In recent years, we've entered something of a golden era of government transparency—or at least, a golden era of journalists and interested citizens filing information requests with government agencies. Freedom of Information Act requests have increased greatly as the internet and services such as Muckrock, a tool that fills out sample language for information requests and then tracks them, have made filing easier. But there's one major problem: Federal agencies use lots of different tactics to avoid actually releasing all sorts of documents, and few journalists actually know how to fight back against the system.
It's not entirely their fault: Enforcement of different FOI "exemptions" varies by agency and often depends on which specific FOIA officer handles the request. At the state level, where a patchwork of "sunshine" laws govern what records are public well, things are even more of a mess.
"Even when public records laws are clear, the different exemptions are typically found in other bits of the legal code," Michael Morisy, who founded Muckrock, told me. "A dairy bill might include an exemption for certain types of state dairy records or something, so what happens is you have a Swiss cheese situation—there's holes everywhere."
Dairy jokes aside, Morisy and Muckrock have decided to help journalists and other freedom of information champions navigate FOIA exemptions with a new project that will catalog every exemption cited by agencies in the United States, as well as ones that are hidden in a patchwork of FOI laws.
There's a few reasons for doing this, Morisy says. By creating a central repository for FOI exemptions, Muckrock is in a better place to challenge them and to effect change. If most states, for example, allow FOI requesters to obtain police body camera footage but a couple exempt that data, Muckrock and others can push for greater transparency in those states that don't allow it by floating model FOI legislation with friendly lawmakers. Crowdsourcing data on which FOI exemptions are most common will also help Muckrock identify problem areas—if certain states are inappropriately claiming that certain records are part of "internal deliberations" (a common FOI exemption in many states) when they shouldn't be, there may be grounds for a lawsuit or a public shaming campaign that could help change things.
As someone who uses Muckrock on a daily basis, the most exciting part of the project for me is an upcoming tool that will allow journalists to more easily file and follow up on appeals to FOI exemptions. Most agencies abuse and overuse exemptions they're not supposed to, and it's common for FOI officials to only partially respond to a request in hopes that the journalist will just go away. Unfortunately, this tactic usually works.
FOI deadlines are unfortunately quite meaningless—agencies can delay responding to a request in any number of ways. When you do finally get documents back, a common response is to just be happy with what you've got and move on. Unless you're particularly well versed in a particular exemption, it's hard to know how to even go about filing an appeal a lot of the time.
"People often run into very specific exemptions, and other times they run into backdoor exemptions or rejections where an agency will charge really high fees or deny part of your request. There's a lot of methods that aren't an outright rejection but still keep the public cut off from records," Morisy said.
The plan is to use the exemption database to create this appeal tool, which will have sample language for each specific exemption. It's unfortunately a pretty massive undertaking—Muckrock hopes to have its exemption database and appeals tool functional by the end of the year, and it hopes to have both fully completed in a year and a half. When they do eventually launch, the tools will be much appreciated by the FOI community.
"The number one piece of advice we get from FOIA experts is that, if you want to get documents out of the government, appealing is critical," Morisy said. "