Herz: Place all non-exempt government records on the web.

Federal Freedom of Information legislation was signed into law by President Lyndon B. Johnson in 1966.  State imitations were enacted in the years following.  Since then, exemptions have expanded dramatically, but legislative updates and reforms have been few and far between.

Even worse, secretive bureaucrats have found ways to avoid, delay and/or overprice disclosure.  There are few meaningful sanctions in the legislation to discourage bureaucratic evasions.

It's time to update FOIA to take advantage of improved technology, encourage proactive archiving online and put some teeth in compliance requirements.

Prof. Michael Herz of the Cardozo Law School concluded in a 2009 treatise that in actual practice, innovations in the disclosure of public records by federal agencies have outpaced legislation.

Herz wrote:

"The federal government is making unprecedented amounts of information available to the public. To the extent this transformation has occurred, it is the result of societal and technological changes--in particular, the overwhelming movement of society, and government along with it, on line. The law has had very little to do with it. The law lags. (p. 2)

"FOIA falls miles short of being a complete window into the government. A great deal of information is unavailable, in theory or in practice...the basic model is that a record is released only if and when someone requests it. Agencies need not be forthcoming...
requiring the government to provide records only on request is a hobbling and increasingly unjustifiable limitation. (p. 9)

"Not only is the request-driven approach contentious and time-consuming, it is inherently limited by the fact that the requester, by definition, does not know what the agency has and so does not know what to ask for. Some requests will be unfounded and inappropriately broad. Others will be self-defeatingly narrow, failing to say the magic words to obtain a non-exempt, valuable record that the requester just did not know how to ask for... (p.10)

"...[A]gencies have increasingly placed information on their websites. But they have not yet taken the bold but no longer unthinkable step: simply place all non-exempt records on the web... Nothing is stopping them." (p. 22)

Cardozo Public Law, Policy and Ethics Journal, Vol. 7, No. 3, 2009

Many government officials have been boasting about speed and transparency in making records available to the public, while in reality their agencies have become slower and more secretive.

U.S. Attorney General Eric Holder made bold promises in recent years, most notably in 2009, about greater government transparency.  A number of studies since then, however, dispel the hope that followed those promises.

We need to bring FOIA into the 21st century.