Former Freedom of Information
Act litigator and now law prof Margaret Kwoka has been writing articles on the Act. Read Margaret's most recent: Unconstrained Deference, Chenery, and FOIA. Here's the abstract:
Litigation
fails adequately to check agency secrecy decisions under the Freedom of
Information Act (FOIA). To vindicate the public’s right to know what
its government is up to, the dynamic of FOIA litigation needs
fundamental change. This Article builds on previous work documenting
that courts routinely defer to agency decisions to withhold records from
the public, despite Congress’s clear mandate for de novo judicial
review. In this Article, a paradox is revealed: while courts do not
effectuate true de novo review, they rely on that statutory standard to
allow agencies to raise claims of exemption in litigation not relied on
in the agency’s response to a request for information. As a result,
requesters end up in a worse position under de novo review than they
would have been if Congress had chosen deferential review in FOIA cases.
Given existing practice, FOIA’s goal of transparency would be best
served by relocating FOIA within a more typical administrative law
paradigm. Chiefly, it contends that the observed deference justifies
applying the Chenery principle to FOIA litigation, which would preclude
agencies from asserting exemption claims for the first time in
litigation. This Article demonstrates that not only can the application
of Chenery be justified doctrinally and theoretically, but also that
the benefits of constraining agency litigation positions outweigh
potential costs, rendering FOIA litigation a more fundamentally fair
process that better advances government transparency.
