Freedom of Information Acts (FOIAs) have been strong anticorruption tools in the United States for decades. Though the federal government and the 50 state governments each have their own version of FOIA, the basics are similar across the board: these statutes require the publication of certain government documents and allow any citizen to request the disclosure of unreleased records, and the government must provide that information, subject to certain important exemptions (for example, exceptions related to national security, personal privacy, and internal government deliberations). If the government agency does not answer a FOIA request within a certain period of time, set by the statute, the requester can file a FOIA lawsuit to force the agency to respond.
At the federal level, FOIA requests were one of the tools used to uncover former Health and Human Services Secretary Tom Price’s use of private charter planes for government travel, leading both to his resignation and to increased scrutiny on travel by other Cabinet members. The federal FOIA also played a key role during the Clinton Administration in uncovering corruption at the Department of Agriculture. Though the state-level FOIA laws get less attention, they have also played an important role in exposing corruption and related misconduct. In Virginia, for example, requests under the state FOIA helped build the corruption case against former Governor Bob McDonnell. Similarly, Michigan’s FOIA statute helped reveal information that led to charges against Detroit’s mayor for misconduct and obstruction of justice.
However, a new threat has recently emerged to the effectiveness of these laws, particularly at the state level. State and local governments have begun responding to state FOIA requests by suing the requester to ask the court for a so-called “declaratory judgment” that the agency is not obligated to release the information requested. These preemptive FOIA suits put one of the most powerful anticorruption tools in the United States at risk.