Presumption of Openness Still Unrealized 10 Years After FOIA Improvement Act

A recent — and somewhat frustrating — experience with a FOIA request prompted us to take a closer look at how the Act is being implemented.

As background, FOIA was enacted in 1966 to provide transparency into governmental actions and to promote accountability for those actions. The Act has been amended several times in the past 30 years, most recently in 2016. The FOIA Improvement Act of 2016, which was passed by Congress, codified a "presumption of openness." As amended, FOIA now provides that an agency may withhold information in response to a FOIA request only if it reasonably foresees that the disclosure would result in a specific identifiable harm that is otherwise protected by a FOIA exemption.

This presumption has yet to be fully realized.

There has been a dramatic increase in the number of FOIA requests filed in recent years. Between 2021 and 2024, the total number of FOIA requests submitted to federal agencies almost doubled from over 800,000 in 2021 to over 1,500,000 in 2024.

At the same time, there has been an equally dramatic increase in the number of requests that are "backlogged." That is, the request has not been resolved within the 20 working days required under FOIA.

Furthermore, in 2024 only 12 percent of FOIA requests were fully granted, another 38 percent were partially granted, 3 percent were denied in full, and the remaining 47 percent were closed for procedural or administrative reasons.

There are several reasons for these trends. The increase in requests has largely been driven by individuals seeking immigration records. The delays in responding to requests also are due to increasingly complex requests, a lack of FOIA staff at agencies, and the demands placed on FOIA staff to respond to FOIA litigation. And, as for the limited number of requests that are fully granted, there appears to be a culture at some agencies, particularly among senior personnel, to rely too heavily on discretionary exemptions and not give sufficient weight to the foreseeable harm standard.

Reversing these trends should not require another amendment to FOIA. Instead, Congress should commit to providing federal agencies with sufficient funding for FOIA staff and for technology systems to respond to requests on a timely basis. Additionally, through oversight hearings, Congress should insist that agencies adhere to the interpretation of the foreseeable harm standard in a case decided by the DC Circuit in 2021. In that case, Reporters Committee for Freedom of the Press v. FBI, the Court stated that agencies should withhold information only if it would, not could potentially, cause foreseeable harm.