[This transcript has been lightly edited for readability and clarity]

Reena Novotnak: This is Footnote Forum, a production of the Law Review at City University of New York School of Law. I’m Reena Novotnak, your editor and host, and I’m joined by my staffers:

Dan Moczula, Rachel Goldman, Cesar Ruiz, Maya Kouassi, Ariel Federow, Shezza Abboushi Dallal, and Andrew Miller.

This year, on the podcast, we will be focusing on the Freedom of Information Act and the Freedom of Information Law, or FOIA and FOIL. Right now, you’re listening the second half of our first episode with Professor Cox—

Professor Cox: Hi, I’m Douglas Cox, and I’m a law librarian here at CUNY Law.

Reena Novotnak: Professor Cox’s research focuses on the intersection between national security and information policy, and we’ve invited him on the show to answer some of our most pressing questions about the nature of FOIL and FOIA. Professor Cox: FOIA was passed originally in 1966 on the federal side,¹ and New York FOIL came along later in 1974.²

They were both created as part of a plan to, sort of, increase government transparency. On the federal side, there had been earlier—under the Administrative Procedures Act—a provision that was designed to do the same thing, but it had been in practice used to essentially deny access to federal records. So, the FOIA litigation of 1966 was designed to expand that access. The history of it has been the history of no matter how they change the law, or how they amend it, agencies will try to find new ways around it and new ways to interpret it. And a lot of the amendments over the years have been to sort of nail down some additional issues that have been coming up in the courts. There was the original ‘66 law;³ it was amended then in, I think, ‘74,⁴ that added some additional things that were going to make it more clear that it applied to intelligence agencies and expanded that scope, which caused a lot of problems. I think it was the ‘74 amendment that then President Ford had vetoed, and then they had to override the veto to get it passed in a law.⁵

Then there have been more recent amendments. There was the E-FOIA Act, which was making it absolutely clear that records include electronic material that is being retained by the agencies.⁶ And then the most recent amendments were also a highlight, in terms of fixing some of the misuse of the fee schedules as I was mentioning earlier—so making it more difficult for agencies to be able to apply fees to requesters, especially after the agencies have failed to comply with the basic precept of FOIA that you provide records within twenty working days.⁷

They also put in an interesting one which for longer-term research is an important limitation, which is one of the most commonly used exemptions is called “(b)(5)”⁸ which is the deliberative process exemption. And the FOIA requester community sort of refers to it as the “withhold anything you want” exception, because within the “deliberative process,” agencies often claim something’s (b)(5) and “well, we can’t release this because it would chill further communications in the future about candid conversations.” But it’s been used so broadly. And also it’s been used over time, so they did put in some restrictions on it that limits it to twenty-five years,⁹ because you had situations like with the CIA, who continues to just hold onto their records. And you can have—they’re claiming that they can’t give you something from thirty years ago because it’s covered by (b)(5), it’s a deliberative discussion that was occurring. And so, they’re at least putting some sort of time limitation on that as well.

Not all of the amendments over time, however, have enhanced transparency. There was a particularly difficult law that was passed in—I think it was the early ‘80s—the CIA Information Act, that basically excludes significant portions of CIA operational records from FOIA altogether.¹⁰ So they’re not subject to FOIA on the basis that those records would almost assuredly be classified. But it has had the effect that then, the CIA categorizes a lot of things under that that maybe should fall under an exception to that rule. So generally, I think the model has been amendments to sort of further refine and improve FOIA, but sometimes it’s also further increasing withholdings.

Andrew Miller: Is there anything that works to open that up as far as that restriction around the CIA?

Professor Cox: No, and in fact the DOD [Department of Defense] has been wanting to get their own sort of similar exception and they keep trying to put it in at various points, [laughter] then it gets kicked back.¹¹ And it is interesting, sort of how in the context of these amendments and bills that come up, because there’s often a FOIA bill and it’s interesting because sometimes you never quite know who the senator or member of the house—there are some of them that really care about FOIA and they will get involved in these things. And sometimes it’s somebody you don’t expect who will sort of knock down something and say “no, they should have that.”

Andrew Miller: Do other countries do this, do you have a sense of the model internationally, you know, how far back does this go?

Professor Cox: Apparently, the first FOIA law internationally was Sweden—they have a Right to Press Act from 1766, so, 200 years before the US.¹² But the US was, sort of, earlier in this process, even though it was 200 years later that we had our own FOIA law. According to the UN, in 1990 there were still only thirteen countries with a FOIA law in some form.¹³ I mean, the UN itself interprets the freedom of information as an important human right, and they trace it back to the human rights documents as a piece of the sort of larger freedom of expression.¹⁴ But now there has been an increased emphasis on it, and there are currently over 100 countries that have a FOIA law in some form.¹⁵ And obviously in every country including our own, there’s a difference between having the law on the books and that law having any teeth and that law being effective as a practical matter, but there has been growth within the recognition that citizens should have a right to information about what their government is up to.

Andrew Miller: And do you have a sense, as far as where FOIA stands presently, with the US, are we an outlier, are we a trailblazer, have other countries caught up or surpassed us with regards to transparency?

Professor Cox: I mean, yeah, I think it depends greatly on the country, and also it can depend on who’s in charge of a country at any given time. I think there has been so much litigation in the US and FOIA and it has developed over time, I think some countries do look to the US as a guide for what would this law look like and how would it work in practice. So, I think in some sense we could be part of the trailblazers, because people look to us as an example. But, you know, there could be countries where the transparency is even better and more efficient than how it’s working here.

Andrew Miller: Do you have a sense on the state level where New York is with FOIL comparatively, like, are we an outlier, trailblazer?

Professor Cox: I mean, I think in New York it happened earlier, so, ‘74, so not too long after FOIA, and some of the other states took longer to get that in. And I think New York FOIL has a good reputation in the sense of—while there are of course problems with it—New York is a little bit more forward-leaning in terms of transparency. And they’re looking at it—you know, the expansion of some of it to legislative materials and there are often, again, bills in New York where they’re looking at how can we improve New York FOIL. So, I think it is on the better end. There are some states that have a much lower reputation for how their FOIA law is administered. There are also some states that have, like, weird restrictions, like, only somebody within the state or only a citizen of the state could submit FOIL requests from those states.¹⁶ Also, some of them use their fee categories somewhat punitively to discourage.¹⁷ But then there are also some other states that have very good reputations. Like Florida has a very strong transparency law that, you know, works quite well.¹⁸

Shezza Abboushi Dallal: On a federal level here in the United States, has the FOIA tool been politicized? Do you feel it’s been influenced by changes in administration, both in the legislation and the executive bodies?

Professor Cox: Yeah, I think that it’s definitely an issue that arises and whenever you have, like, a new president—the attitude of that president flows downward through the executive agencies that are responsible for administering FOIA. And it’s interesting because I think it’s sort of a double-edged sword in certain ways, where—like when President Obama came into office, it was one of his things that he focused on a lot was, “we need to increase transparency and we need to release more documents and more information to make the public aware.”¹⁹ And there were high expectations, and then those high expectations were not always met. And people were like, “well wait, I thought that you were talking about more transparency and it looks like based on some of these statistics that we’re withholding more information than we were before.”²⁰ But there can also be, you know, maybe there was additional requests that were made because there was a feeling of, “oh, this should be more open now,” there was a greater expectation of the amount, and I think that then more people were putting in more FOIA requests and focusing on this more. And which also then, sort of, skewed the statistics because then there was still sort of the need to deal with all of those exemptions and when they applied and when they didn’t. And if there’s an increase in requests, there also then appeared to be a decrease in transparency.

And then in the current administration, obviously, there’s been the opposite of that where the attitude is, “we’re going to withhold these things. Why does anyone need these. The national security, law enforcement. Safety is what’s important here and we shouldn’t be releasing this sort of information.”²¹ And from the top down you have a retraction of this view of where the proper line is on public transparency about things. But, it’s a double-edged sword, because you then end up in situations where there’s also been an increase in FOIA activity, obviously, now, that’s trying to figure out what the Trump administration is doing. And it can go too far—which can actually be helpful to litigants.

So in these situations that we’re watching on television, and when there’s FOIA litigation and things, sometimes the DOJ, in trying to defend the Trump administration in withholding things, is taking positions that are even more extreme and making assertions that are so extreme that, in a funny way, sometimes it can be helpful. Because when you take a much more extreme position—when the judiciary is willing to step in, the judges, who have gone through several administrations and have seen the different arguments made over time, are sometimes very resistant to it and are like “well wait, you’ve tried to make the argument before and then what you were arguing is this. Now you’re arguing something completely different, and I don’t know that you have the support for it.” So, when an administration goes too far, there can sometimes be—the judiciary feels a little bit more empowered and they also feel a little bit more of a need to be a little bit more involved and force the issue in certain cases. So, there can be a positive in encouraging the judiciary to act, under FOIA and FOIL, a little bit broader than they maybe would have four years ago.

But there is definitely a feel that as you move from one administration to another, “what is their attitude going to be towards transparency?” And that just filters down because when you go to that government employee who’s looking at your request and looking at, “should we produce this document or not?” That thing, even though it’s sort of a very high level—the idea of “we are moving towards more transparency rather than less” can influence a decision about, “do I redact this or do I not?”

Reena Novotnak: Do you have an instance of that—cases where an agency makes an extreme argument in order to avoid releasing documents, particularly in the most recent administration?

Professor Cox: I don’t have a specific one off the top of my head, although, the ones that jumped to my mind are the situations where the DOJ is being forced to make a position that is contrary to something the President has tweeted.

Reena Novotnak: Oh, okay. [Laughter]

Professor Cox: This has happened a few times where there’s a FOIA plaintiff who’s like, “well the president said this in the tweet” and DOJ is forced to say, “well that wasn’t an official statement by the president, that was just some tweet.”²² And they are still asserting something that is contrary to what the president has publicly said. I guess that is an example of it. I believe there was an example in the context of some of the drone killing—targeted killing memos where again the government was saying that certain things had not been acknowledged and the court was—I think it was a second circuit questioning—about whether certain material had, in fact, been already acknowledged. And the DOJ was still insisting that nobody had ever admitted that.²³

Shezza Abboushi Dallal: Is there any point in time, any administration in the history of the US that has succeeded in outright cutting off the tool?

Professor Cox: Not since FOIA. Over time there have been, you know, increases in trying to limit it. So like under the George W. Bush administration, they issued an executive order that limited things a bit more and was tightening the screws on certain exemptions and how they were going to interpret things and their presumptions about things.²⁴ And then President Obama came in and undid some of those.²⁵ And you also see the influence of different administrations over time. So, some of the amendments that happened in the 1970s, expanding FOIA, were a result of Nixon and Watergate and the situations of hiding documents. And a corollary to what I was discussing, that like when you have somebody that is acting not in the interest of the government, the Congress and judges can become more emboldened and feel the need to step in. And that was some of the good amendments that we got in FOIA. And also, the creation of the Presidential Records Act was as a result of what was happening during the Nixon administration.²⁶

Shezza Abboushi Dallal: This is something that I think you’ve alluded to multiple times, but the past few decades we’ve seen the executive branch increasingly demand deference to secret or covert operations, particularly in the realm of foreign affairs, I think. And how has FOIA changed accordingly, or has it even?

Professor Cox: Yeah that is one area where it’s very tricky, and I think it is one area where the administration that is in has the ability to negatively affect FOIA in the most bold way which is to the extent that, that is the one area, as I mentioned before, where with the (b)(1) exemption for classified information, that’s the one where the Courts give the most deference to determinations by the administration.²⁷ So, in those circumstances when, especially when we have things that are going on, like the torture program, like the NSA Surveillance program, that do involve some classified information that allows a lot of that to be withheld based on those assertions, and that can be driven from the top about how transparent are we going to be. And that is the one that the president I think has the most effect on.

So, in the context of the torture program, for example, one of the great things that President Obama had done was release—voluntarily, using his power as the president—is to release some of those memos, the DOJ memos, about the justification for the torture program.²⁸ And what is good about FOIA and the national security context is once something gets released then you can sort of use that as a bootstrap for other things. So, once the government has formally acknowledged something that was formerly classified, then that information that might exist in other documents that were previously being withheld—those documents can be looked at again. And in the ACLU v. DoD case that was involving torture documents, they did this expertly. As new information was coming out, they would go back and argue it again and say, “you were withholding these documents but those documents relate to this thing that has now been acknowledged.”²⁹ And they got more the next time, and so you see these different even versions of the same documents of internal CIA records. The first time it was produced there was hardly anything that wasn’t redacted. And then after additional litigation, it came and it had more redactions, and then two years later it has even fewer redactions. So, to the extent that information gets out, that is information that then can be used to sort of go back and revisit and get more transparency.

And also, the courts have challenged these situations. So, when there are situations where something has been acknowledged by the government, still sometimes the agency will say, “oh this still has to be withheld.” And the courts in those circumstances, when there has been a public acknowledgement of something, that’s when they start to get a little bit more involved and will say, “actually, I’m looking at this, isn’t this the same thing that was acknowledged publicly by the president?” to sort of push them on these issues where they would normally give a lot of deference.³⁰

Shezza Abboushi Dallal: Do you feel like this executive practice is an overreach of the executive’s powers?

Professor Cox: Yeah, I think there is too much classification and—you know, this is not a unique position that a lot of people within government and formerly within government—that there is this default to classify things. And then I think in the context of FOIA, there is a couple of things at work: one, could there be high-level policy things about “well we don’t want anybody to know this.” The other part of it is also just, “if it’s classified let’s just not touch it. Let’s not look through the issue about whether or not this is really properly classified or not, and if somebody put classified on it, let’s just assert that its classified rather than taking a closer look at it and really digging into it about whether all of the information here is or ought to be classified.” And so, there is both an inertia about it, and there is just, sort of, a high-level policy thing about what should be our emphasis toward transparency.

Dan Moczula: So, you’ve talked a little bit about victories for liberals and the left for using FOIA for government transparency in the ACLU’s requests and advocacy around America’s drone war and torture programs. Can you give examples of FOIA victories from the right?

Professor Cox: Yeah, I think there’s some organizations—it’s interesting because FOIA itself, I guess I would call it a neutral thing. But then there’s the question of who’s using it, what are they requesting? And then also, the records that are requested go to the organization itself or to the requester, and what are they choosing to put out? So, again, sometimes the distinction between right and left is a little bit tricky, but Judicial Watch is one that has been really successful.³¹ It’s an organization that has—during the Clinton Administration,³² during the most recent election, they were very active in the Hillary Clinton emails.³³ And they are unstoppable in a sense that they will make a request, they will follow up on every single request, they will file a lawsuit. And because of who they’re focusing on, and then their success at it, and their ability to go through those records to find pieces of it that support some of their positions that they have, they’ve been one of the more successful organizations that I think is generally considered to be on the right.

Dan Moczula: Do you see a difference between advocates who are genuinely interested in open government and government transparency and people who are more cynically using it for a partisan end?

Professor Cox: Yeah, I see both of that which is—it’s just similar in my mind to the oversight committees within Congress when you have changes and flips in administration and who controls Congress. So, when one party owns the Presidency and the other party owns the oversight committees, suddenly the oversight committee—and the people on the other side—are very focused on transparency and the federal records laws and compliance with things. And then the other ones are saying, “this is just a witch hunt.” And then it gets flipped, and then there’s a new President and the other side has the oversight committee, and then suddenly these issues become important. Now that’s a little bit—even myself—a little bit cynical. But then there are also organizations that are focused on transparency generally and are trying to get as many records as they can and make them available regardless of whether the information in them supports one narrative or another.

Dan Moczula: I’m trying to understand your personal belief in open government—do you just believe in open government regardless of who the administration is?

Professor Cox: I would say yes. I mean, I think I would like for something like FOIA to be administered in that way—that I generally feel like the more information and the more transparency the better. Obviously people will take pieces of it to make different arguments but I think more information being out there— whether it is perceived as good or bad for one side— is generally better than a situation in which transparency is much more selective in a way that is designed to support one side or the other.

Dan Moczula: So, you don’t necessarily—because for me, I can see how open government can fit in both ideological projects. If I’m right-wing, I want to have an open government because I want to track every single every single tax dollar to make sure there is no government waste. And if I’m on the left, I want to make sure the government isn’t using its discretion to harm vulnerable groups. Do you sort of swing towards one or two of those views versus, “open government is just the medium through which the political process should play though?”

Professor Cox: If I had to pick one, I’d pick the latter. I think we need to create structures and procedures and have a FOIA and FOIL that try to maximize transparency with the idea that—or with the understanding and acceptance that—sometimes that will be used in ways that we don’t agree with. And sometimes the effect of it may not be something that we like. But rather than affecting the open government, it’s more of a question of, “what are our structures and what are our other ways of debating things and examining things and understanding things that can sort of ameliorate—or at least highlight—when things are being property contextualized, or when things are being taken out of context to manipulate the narrative.”

There is always a problem—and I think FOIA sort of flows into this, and then it connects to this general problem we have—about information being mediated or not mediated generally. Where the idea that raw documents, raw emails, raw underlying documents that maybe are just a piece of the picture are being made fully publicly available, which allows everyone to cherry pick what they want out of it. Versus the old school way of—there’s journalists and they get some access to some information and then they are trying to put it into context with interviews with experts in order to then mediate a more contextualized picture of it. And obviously, that’s just happened more generally in terms of everybody getting information from the sources that seem to agree with them. And that could be more limited, and in some ways that’s good that not everything is mediated for us, but in another way, it can lead to a bunch of things being taken out of context. And I think also there’s a larger picture. In the context of the Clinton emails for example, there was also just an emphasis on it and the proper, you know, “was there an issue here?” is one question.³⁴ But how should that issue be seen in the larger picture of what’s important, and how it reflects on who should be elected President, is a much bigger topic on either side.

Dan Moczula: And do you have any qualifications or concerns about government transparency, open government, beyond exemptions that are already in the FOIA law? Are there other kinds of concerns that you have about the overreach of transparency?

Professor Cox: I mean I think that the exemptions themselves—again, as they are written— I think they generally follow a reasonable thing, but I think it’s just where the devil’s in the details in terms of the really tricky and grey areas is when you are trying to apply, you know, “what is the balance between the public interest in something and someone’s privacy in a given situation.” And I think those can create situations that are really tricky about— “well there’s some public interest in the disclosure of this information, but there is also a right to privacy of individuals that can arise.” And what the right answer is on any given thing can really be problematic.

Dan Moczula: What’s your favorite government document that you have ever received? [laughter]

Professor Cox: Ah. So, I have to say, in some of my research I was trying to figure out where the documents that the United States seized from Panama in 1989—where they were. And I had tried this little trick—which is outside of FOIA—where I was writing an article for a journal called the American Archivist³⁵ and I want to just find someone who was willing to give me an answer about where these things were. So, I called various places and I said, “I’m writing an article for the American Archivist,” and some places assumed that I must be press because they’re like, “we don’t know who this American Archivist is. Some sort of organization? Some sort of publication?” And so, there was a couple of public affairs offices that actually answered my questions. And then the Defense Intelligence Agency [“DIA”], who I’ve almost never successfully gotten any useful documents out of through FOIA, they specifically said—I was like, “I think you guys have scans or copies of these,” and they came back to me and said “we have no scans or copies of records seized from Panama.” And I said, “okay that’s really clear,” and I even followed up, making sure and they were answering my question and they said, “yes, we have none.” And then my saviors the National Archives—they had various FOIA requests with them and they were bouncing these FOIA requests around to various places.

So, this became my favorite thing when it was produced two years later. It produced a memo that the month before the DIA was denying they had these records—it was a memo of a very high-level ongoing discussion between the DIA and other agencies about what to do with the records of the Panama records. [laughter] So it was like a perfect situation of, like, they bold-faced were lying to me when the very senior people were talking about this very issue at that exact same time. So that was satisfying although, ultimately, I got no mea culpa for the DIA or anything else from them, but I have to say that.

Dan Moczula: Thank you.

Reena Novotnak: I have a follow up question. So, are you worried that—to avoid making government records—agency heads will say, “oh let’s just have this conversation over lunch where you know, we’re not creating a record, you know what I mean?”

Professor Cox: Yeah, that’s definitely a problem and it’s an interesting thing where—it goes back to that distinction between the private and public—where private companies, that sort of thing: “there’s something sensitive here, let’s not put this in writing.” Agencies do that, but under the law and on the federal side and the state side there is actually a duty to document. And the federal one says, you know, “agencies shall create and maintain records sufficient not only to protect the rights of government but to protect the rights of people affected by government activities.”³⁶ And that gets ignored sometimes, and it’s something that has been interpreted by the National Archives in a broad way. They did a deep dive into CIA records since the late ‘90s and there were situations where they were saying, “you make these types of decisions, but we don’t see any records about them,” and they were like, “well, we normally do that over our secured line or in person,” and they were like, “no, no if you you’re going to have a substantive conversation and make a decision on behalf of the agency—if it’s done over the phone, if it’s done in person—you need to create a memo about that conversation and the decision that was made.”³⁷ And they enforced that.

And I think it, again, goes back to the importance of the FOIA exemptions. That’s why the exemptions are there—so that the agency should feel obligated to create and document what they are doing with the understanding that if the information falls into one of those categories, if it is legitimately sensitive because it is one of those categories, then it would be withheld.³⁸ But the idea is the agency employees are taking that upon themselves to create an extra level of problems by saying, “we’re not creating a record for that.” That’s really something that needs to be addressed, and people need to be told that that’s not the right answer. I’ve worked in the federal government, I’m currently an employee of the state of New York, and from my perspective, if I was ever told “don’t write this down,” I would go back to my desk and create a document documenting all the stuff that they told me not to write down and documenting who told me to not write it down. But that’s me. [Laughter]

Reena Novotnak: And then I have one more follow up question about context. So, it sounds like one of the maybe problems of open government is this lack of context that people are creating. How can that be ameliorated? Whose job is it to create context, and how can we create context for the documents that we are getting which are so vast?

Professor Cox: Yeah that’s tricky. I mean, I think there’s a bigger issue here about how as we as a society consume information and where we are getting it from and who we could or could not trust to contextualize things for us. And some of that is about personal decisions that we make. I think that the context specifically in—and this is a bit more limited—in the context of FOIA, one part of it is to keep at it. I mentioned the National Security Archive before and their way of approaching FOIA is I think how we all should approach FOIA when it’s about something that we’re trying to develop facts around: they just keep at it. So, they make an initial request and they get some documents and they recognize that some of these documents—that this isn’t the whole picture. Those documents may reference other documents, or those documents reference an office, and they submit another FOIA request and they get additional material, and then they seek cross records, and they just keep building so they’re creating the record. Now, obviously if we were approaching the issues that we are FOIAing in that way and we had the time to do that—I think it does create a much fuller picture. And when you look at something—you know, they have these briefing books on the National Security Archives website about various topics they really developed the record on, and you do get that sort of nuance of “the government had this issue,” and they really look at all of these issues and then, “these were some of the decisions that were made.”³⁹ And it gives a much fuller picture then what would have been the case if they relied on the initial documents that they got. So, one of the things that we’ve learned over time is that it’s very hard to get rid of every single copy of a document. And so even if there is a problem of an agency sanitizing things, you find some sort of reference to another document and another thing, and then they thought they didn’t have any more copies of this, but then it’s in a different office. So, I think if keeping at it can help add some context, but the larger issue is beyond the scope of my knowledge [laughter] in terms of how we can really—it’s just in the way we consume information.

[Music]

Reena: You’ve been listening to part one of two of the first episode of Footnote Forum. I’m Reena Novotnak, editor, host, and theme music composer. Thanks to staffers Dan Moczula, Rachel Goldman, Cesar Ruiz, Maya Kouassi, Ariel Federow, Shezza Abboushi Dallal, and Andrew Miller. Thanks also to our Editor in Chief, Audrey Juarez, and the rest of the managing editorial board. Special thanks to Professor Cox for sharing his expertise with us. Catch us next time for an interview with CUNY Law Students Joanna Lopez and Jacklyn Mann on their work at the immigration detention center in Dilley, Texas, and the role that transparency and open government has to play in promoting safety and accountability in the immigration context. Until next time, I’ll leave you with a quote from a famous Supreme Court decision, this from Houchins v. KQED, Inc. In Houchins, the court held that members of the press have no special first amendment right to access prison facilities, even to investigate abuses.⁴⁰ In his dissent, Justice Stevens wrote: “Without some protection for the acquisition of information about the operation of public institutions such as prisons by the public at large, the process of self-governance contemplated by the Framers would be stripped of its substance.”⁴¹

1. Freedom of Information Act, Pub. L. 89-487, 80 Stat. 250 (1966) (codified as amended at 5 U.S.C. § 552 (2016)).
2. Freedom of Information Law, 1974 N.Y. Laws chs. 578-80 (codified as amended at N.Y. Pub Off. Law §§ 84-90 (McKinney 2019)).
3. Freedom of Information Act, Pub. L. 89-487, 80 Stat. 250 (1966) (codified as amended at 5 U.S.C. § 552 (2016)).
4. Privacy Act of 1974, Pub. L. 93-579, 88 Stat. 1896 (codified as amended at 5 U.S.C. § 552a (2014)).
5. See Veto Battle 30 Years Ago Set Freedom of Information Norms, Nat’l Sec. Archive (Nov. 23, 2004), https://perma.cc/32LM-CC7U.
6. Electronic Freedom of Information Act Amendments of 1996, Pub. L. 104-231, 110 Stat. 3048 (codified as amended at 5 U.S.C. § 552 (2016)).
7. OPEN Government Act of 2007, Pub. L. 110-175, 121 Stat. 2524 (codified as amended at 5. U.S.C. § 552 (2016)).
8. 5 U.S.C. § 552(b)(5) (2016).
9. FOIA Improvement Act of 2016, Pub. L. 114-185, 130 Stat. 538 (codified as amended at 5 U.S.C. § 552 (2016)).
10. Central Intelligence Agency Information Act, Pub. L. 98-477, 98 Stat. 2209 (1984) (codified as amended at 50 U.S.C. § 3141 (2010)).
11. Steven Aftergood, DoD Seeks New FOIA Exemption for Fourth Time, Fed’n of Am. Scientists (May 1, 2018), https://perma.cc/RZ9L-UH4A.
12. Jonas Nordin, The Swedish Freedom of Print Act of 1776—Background and Significance, 7 J. Int’l Media & Entertainment L. 137, 137 (2017).
13. Freedom of Information, UNESCO, https://perma.cc/3Q37-687Q (last visited Nov. 8, 2019).
14. See G.A. Res. 217 (III) A, Universal Declaration of Human Rights art. 19 (Dec. 10, 1948) (“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”); see also Organization of American States, American Convention on Human Rights art. 13, Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 123 (“Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one’s choice.”).
15. UNESCO, Powering Sustainable Development with Access to Information 4 (2019), https://perma.cc/NM5Z-EJ9L (noting that 125 countries have adopted right to information, freedom of information, or access to information laws of some kind).
16. E.g.,Virginia Freedom of Information Act, Va. Code Ann. § 2.2-3704(A) (2017) (permitting records requests from journalists and citizens of the commonwealth).
17. See, e.g., Nathanael King, Texas Wants Over a Million Dollars for Records Regarding Sexual Assaults in Prisons, MuckRock (Aug. 18, 2017), https://perma.cc/V8CP-AME2 (“Prohibitive costs block transparency in what has been called the ‘prison rape capital of the U.S.’”).
18. See Fla. Stat. § 119.01 (2005).
19. Memorandum on Transparency and Open Government, 74 Fed. Reg. 4685 (Jan. 26, 2009) (“My Administration is committed to creating an unprecedented level of openness in Government.”).
20. Ted Bridis, Obama Administration Sets New Record for Withholding FOIA Requests, PBS News Hour (Mar. 18, 2015, 3:43 PM), https://perma.cc/4HS7-FXS6.
21. Ted Bridis, US Sets New Record for Censoring, Withholding Gov’t Files, AP News (Mar. 12, 2018), https://perma.cc/96YM-5T5Q (“In more than one-in-three cases [of FOIA requests], the government reversed itself when challenged and acknowledged that it had improperly tried to withhold pages. But people filed such appeals only 14,713 times, or about 4.3 percent of cases in which the government said it found records but held back some or all of the material.”).
22. Josh Gerstein, Judge: Trump Statements Muddle Freedom of Information Suit for FISA Warrants, Politico (Jul. 31, 2019, 12:02 AM), https://perma.cc/RH4Z-DR7J.
23. ACLU v. CIA, 710 F.3d 422, 430 (D.C. Cir. 2013) (“Given these official acknowledgments that the United States has participated in drone strikes, it is neither logical nor plausible for the CIA to maintain that it would reveal anything not already in the public domain to say that the Agency ‘at least has an intelligence interest’ in such strikes.”).
24. Exec. Order No. 13,292, 68 Fed. Reg. 15,315 (Mar. 25, 2003).
25. Exec. Order No. 13,526, 75 Fed. Reg. 707 (Dec. 29, 2009).
26. Bruce P. Montgomery, Presidential Materials: Politics and the Presidential Records Act, 66 Am. Archivist 102, 102 (2003).
27. 5 U.S.C. § 552(b)(1) (2016).
28. Press Release, Statement of President Barack Obama on Release of OLC Memos, White House Office of the Press Sec’y (Apr. 16, 2009), https://perma.cc/W6WC-5JLL.
29. ACLU v. CIA, 710 F.3d 422, 426 (D.C. Cir. 2013) (“[W]hen an agency has officially acknowledged otherwise exempt information through prior disclosure, the agency has waived its right to claim an exemption with respect to that information.”).
30. Gerstein, supra note 22.
31. Judicial Watch, https://perma.cc/H55H-RSS8 (last visited Dec. 20, 2019).
32. David Segal, Pursuing Clinton Suits Him Just Fine, Wash. Post (May 30, 1998), https://perma.cc/ZN6A-SKUG.
33. Jonathan Mahler, Group’s Tactic on Hillary Clinton: Sue Her Again and Again, N.Y. Times (Oct. 12, 2016), https://perma.cc/58HX-56X2.
34. See John Wagner, Hillary Clinton,Seated at a Mock Resolute Desk, Reads Her Once-Controversial Emails at a Venice Art Exhibit, Wash. Post (Sep. 12, 2019, 10:31 AM), https://perma.cc/R6KY-WZXS (describing an exhibit by Kenneth Goldsmith, consisting of a printout of all of Hillary Clinton’s emails displayed on a replica of the Resolute Desk). Clinton visited the exhibition and then tweeted a picture of herself with the caption, “[f]ound my emails at the Venice Biennale. Someone alert the House GOP.” Id.
35. Douglas Cox, National Archives and International Conflicts: The Society of American Archivists and War, 74 Am. Archivist 451 (2011).
36. 44 U.S.C. § 3101 (1968) (“The head of each Federal agency shall make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency and designed to furnish the information necessary to protect the legal and financial rights of the Government and of persons directly affected by the agency’s activities.”).
37. See Nat’l Archives and Rec. Admin., Records Management in the Central Intelligence Agency 10 (2000) (“Employees and contractors are required to create records that document their activities including records of meetings, conversations, telephone calls and other forms of communication that affect agency business, policy, decision making, and commitments.”).
38. 5 U.S.C. § 552(b)(1)-(9) (2016).
39. Briefing Books, Nat’l Sec. Archives, https://perma.cc/L6T6-NT4H (last visited Nov. 13, 2019) (“‘Briefing Books’ are one-stop resources covering a full range of topics in U.S. foreign policy. Containing from 5 to 100+ documents, each briefing book features an introductory essay, individual document descriptions, related photo or video content, plus links for further reading.”).
40. Houchins v. KQED, Inc., 438 U.S. 1, 15-16 (1978).
41. Houchins, 438 U.S. at 98.