FOIA Reform We Don’t Need: Blocking Foreigners From Using FOIA

The US Freedom of Information Act (FOIA) system needs plenty of useful reforms to actually work correctly and properly. Despite limited time frames in which the government is required to provide information, they often take years. They regularly redact stuff they shouldn't. Or refuse to hand over documents they are required to. Generally speaking, the government is not a fan of the kind of transparency that is not just required under the law, but necessary for a functioning government that the public trusts.

Of course, rather than fix any of that... we now have Senators Marco Rubio and Tom Cotton, both of whom have been overshadowed by the bigger, louder, more ridiculous culture warriors in their party, planning to limit FOIA requests only to American citizens, permanent residents and US companies.

Rubio and Cotton are pretending that there's a problem here of foreigners clogging up the FOIA system and threatening our national security. Except that's nonsense. There's already a FOIA exemption for national security reasons. And various FOIA experts all seem to be in universal agreement that this bill is at best, performative nonsense, and at worst, leading us down the path of less transparency at a time when we need more.

This would be a major change in FOIA to achieve what seems more like a political talking point than anything else," said Bradley Moss, a partner at the firm Mark S. Zaid P.C.

Kel McClanahan, the executive director of National Security Counselors, a nonprofit law firm, said the bill could undermine a key precept of FOIA, known as release to one, release to all."

Once a document has been released under FOIA, it cannot be withheld from another requestor," McClanahan explained. Under Rubio and Cotton's bill, that standard would no longer be universal.

The legislation would either not do anything useful," he said, or it would be a toe in the door to get rid of other things like release to one, release to all."

As FOIA expert Lauren Harper highlights, none of this makes any sense at all:

And on what planet does Cotton think foreign entities are the reason US citizens' #FOIA requests aren't being prioritized? They aren't prioritized because the US fed does not appropriately fund, encourage, or support a healthy declass system. It is designed to be broken.

- Lauren Harper (@LaurenLeHarper) June 14, 2022

Politics today seems almost entirely dominated by performative nonsense that actually makes the public worse off.