The Freedom of Information Act (FOIA) has been the subject of increasing controversy. Some scholars, like Mark Fenster in his recent illuminating work on transparency and populism, remain convinced it holds a singular place in protecting democracy and promoting accountability. Others, like Dave Pozen, are concerned it promotes regressive, anti-public-spirited outcomes. While my own work has defended FOIA’s continued indispensability, my research on who uses FOIA and why (upshot, it’s not journalists) is often cited as demonstrating that the law does not deliver the value we hope it will.
However, these larger structural critiques often set aside a nagging practical problem that can, at times, become centrally important: the use of FOIA for abuse and harassment of agency officials. In my own work, I have noted that occasional problems of this natures arise mostly with respect to state agencies, in particular public universities, in a way that it does not tend to at the federal level. But I have largely considered the issue an anomaly not necessarily meriting more structural reform. Still, instances involving alleged abusive FOIA requesters have seemingly been on the rise, moving behind the historic examples of targeting particular research at higher education institutions and now reaching into K-12 educational settings with respect to controversial curricula and, now, election officials. Enter Rebecca Green’s terrific new piece, FOIA-Flooded Elections, which takes on this seemingly intractable problem of abusive FOIA requests in the context of state and local election officials.
In particular, I applaud how Professor Green faces head on the tension between open access laws that eschew any barriers to transparency—and their particular salience for assuring accountability in elections—and the very real threat to the electoral process posed by a deluge of burdensome requests. To begin, she sets out a typology of requests that make up the “hydraulics” of the “FOIA flood” in election offices. This four-part typology is the first time I’ve seen a category of potentially abusive requesters broken down so thoughtfully. She describes “ringleaders” as those who have a public platform and aggressively push claims of election fraud. State activists are those who believe the claims of election fraud, are using FOIA on a personal mission to hold election officials accountable. The “foot soldiers” are heeding calls—in good faith—to file formulaic requests at the direction of the ringleaders and activists, believing they are contributing to democratic accountability. And then the “bad faith” requesters, those who, in response to distrust of election officials themselves, are organizing voluminous FOIA requests to harass particular officials, including seeking their text messages and emails of a personal nature and facilitating what can turn into threatening behavior online and in the physical world. She sums up the problematic nature of the hydraulics as stemming from “the constitutional untouchability of the ringleaders, the earnest motives of the activists and foot soldiers, and the challenges of sorting good faith from bad-faith requesters” —an apt description indeed.
Although those hydraulics seem to create an intractable problem, Green skillfully deploys analogous areas of the law that have had to grapple with similar dynamics: vexatious litigation and discovery abuse. These analogies demonstrate, Green shows, that government institutions must be able to protect their core functions, and that curbing abuse—even when sometimes curtailing fundamental rights such as access to courts—can survive constitutional challenge.
With this insight, Green suggests a suite of possible statutory reforms states could take up to curb the kinds of FOIA abuse that risk undermining our election integrity. She draws on the experience of states that have experimented with clarifying access rights to election records, changing fee structures for requests, providing blackout periods (or at least extended deadlines) right around elections to ensure FOIA responsibilities do not interfere with election preparedness, centralizing administration of election-related requests, and providing more alternative dispute resolution for FOIA requests to avoid litigation. Another set of suggestions focuses on identifying abusive requesters for possible sanctions or penalties, including curbing the rights to file future FOIA requests, a tactic that a few states have employed without apparent chilling effects on journalists or legitimate oversight.
And finally, perhaps my favorite set of her proposals is to ensure greater affirmative disclosure so as to prevent follow-on duplicative requests. As co-authors and I recently documented with respect to affirmative disclosure of agency legal materials, when affirmative disclosure works, it does so by resolving the tension between FOIA burdens and the need for transparency, satisfying the public interest while promoting administrative efficiency. Green’s proposal has this virtue going for it in spades.
The problem of abusive, vexatious, or harassing FOIA requesters is not one that is overwhelming the FOIA system writ large. But Green convincingly demonstrates that it is one that is overwhelming particular election officials and offices. For a statutory right designed to promote democratic accountability, the possibility that it is being weaponized to undermine democracy is of central concern. Without shying away from the problem, Green’s piece takes a big swing at thinking through a set of practical solutions to protect our democracy both on the inside and out.
