Disclosure about Disclosure

Margaret B. Kwoka, FOIA, Inc., Duke L.J. (forthcoming 2016), available on SSRN.

Congress may be gridlocked on many issues, but both parties are working hard to strengthen the Freedom of Information Act. Motivations differ, of course. According to the New York Times, Republicans are displeased with the State Department’s response to requests for then-Secretary of State Hillary Clinton’s emails while Democrats favor a stronger transparency statute.

Margaret B. Kwoka’s forthcoming article, FOIA, Inc., in the Duke Law Journal already has a place in the policy discussions (and in the NY Times). It should also have a place in research and teaching in Administrative Law. I am a strong proponent of teaching something about FOIA in the core Administrative Law class, focusing on its potential use as an oversight mechanism and as an information tool in the many cases that are excluded by the Federal Rules of Civil Procedure and the presumption of regularity from discovery. I warn students, however, that they should not be swayed by tales of disinfecting sunlight, mentioning briefly old studies about the use of FOIA by private parties to get information about other private parties.

My warning has not been strong enough. From considerable original empirical work, Kwoka supports three important points. First, commercial requesters dominate in FOIA practice. Second, some of these requesters are taking information obtained from FOIA and making a profit selling the information. Third, the fees agencies take in pay only a small fraction of the costs of processing FOIA requests. (Kwoka also argues that these realities have disconcertingly crowded out media requesters—that’s a more contested and less interesting (to me) point, so I do not spend time on it here.)

Empirical work takes time. It takes even more time if you collect your own data. Kwoka requested FOIA logs from nearly two dozen agencies, all of whom had reported more than 1,000 requests in FY 2013. Only six of those agencies provided “complete data in a usable form,” so Kwoka turned to an in-depth examination of the Defense Logistics Agency (4,420), the Environmental Protection Agency (9,737), the Federal Trade Commission (1,538), the Food and Drug Administration (10,167), the National Institutes of Health (1,198), and the Securities and Exchange Commission (12,091). The number of requests to each agency is in parentheses.

From her careful, detailed look at these logs, Kwoka unearths some fascinating insights. To name some important ones:

  • Although a smaller FOIA operation, all but four percent of DLA’s requests were categorized as commercial. Day & Day, one information reseller, charges $1800 for an annual subscription to an online database of FOIA documents from DLA (specifically, procurements and contracts).
  • Nearly eighty percent of EPA’s requests were submitted by commercial requesters. Compared to other agencies, frequent requesters were, well, less frequent. Only six sources made more than 100 requests and none put in more than 180.
  • By contrast to four of the other agencies, only about one-third of FTC requests fell into the commercial category. Over half of those commercial requests (and twenty percent of all requests) came from law firms. Nearly half of the total requests were made by individuals, almost all of whom wanted information about their own consumer complaints to the agency.
  • Three-quarters of FDA’s requests came from commercial sources. Contrary to what I had been teaching, the “most frequent requesters are not . . . pharmaceutical companies, but information resellers.” These resellers make good money. FDA News charges $997 for a one-year subscription for FDA Form 483s and $117 for a particular form. The only high-volume pharmaceutical requester, Merck & Co., overwhelmingly asked (more than 80 percent of its 373 requests) about others’ FOIA requests.
  • Like the FTC, a little more than one-third of NIH’s requests were labeled commercial. Fifteen percent came from educational institutions.
  • SECProbes accounted for 12 percent of all SEC requests. These 2498 requests from SECProbes were labeled as coming from news media but should have been placed in the commercial category (from impressive online sleuthing by Kwoka). If they are removed from the news media pile, only 309 requests remain in that category.

Agencies are not getting reimbursed for this work. For example, according to Kwoka, the cost of FDA’s FOIA operations came to $33.57 million but the agency collected only $327,075 from its commercial requesters, which make up three-quarters of the agency’s workload. It adds up, with the government paying “nearly half a billion dollars on FOIA.”

Kwoka suggests some possible reforms, mainly placing pressure on agencies to affirmatively disclose more information. The DLA, for instance, could run a fuller database of contracts, including bids and bid abstracts. When the NY Times asked Day & Day about this proposal, Vice President John Day was refreshingly honest: “If they did that, a good part of our business would go away. So I think it’s a bad idea.” In addition, the FDA could put Form 483s on-line.

Disclosure about disclosure has critical implications for our teaching and research as well as for public policy. Kwoka’s important study deservedly has already generated attention in the public sphere. It also deserves a close look by scholars. Along with a new study by David Lewis and (one of my former Ph.D. students) Abby Wood, we are benefitting from some very interesting empirical work on a powerful statute.

Cite as: Anne O'Connell, Disclosure about Disclosure, JOTWELL (May 27, 2016) (reviewing Margaret B. Kwoka, FOIA, Inc., Duke L.J. (forthcoming 2016), available on SSRN), https://adlaw.jotwell.com/disclosure-about-disclosure/.
 
 
Discussion

1 comment
  1. 1

    While Kwoka’s article focuses on the commercialization of FOIA by private information resellers, her data reveals a bigger policy concern, which is the agency cost burden. As a former government lawyer, I think I can safely say that agencies, by and large, have come to view FOIA request fulfillment as a budgetary loss center rather than as a revenue generator or even budget-neutral. This is perhaps the end result of extensive litigation over the reasonableness of costs charged to requestors, which in most cases has strictly limited how much agencies could recoup. Further research may confirm such a causation.

    In any event, it can be inferred from Kwoka’s article that the bulk of an agency’s unrecouped FOIA costs stem from personnel. Even when they are allowed to, agencies are simply not (or not adequately) passing along their FOIA personnel costs to FOIA requestors. My surmise is that because agencies typically do not engage in billable hour timekeeping, there is simply no piecemeal attribution of personnel cost to each individual FOIA request. Indeed, while Kwoka states that “agencies can only charge their ‘direct costs,'” she also notes that “agencies do not keep an accounting of costs they incur per request.” Thus, unless an agency can show that 100% of an employee’s time was spent in fulfilling a particular FOIA request, the agency’s lack of billable hour timekeeping has tied its own hands.

    Kwoka’s recommendation of more affirmative FOIA disclosure, although highly worthwhile for other reasons, will not significantly solve the personnel cost problem. Even if affirmative disclosure leads to a reduction in commercial requests, agency employees must still do the same work of gathering and publicizing the same information as before. Any marginal savings gained from the elimination of duplicative requests will depend on the number of requestors there had been for a certain set of records, not the volume of records in that set.

    While I agree that commercial requestors should bear a greater share of FOIA costs, perhaps in the end what disparity remains simply becomes the price of an informed citizenry.