The U.S. Freedom of Information Act has morphed into a potent weapon for corporations

The Posse List

6 November 2018 (Washington, DC) – When the Freedom of Information Act (FOIA) was enacted in 1966, it was envisioned as a tool for journalists to facilitate government oversight and accountability. Although the FOIA is still generally thought of in this way, inextricably linked to the news media’s role as government watchdog, this view bears little resemblance to the reality of how FOIA is used today.

NOTE: Under the FOIA, requesters can file suit when information they are seeking is withheld and they have exhausted administrative appeals, or when the agency fails to even respond in a timely manner.

We contacted FOIA Mapper which has the largest database of FOIA logs and which has done the most extensive analysis of those logs and the FOIA industry. The results are not comprehensive, but with a sample size of 229,000 requests from 85 government agencies, it is the largest analysis on the use of FOIA to date by any FOIA vendor.

Nowadays, journalists account for only a small share of FOIA requests:

Since it was enacted, the FOIA’s user base has evolved to encompass a diverse ecosystem of organizations, entities, and individuals who use FOIA for a wide variety of reasons. Its users include lawyers, nonprofits, academic researchers, hospitals, political committees, hedge funds, government agencies, private individuals, and many others.

The biggest users of FOIA are commercial businesses. Including law firms, commercial businesses account for 55.7% of all requests in this sample … a 14% spike over the last two years.

And, yes, since Trump took office at the end of January 2017, there has been a sharp jump in the number of lawsuits filed by individuals and organizations seeking court orders to obtain federal and state government records. Suits brought by the news media and nonprofit advocacy organizations have fueled a significant part of this rise.

But most ominously, as detailed in a New York Times article today (link below), the FOIA has morphed into a potent weapon in legal and business disputes, raising questions about the chilling effects – and costs – they impose on targets who are doing research in controversial or sensitive fields. Although no surprise, really, given harassment seems to be a standard tool across many industries. We still get scores of emails from Posse List members that tell us litigation projects they are on are nothing more than an attempt to crush a competitor.

FOIA is sometimes described as a “citizen enforcement” or “private attorney general” regime. But corporations have now realized they can also turn it into a “personal enforcement” regime.

And to be fair, the New York Times article below concerns the academic world, and the media is rife with stories about academic and research pursuits “mixed” with partisan and industrial and political advocacy.  But the long-term goal here is (to me) businesses using FOI requests to threaten professors at public institutions that could result in the most controversial thinkers staying away from public universities, depriving students and colleagues of exposure to new and challenging ideas.

For the New York Times article please click here.