesting findings for me, and I described this a bit, was just that as it turns out, commercial requesters tend to request the same types of records over and over and over again. Whole categories of inspection reports, whole categories of government contracting information or SEC filings. One can imagine a targeted affirmative disclosure initiative that might better address, especially commercial requesting, by publishing on an ongoing basis these whole categories of records that are frequently requested. But it's not limited to commercial requesters. There are areas where I think even for individuals, we can think of things like portal access, sign in to get your information, sign in to get your information through a portal. Healthcare records, most of us are now used to having electronic health records, a move to an electronic health record systems would be a sort of private affirmative disclosure. It would be immediately available without the need for a request. And I see opportunities like that all across the federal government. So that's one area. A couple other things we could do involve sort of restructuring some of our sort of administrative processes around adjudication. So that could include both enforcement regimes or benefits decisions, where the agency's making individualized determinations about people's either violations or rights to benefits. So one example of that is administrative discovery. So in discovery rights in some agency proceedings, like in removal proceedings and deportation proceedings, or in EEOC investigations, for example, in some tax enforcement proceedings, and even in some benefits applications processes might be able to eliminate the need for large swaths of FOIA requests. I think that would also improve the fairness of these proceedings in significant respects and empower those people most familiar with the records to deal directly with the disputes that arise over them. So if you have an immigration judge who's already dealing with the case, who can also adjudicate the right to records, as opposed to sending a separate track through a FOIA office. So in some ways I can see benefits that accrue to the agency as well. Or in a benefits application, sometimes people are using FOIA to get an agency record that they need to submit right back to the same agency to apply for the benefit. So these are instances where the agency already has the record. A redesign of the application process might allow check a box if we have the form, right? Instead of waiting, sometimes months, while sometimes being denied benefits you're entitled to or in legal jeopardy while you're trying to get records you need just to file your application. And then the last little, I mean, I have sort of a long list in the book but I'll mention one more. And then we can talk about any aspect of it. But I do think in some areas it is worth having just a completely separate request process for certain records that are often needed that are just often requested. And some people say, well, what's the benefit of just not calling it FOIA? Well, sometimes it's because you can just charge a flat nominal fee that will cover the cost of processing without having to go through the individualized process. You can have special dedicated ways of maintaining those records that allow easy polling and easy request and easy filing. The agency can design a request form that gets exactly the data that they need in order to easily pull the record that you want. IRS, for example, has a completely separate system for requesting your own tax returns. None of those requests are processed under FOIA and mostly nobody seems to really be unhappy with that process, which is efficient and dedicated. So I think more agencies could use those strategies for these non-oversight purposes. So this is sort of a sample of ideas I delve into in the book. And I do talk about sort of various specific agencies where I think these strategies would be particularly effective and the kinds of benefits I think we would expect to see from this sort of structural reform. To be sure, you emphasize the positive too. And you mentioned the IRS. You talked about Social Security, some of the other agencies that are doing innovative and creative things that get the information out more efficient, probably save the government a lot of money and certainly gives the individual quicker access. But you also identify agencies where you believe there is a huge potential for proactive disclosure, affirmative disclosure. And the example that comes to mind because you talk about the Homeland Security as being representing half of the FOIA requests in the federal government. And there, well, the chief FOIA officer is an experienced guy. He actually headed the Office of Government Information Services for a while. So he knows the problems not just of his agency but across government. But to the best of my knowledge, he hasn't aggressively and creatively tried to fix the problems with his own agencies through any of these kind of innovative and proactive means. And so the question, you use the word incentivize. What's holding them back? Why does the incentive lie in the numbers game of how many FOIA requests did we answer today in part or in full or in part? As opposed to gee whiz, why aren't we answering any FOIA requests for this category of information? Yeah, I mean, I think that there's a lot of factors that go into that hurdle that agencies face. Let me start by saying one of the things implicit in your question and that I would like to highlight is that a lot of the things that I suggest could be done, agencies have the power to do. They don't need additional authorization or additional statutory grants or anything like that. So why not is a really good question. Why aren't they doing this? So I think there's a number of aspects. Let me start to list some of them. So there is very little incentive for most agencies to look to alternatives as it stands. The routine requests are the easiest to deal with. The kinds that are the hundreds and thousands of requests that are the easiest to fulfill are the routine ones. As a result, agencies fare better in reporting their overall success rates under FOIA when they have lots of routine requests, including faster processing times, higher release rates, fewer administrative appeals and legal challenges. I have uncovered no evidence that agencies consciously avoid non-FOIA alternatives to make their FOIA performance look better. I don't mean to suggest anything nefarious, but there's no question the system is set up with a set of FOIA performance metrics that favor jamming nearly everything into FOIA. And agency officials will sometimes candidly say there's very little incentive to finding an alternative to FOIA. In addition to that, I think FOIA offices, unfortunately, often lack the power to make meaningful organizational changes about information delivery. So on the budgetary front, FOIA budgets aren't set by Congress, but rather the agency allocates a budget from its general appropriations. So FOIA offices are competing with the programmatic budgets and FOIA, frankly, is not typically an agency's top priority. They have a mission and they're allocating their money to serve that mission. In addition to that, the kinds of... And some of these efforts require a big chunk of upfront money, where you won't see those payoffs for quite a while in the reduction of requests or the reduction of processing or whatnot. In addition to that, I think the kinds of alternatives that I'm suggesting often require some amount of effort on behalf of or on the part of, or even restructuring of other agency functions. And the FOIA offices report to me that they may just not have the sway inside the agency to get program offices on board or to convince program officers to prioritize those measures over other important goals. So if we need to restructure immigration adjudication to solve the FOIA office's problem, that's a tough lift within the agency's sort of organizational structure. And then I will say, in every corner of government, I talked with folks in FOIA offices who have great ideas, who are committed to promoting government transparency, who want to serve requesters better and who just don't feel like they're in a position to make the necessary changes. And I think to some degree, this is why Congress sort of needs to step in, in my view. I think that agencies just, agency FOIA offices as they're currently structured are not well positioned to take on some of the biggest of these challenges. And that's, I guess, what I see is the major barriers for them. So it seems to me that as a, well, you were a former member of the Archivist Federal Advisory Committee on FOIA, and I serve on the current committee. And you certainly paved the way for us. And I think the committee is certainly looking at these issues. You gave a talk to us earlier in the year. And I think that's probably highly likely that the advisory committee is going to come out with specific recommendations in this area based on a lot of the work that you've done. And I suspect that we'll be working with you to try to go further than just the generic you ought to explore proactive disclosure, but maybe try to figure out which agencies to start with and who knows how to do these sort of things and where to look for the best examples to get the agencies to climb out of their rot and stop playing the numbers game and develop some new mechanisms. I take it that's consistent with your objectives as well. I think that's right. I mean, I think it's one of the hurdles that I feel like folks identify frequently when I talk about these issues is that there isn't a one-size-fits-all approach for all agencies, right? And so FOIA is a trans substantive statute. That is, it is a requirement that applies to all federal agencies equally big and small, high FOIA request volume, low FOIA request volume from security agencies to benefits agencies and everything in between. And so regulatory agencies are all the same, right? And so I think people feel there is a challenge in designing sort of trans substantive requirements in that regard, though I think there are opportunities to do so and there may be opportunities for substance-specific legislation in certain areas as well, right? Where we just take on the FOIA problem at a particular agency because that one's worth dealing with on its own terms. I think in any conversation has to be a conversation also about resources, right? About thinking about allocating resources to really change the structure of how we do information delivery. And I think if we could elevate that issue by dedicating resources and more broadly thinking about information delivery with sort of non FOIA alternatives, one of the things that would really struck me about digging into this data in this research was that oftentimes I think that agency, everyone, agencies, advocates, everyone really sort of thinks of FOIA as like another thing that agencies have to do that isn't really about their core mission. It's sort of a compliance function or it's sort of a sort of a side requirement, right? That's also good, but like a side requirement. But I just, I was struck by how people, but I viewed all the people making requests for information as giving us a piece of information too. Giving us information about what it is, what government files the public actually needs and wants. And actually that reveals a whole set of agency constituents that we don't usually talk about, right? So we usually think about agency constituencies being regulated industry or the regulatory beneficiaries, or we think about the benefit, the folks who might access benefits as constituents of an agency. But we don't think about information constituents. And actually those information constituents showed to me that the need for information is not a sideshow. It is directly related to most agencies' missions. It is part and parcel with the objectives of accurate benefits decisions, enforcement decisions of accurate regulatory schemes, of promoting marketplace. So I think in my view, if we could sort of find a way to round this out through sort of more congressional authorization that would bolster these issues to a higher level of importance for the agencies and maybe re-center the conversation about how this is more core of an agency function than we normally give it credit for. That's great advice. And I think that everyone who works in this area on all sides, requesters, agencies, journalists, businesses understand the resource challenge. And one of the problems with delay is resources. It's not ill intentions or malevolence or political motives on the part of the agencies. But I don't think there's been much thought given to long-term versus short-term. That's the nature of Washington, of course. Is that, yes, more resources today are needed, but they're justified not just by freeing up for oversight requesters, not just for speeding the process up for individuals, but also because in the long run, it's going to be more efficient and frankly, cheaper for the agency not to have to assign a staff and assign a number and keep track. And if there's a portal, and what is more personal and confidential than social security information and internal revenue information? And if they can devise a way for that information to be able to flow out to individuals, then I don't see why the SEC or the EPA or the Bureau of Land Management agencies can't do the same. I think that's exactly right. And if I can pick up on your point about delay, I think that one of the problems we've been having in the policy space and the law reform space around FOIA and delay is that it often feels like we're constantly addressing delay. Delay, it's not like no one's noticed that there's a problem. And much has been said about delay. Congress is often very focused on delay. Every year or two, Congress will hold FOIA oversight hearings and they will have a group of requester community folks come and testify as to the horrendous problems of delay. And at those hearings, usually Congress calls some poor FOIA officer from the State Department to answer impossible questions about what takes so long. And then sometimes Congress even responds. It's not like there's inaction. So recent reforms to FOIA have involved creating sort of new carrots and sticks for agencies to meet deadlines, including adjusting fee structures and reporting requirements and those kinds of things. And I don't want to diminish that there may be some delay that's truly as a result of agency recalcitrance, but those kinds of reforms suggest that Congress believes that recalcitrance is the primary reason for delay. And that we simply punish late responses or reward the timely ones that agencies performance will improve. And I think my research belies this strategy. The primary reason for delay is not recalcitrance. It is the volume of requests. And I actually think I was grateful that so many FOIA officers were willing to speak with me candidly about their operations and how they work, because my look inside their operations confirmed that what you would suspect, FOIA processing, especially at large volume agencies, it's designed for and it caters to whatever kind of request is dominating the FOIA practice at a given agency. That is, agencies have basically specialized in serving non-oversight requesters, because that's the best majority of folks that they serve. So take DHS, for example, which receives just shy of half of the total government requests every year, right? Somebody there said to me that they're trying to build a system that speaks to the 90% of requests they get and that they're trying to drive down their response rates for the routine requests as far as they can. At Bureau of Prisons, same thing, top FOIA official in charge of FOIA policy for the whole place said, I put a lot of emphasis in processing simple requests quickly, because it's one of the few things that we can control with our metrics. And sometimes this strategy is visible. So at the cave, for example, there's an entirely separate crew of personnel who do nothing but process A-files, non-citizens request for immigration files. Those individuals who are the vast majority of the 250 or so FOIA processors, they're not even trained or qualified to answer any other kind of request, right? Like ones from reporters. And this, I can't blame anyone. This is a completely rational strategy, right? There, of course, the best way to improve your performance overall is to focus on making sure you are really good at what 90% of your job is. And not to focus on the comparatively tiny fraction of requests for journalists. So I think, I do see delay as a very difficult problem, but it is partly because it's not one that is prone to tinkering around the edges. So I think that these congressional reforms that we've been seeing that try to address delay head-on, I just don't think they're effective. And this is why I really am motivated by the idea of more structural and less incremental reform, because I think that it's not just that the high volume of requests are negatively affecting all requesters, though I think they are. I think they are, in fact, disproportionately negatively affecting those requesters that we might think of as the most accountability-oriented requesters, right? Journalists and watchdog groups and others. So just by default and not by anyone's sort of like malevolence, right? So that's sort of what really motivates me about finding a different way of looking at the delay problem. And you deal with the benefits of these accountability requesters in your book in some detail. Multiple stories and examples of not just good news stories, but government reform that arises out of FOIA request process. Pick an example just so that because you and I live in this world and so we know how good FOIA is, but maybe there's some people out there who were talking the benefits and commercial and accountability. And pick one out that FOIA homerun. Absolutely. And I really appreciate the opportunity to talk about these because although once I was on a panel where someone described this as the kind of scholarship that is like FOIA success story anecdote scholarship, I actually did try in the book to, I mean, systematic maybe overstating the word, but more sort of more deeply delve into how journalists are actually still using FOIA effectively. Because one thing that I've found is that sometimes I tell this bleak story and say, well, then why is this worth it? And I say, no, no, there is a lot still that is worth it there. So I did a series of interviews with news media requesters who I found through various indicators to be using FOIA sort of more than average, like particularly effectively. And so in these interviews, actually, I was, excuse me, totally fascinated to find that three big themes emerged for which journalists are using FOIA particularly successfully. And excuse me, I think frankly, to my surprise, these three categories sort of demonstrate that journalists are managing to use FOIA exactly as Congress intended, despite these drawbacks and hurdles that we've been talking about. So the first area is uncovering government waste and misconduct. So this is sort of classic FOIA area, right? Uncovering sort of corruption, as you would imagine. So Kevin Bogartis is a reporter at E&E News. Used FOIA to get documents that show how much Scott Pruitt's extra security detail was costing the taxpayer. Obviously Scott Pruitt was the EPA in a share. Obviously, this was not his only hiccup that ended up happening in office, but it was an important early indicator of problems that he ended up facing, causing a pretty significant public outcry, right? And it was clearly unjustified 24-7 security. A second topic that came up over and over again was reporters who cover influence over government decision-making. So this is about lobbying, patronage, agency capture, things, topics that go to the heart of envisioned oversight, right? So in one example, Justin Elliott, who's a reporter at ProPublica, used FOIA to break the first story linking the Justice Department's request that the census include a citizenship question to a political appointee. So it had been suggested by the administration that, I don't know, this is a career person who thinks that this question would be useful for enforcement of the Voting Rights Act. And he uncovered the first documents showing actually the request came from a political appointee, suggesting a political motivation. That was a complex story involving every aspect of everything, including litigation, but it did come early. And shed light on a pretty important issue of very prominent public concern. And then I'll just mention briefly that the third area that really surprised me where journalists are using FOIA effectively was the area of national security. So this is counterintuitive because the exemptions for law enforcement and national security are very broad and there's sort of a conventional wisdom out there amongst requesters that FOIA just isn't that useful to covering those topics because you can't get anything about the security state. And I don't dispute that there are problems. I've written about some of those problems in the past. But there's actually some security-related agencies who are getting some of the highest percentages of journalist requests. So DoD's Office of the Secretary and Joint Chiefs rang in with nearly 30% of its requests coming from the news media. Secret service more than 20%. Nuclear Regulatory Commission and TSA both have more than 10%. I mean, this where government-wide we're at three. And then I found in my interviews some examples of why. And it seems that FOIA, some of these folks actually talked about it as sort of security-adjacent agencies where they were really able to get some traction with FOIA. So for example, Will Parrish at the Intercept uses FOIA routinely in his reporting. He pointed to an instance where when the Dakota Access Pipeline at Standing Rock protests were going on, the FAA issued a no-fly zone around the area. And the rationale was sort of to protect for security reasons. Some records though suggested that the FAA that he got under FOIA suggested that the FAA actually didn't think it had authority to issue that order. And that the FBI influenced decision-making in that process. Suggesting that the FAA wasn't making sort of a something about flight security, but rather was taking sort of some marching orders from another agency. So, and a final example in that realm is Seth Fried-Wessler published a series of investigative stories at the nation revealing a pattern of negligent medical care in immigrant-only private prisons almost entirely based on records obtained in FOIA. So I think we're seeing some just really powerful oversight purposes that are being effectuated and that we have to be really careful with reforms not to impede those really important uses, but rather to enhance them. So, you've outlined a lot of proposals and suggestions. Some of them small, some of them giant. All right, so now you've got your chance. Magic FOIA wand. This is it. You're going to wave it. Where would you start to realize the title of your book, Save the Freedom Information Act? I like that wand. I'll take one. As I said before, I think the place for action is Congress. Let me let me sort of just briefly outline what I think Congress could and should do as soon as humanly possible. So I think Congress should amend FOIA itself to create a new trans substantive set of requirements that nonetheless I think can operate to allow different sets of solutions at different agencies. Let me explain. So first, Congress should mandate that agencies publish a standard set standardized version of their FOIA logs on an ongoing basis so that we the public actually can see what I'm talking about on an ongoing basis. Who are the requesters and what are they requesting? Because until we have this information, it is really hard to figure out what the solutions are. And I know that sounds like my pet project, but the truth is it shouldn't take us eight years to get 75% of the way to the answer. So I think that they should start there. Then Congress should require agencies in their annual FOIA reports to identify the top three categories of requested records at their agency. Not the top three individual records. We already have that problem, but the top three categories of records. And then Congress in the statute should specify a menu of options, as I've sort of outlined here today, and require agencies for each of their top three categories to analyze whether one of those options were alternatives to FOIA might be feasible in their FOIA report to do that analysis and to either document their efforts to implement those alternatives or explain why those alternatives are not feasible. I think then lastly, Congress should make a private right of action so that you can bring a lawsuit to enforce that obligation so that we would review agencies' decisions not to engage alternatives under, I would say, an arbitrary and capricious standard. I don't, you know, this is going to be a discretionary area that's difficult for agencies, but I think some kind of holding to account is necessary because I think we have to have agencies have just detailed justifications for why they can't implement these. And then finally, it's resources. Congress has to fund this effort, right? They have to fund this effort in order to make that happen. And I think in my view, this would go a really long way to saving FOIA from sort of buckling under its own weight. Terrific ideas. And I'm going to carry those to the FOIA advisory committee's legislative subcommittee because I think that we haven't really focused on the reporting issue. I do want to mention, you give very short shrift, but you mentioned that FOIA isn't the only sort of democratic oversight mechanism that we have, whistleblower protection, congressional oversight, and obviously the free press to begin with are three important avenues. And so I think that FOIA plays a major role in holding government accountable, but it's not the only one. And I know your current research is focusing on administrative mechanisms that might be developed to provide an alternative to litigation. We didn't talk about litigation until you brought up that last subject of a private right of action. And then I thought, ah, there's Margaret, the FOIA litigator that her first job was going to court. And so you're returning to the fold to see litigation as a way of enforcing a congressional mandate. And I can understand that. But give us a preview of your next book. What is your thinking on the subject of alternatives to litigation? I like your optimism. I'm still trying to survive this book, Tom. But yeah, this is an issue that I'm starting to turn to, and I appreciate the opportunity to sort of test out a little of my early thinking here. We have relied in this country from the very beginning. Congress recognized just the extreme importance of having independent review of agency decisions to withhold records. But they placed that review in the federal courts. And in fact, strong review, de novo review, unlike most administrative decisions. With attorneys fees. Sorry? With attorneys fees. With attorneys fees. Yeah, so it seems great. But actually it's just very hard for people to get to court. It's a high hurdle. Hiring a lawyer, navigating a judicial process, a federal lawsuit. Most people can't afford to do it or can't figure out how to do it. And, you know, that includes journalists, especially with sort of the changing nature of the news media. So I am working on, and I will also say in this regard, we have become outliers in the world. So most sort of newer transparency laws, including some of the most celebrated public records laws in the world, have a model after having an independent commission, you know, sort of an independent agency basically that can adjudicate disputes between requesters. But with strong independence and binding order making authority, that is they can make a binding order like a court for an agency to release records. And we don't have that here. So I am looking at these other models and interested in studying them. You know, I think having OGIS's mediation services has been a really great step in the right direction. And maybe sort of a model that we can start to build off of here. So that's sort of where I'm going. I know we're nearly at time, so I don't want to go on too long about things that are still in the works, but I will keep you posted on where I end up on that. I think, you know, one way it does intersect with this book is that journalists really highlighted to me just the value of going to court when they could find representation, how important that was. And many of the journalists I spoke to, the reason they found FOIA useful was because they had found some way to get represented and fight these battles in court. Journalists who can't do that aren't using FOIA as much. And that's really an area we need to keep looking at. Well, that's terrific. I want to say that OGIS, the Office of Government Information Services, is our host tonight along with the archives itself. And I do believe that they're performing a very important function, but it's a limited one because Congress only gave them a limited function. And the extent to which they continue with dispute resolution, they continue with trying to identify areas to recommend to Congress to improve, and the agencies to improve the processes and perhaps additional resources and even additional authority will be in the cards for OGIS and thank them for their support in this program as well. So we have reached six o'clock and I appreciate your taking the time and your delightful ability to bring FOIA issues to life. Sometimes I think, well, what a wonky subject for me to have been engaged in for now. Well, clearly before you were born, but I can see, I feel like I'm passing the baton now because your insights, your enthusiasm, your efforts are clearly going to help us pave the way for saving the freedom of information. Thank you so much, Tom. Thanks to OGIS, to the Archives, to the Archivists for having us tonight.