U.S. FOIA committee contemplates research, reform

The federal Freedom of Information Act (FOIA) Advisory Committee, on which I serve as a non-governmental member, held a public meeting Thursday, live-streamed and recorded on YouTube, and there's a lot cooking, including research on unduly burdensome requests and compliance barriers, and recommendations for statutory reform.

National Archives and Records Administration (NARA) Chief Operating Officer Jay Trainer spoke at the opening of the meeting. He observed a rise in overall public trust in the federal government from 23% in 2024 to 33% in 2025 in Gallup survey results and lauded the role of the FOIA and the Office of Government Information Services (OGIS) in building trust in the federal government.

I agree with him. But I also agree with Kevin Bell, a former member of the Advisory Committee who this year resigned his government post at the Federal Energy Regulatory Commission, and thus his government seat on the Advisory Committee. Bell's resignation to me demonstrated how the Elon Musk-led administration efficiency initiative cost us talented public servants while doing little actually to achieve efficiency, or even while thereby undermining efficiency.

Bell spoke in the public comment period of the public meeting and observed that the poll results are somewhat skewed, in that people probably answer the question with outsized reference to elected officials and little knowledge of the civil service. His supposition is supported by the fact that digging into the poll data shows that the uptick since 2024 is largely in a swell in Republican confidence. And what has changed since 2024 is the political landscape, not the workaday civil service, whatever Muskian bluster might have us believe.

However, Bell pointed out, if Americans really knew what civil servants do everyday, as demonstrated by the informed dedication of the public employees who serve on the Advisory Committee, the poll numbers would indicate vastly higher confidence in the federal government than one in three Americans.

By the way, that's not to say that there isn't room for efficiency improvements, including cuts, in the federal government. There are plenty of ways to do that without depriving the taxpayers of their best workers. Corporate welfare would be a good starting point, or at least a shift in those subsidies to investments that would stimulate exactly the kind of economic growth the Trump administration purports to desire. That's another story.

Maybe it's because I am teaching comparative law right now, but I was delighted to hear a comparative perspective in the work of the volume-and-frequency subcommittee, among the three subcommittees the Advisory Committee has organized. 

Regarding volume and frequency, the Advisory Committee heard a presentation by members David Cuillier, University of Florida, and Shelley Kimball, Johns Hopkins University, as well as guest Ben Worthy, University of London, on their work, also with Suzanne Piotrowski, Rutgers University, on "unduly burdensome" requests—also known as "vexatious requests," though that term is not preferred because of its normative hint of ill intention. Piotrowski, incidentally, is the founding coordinator of the Global Conference on Transparency Research; I posted GCTR's call for papers for 2026 here at The Savory Tort earlier this month.

Cuillier, Kimball, Worthy, and Piotrowski's research is ongoing, but thus far they have drawn up a list of strategies that might help to manage the problem of unduly burdensome requests, and a list of strategies that do not work, or that represent non-constructive policy choices. They shared with the committee these strategies that are positive or might have potential if implemented thoughtfully (my comments bracketed):

• Training (for staff and public)
• Technology/resources (e.g., line-item budget)
• Proactive posting
• Front-end discussions
• Express lanes [expediting some requests, such as first-person] and "zippering" [managing one request from a multiple requester, then another from another requester, then another from the multiple requester, then another from another requester, and so on]
• Staggered dissemination
• Differential copy fees
• Independent commission (e.g., Connecticut [Freedom of Information Commission])

These are ill advised strategies, some of which, concerningly, are growing go-tos:

• Search/redaction fees
• Vague laws to allow denial
• Time extensions
• Quotas/caps
• Fines and jail time
• Signed promises to be good
• Prohibitions on anonymous requests
• Bans on AI

Another problematic strategy is to probe the intentions, or motives, of the requester for some kind of legitimacy measure. Co-authors and I opined 15 years ago on requester motive immateriality as a core common law and statutory norm of access law, and it should be preserved. It makes no sense to give a record to one requester and not to another, owing to motive, and risks discriminatory judgment about the merits of record use. A record's public disposition should be decided on its content, within its four corners.

The research is inherently comparative owing to Worthy's involvement as a scholar of the UK Freedom of Information Act. But the authors' multinational cognizance is broader still. For example, the team is studying standards employed by the Connecticut commission that Connecticut borrowed from Canadian law in Ontario.

Cuillier mentioned that other countries almost uniformly distinguish commercial requesters, that is, those which will make money from information processing, such as information brokers, from first-person and public-interest requesters, with regard to fees. The former fairly might be required to pay their way, while the latter may be entitled to free access. Co-authors and I also memorialized in our previous work how this commercial-requester distinction worked a modest but justifiable compromise to the historical common law and statutory norm of requester identity neutrality. However laudable that norm in theory, it predated the information era, when information brokering became a business model.

Advisory Committee member and Professor Margaret Kwoka asked whether the researchers and subcommittee were parsing their conception of fees, understanding that, my words: not all fees are created equal. That is, a fee might be used for a laudable purpose, such as having a commercial requester pay its way, or, in contrast, for an objectionable purpose, such as discouraging public access generally.

In discussion of the point, Worthy referenced Ireland's experiment changing free access under the Irish Freedom of Information Act to a flat fee of €15 in 2003. The purported objective, he said, was to deter unduly burdensome requests. But there was little evidence that happened. What did happen was a 75% drop across all requests. Cuillier said that Irish usage of the public records law still has not rebounded since the fee was rescinded. Yet, he added, Canadian provinces are now busy about adopting fees upon the same ill-informed theory.

Slides from Cuillier, et al.'s presentation for the volume-and-frequency subcommittee are available on the Sept. 11, 2025, meeting page of the FOIA Advisory Committee. They include QR codes to locate three papers the researchers have presented previously, two at the GCTR conference in Brussels in May 2024, and one at the conference of the Southern Political Science Association in Puerto Rico in January 2025. The volume-and-frequency subcommittee is co-chaired by Advisory Committee members Nick Wittenberg, corporate counsel at Armedia, and Nieva Brock, Associate General Counsel at the Defense Department.

For the statutory reform subcommittee, Advisory Committee members Ryan Mulvey, policy counsel for Americans for Prosperity, reported several subjects on which the subcommittee aims to draft recommendations:

• Adding affirmative disclosure categories
• Making FOIA logs available affirmatively
• Ensuring judicial review of affirmative disclosure, that is, FOIA "reading rooms"
• Incentivizing alternatives to FOIA requests
• Assisting agencies with Rehabilitation Act accessibility compliance
• Empowering agency officials to make affirmative disclosures
• Making the FOIA Advisory Committee a non-discretionary federal advisory committee

The statutory reform subcommittee is co-chaired by Mulvey and Advisory Committee member Whitney Frazier-Jenkins, Pension Benefit Guaranty Corporation, which, by the way, is a high-achieving if lesser-known agency in FOIA compliance.

For the implementation subcommittee, Advisory Committee member Deborah Moore, chief FOIA officer for the Department of Education, reported on an initiative to study barriers to FOIA implementation by engaging with focus groups of FOIA officers within agencies. Kimball and Advisory Committee member Sarah Jones Weicksel, executive director of the American Historical Association, designed the research project, in which I will participate this fall.

Also for the implementation subcommittee, I reported on the Comment of Freedom of Information Scholars submitted by academic colleagues and me regarding the ongoing revision of the Federal Acquisition Regulation, reported here at The Savory Tort in July and now also among public comments to OGIS for the Advisory Committee. The subcommittee is co-chaired by Jason Baron, University of Maryland, who co-signed the comment, along with Cuillier, Kimball, and Kwoka, and by Marianne Manheim, supervisory government information specialist at the National Heart, Lung, and Blood Institute. Advisory Committee member Frank LoMonte, a recovering academic and now senior counsel at CNN, also gave invaluable advice on the comment.

This was the sixth meeting of the sixth term of the Advisory Committee. The next public meeting is scheduled for December 4, at 10 a.m. U.S. EST. Public comments are invited online at OGIS and at public meetings. Read more about the Advisory Committee, its members, and OGIS FOIA compliance work at the OGIS blog, The FOIA Ombuds. The Advisory Committee is chaired by OGIS Director Alina Semo and afforded essential coordination by the many-hatted Kirsten Mitchell, compliance team lead, federal FOIA ombudsman, and designated federal officer at OGIS.

Nuclear arms, testing still imperil life on earth

The August Atlantic published a few select photos of nuclear tests by military photographers in Nevada amid a series of stories on nuclear arms.

Nuclear power plants aim to fire back up around the country and around the world. That's causing those of us who remember The China Syndrome and The Day After, not to mention real-life Three Mile Island and Chernobyl, to feel anxious. 

Our anxiety is fed by the additionally burgeoning risk of a new nuclear arms race. Like many people, I, and apparently the editors of The Atlantic, are thinking back on the Cold War, when a nuclear holocaust seemed about as likely as not.

I'll republish here in low resolution four photos The Atlantic featured from the era of above-ground nuclear testing. The photos are in public domain, as they are in the possession of the National Archives and Records Administration (NARA)—collaterally, a reminder of NARA's importance amid its recent, inimical politicization. The photos were published previously in a military-photo compilation edited by Michael Light, 100 Suns: 1945-1962 (2003) (cover inset above).

 

The Atlantic issue, captioned "Eighty Years on the Edge" (cover inset at left), is well worth examining in whole. Coverage ranged from the historical to the contemporary. Inter alia, Noah Hawley traced the origin of Kurt Vonnegut's Cat's Cradle (1963) to the advent of the atomic bomb. And Ross Andersen explained how American absence in world leadership is setting the stage for the new nuclear arms race. 

I spent two weeks in Nevada this summer and saw that its atomic history persists, for better and for worse. 

To my surprise, there is an active program monitoring ongoing radiological risk, and a federal program only recently ended to compensate people for radiation exposure that resulted in illness. 

The Radiation Exposure and Compensation Act of 1990 expired in 2024 and afforded modest compensation to persons made ill, mostly by cancers. Onsite participants in atmospheric tests were entitled to $75,000; "downwinders" of atmospheric tests, present in specified areas near the Nevada Test Site, now called the Nevada National Security Site (NNSS), were entitled to $50,000; and uranium miners working from 1942 to 1971 were entitled to $100,000. I picked up a pamphlet from an education program of the School of Medicine at the University of Nevada Las Vegas that encouraged claimants (pictured below).

The Desert Research Institute of the Nevada System of Higher Education, in collaboration with the National Nuclear Security Administration Nevada Field Office of the U.S. Department of Energy, maintains a network of air and groundwater monitoring stations surrounding the NNSS. The NNSS describes itself today as a government "enterprise of multi-mission, high-hazard experimentation facilities." The Community Environmental Monitoring Program watches for "manmade radioactivity that could result from NNSS activities" and publishes its data online with an interactive map. At right is a map of CEMP monitoring stations, and below (RJ Peltz-Steele CC BY-NC-SA 4.0), is one of two CEMP monitoring stations at Tonopah, Nevada.

Though nuclear testing has abated above ground and below, government test sites of all kinds abound still in Nevada. The sites encompass vast swaths of desert, and active sites are well cordoned off with fences and warning signs—including but far from limited to the famous Area 51. (All below photos, RJ Peltz-Steele CC BY-NC-SA 4.0.) 

A CEMP station in Tonopah, Nevada, monitors air quality and dispenses pamphlets for curious onlookers.

The U.S. Department of Energy shares and leases the Tonopah Test Range ("Area 52") with the Defense Department and contractors.

Signs warn of a U.S. Air Force test site between "Extraterrestrial Highway" Nevada Route 375 and Groom Lake "Area 51."

The U.S. Bureau of Land Management now preserves Lunar Crater, where astronauts once practiced moon landing.

Still operational, a small U.S. Defense Department installation near Lunar Crater affords a staging area.

Displays at the Nevada State Museum and even a bawdy show at the Venetian in Las Vegas highlight Nevada's nuclear history.

"Earth Station," on the Extraterrestrial Highway in Hiko, Nevada, near Area 51, stocks alien-themed souvenirs.

Regulatory overhaul opens opportunity to build 'transparency by design' into federal contracting

Google Gemini CC0

Colleagues and I submitted a comment to the federal government yesterday urging recognition of the freedom of information, that is, "transparency by design," in government acquisition of information and communication technology. 

The White House has ordered the overhaul, or streamlining, of the federal procurement process, ideally through simplification of the voluminous and complex Federal Acquisition Regulation. 

The Federal Acquisition Regulatory Council is working over the regulations part by part with "deviation guidelines," allowing agencies room to depart from regulations until a proper regulatory rewrite can be accomplished—something that typically takes years—and inviting feedback on a rolling basis. Part 39, for which model deviation recently issued, covers the acquisition of information and communication technology.

The Administration's aim is a "Revolutionary FAR Overhaul" to "Restor[e] Common Sense to Federal Procurement." The government website Acquisition.gov explains (original emphasis):

Led by the Office of Federal Procurement Policy (OFPP) and the Federal Acquisition Regulatory Council (FAR Council), this initiative will return the FAR to its statutory roots, rewritten in plain language, and remove most non-statutory rules.  In addition, non-regulatory buying guides will provide practical strategies grounded in common sense while remaining outside the FAR.

The goal is clear: faster acquisitions, greater competition, and better results.

Naturally, there is concern by skeptics of the Administration that the overhaul is only a smokescreen to loosen the reins on corporate contractors and grease the wheels of profit off the public fisc.

Regardless of the realpolitik, the Administration at least represents that it wants transparency, which should facilitate a free market and accountability in federal contracting. Like the "DOGE" initiative, the ends are laudable, even if the means are debatable.

Thus, in the shared spirit of efficient governance, colleagues and I sought to remind the FAR Council and OFPP that FOIA already provides for access to agency records in the hands of contractors. However, the reality, exaggerated in the information age, is that public and exempt data often are so commingled as practically to preclude disclosure. At best, efficiency is compromised, wasting public resources. At worst, malfeasance is let to fester.

The problem is not new; I wrote in 2006 (page 731) about a once well known 1993 case of access to contractor data under state freedom of information law in event of a public emergency. The European Union has had a regulation in place for more than 20 years to ensure that public access to records is preserved through "transparency by design" in EU record-keeping.

Transparency by design should be a bedrock principle of government contracting at every level, especially in the information age. Politicians might disagree about what to spend public money on, but transparency and accountability after the fact is a non-partisan imperative.

Below is the full text of the Comment of Freedom of Information Scholars on FAR Overhaul part 39 (submitted July 28, 2025). My interdisciplinary co-authors are Jason R. Baron, J.D., professor of the practice at the University of Maryland College of Information; David Cuillier, Ph.D., director of the Freedom of Information Project, Brechner Center for the Advancement of the First Amendment, at the University of Florida College of Journalism and Mass Communication; Shelley Kimball, Ph.D., associate program director and senior lecturer at the Johns Hopkins Krieger School of Arts and Sciences; and Margaret Kwoka, J.D., Lawrence “Larry” Herman Professor in Law at the Moritz College of Law, The Ohio State University.

---

Comment of Scholars of Freedom of Information Law
on FAR Overhaul, Part 39
July 28, 2025

    We, the undersigned, are scholars of freedom of information law. We suggest that the federal acquisition process would benefit from recognition of agency responsibilities to comply with the Freedom of Information Act (FOIA), 5 U.S.C. § 552, which would promote the use of technology to make fulfillment of agencies’ FOIA duties less costly and time-consuming, at a significant manpower savings to the taxpayer.

    Although the FAR, 48 C.F.R. ch. 1, provides for the inclusion of a clause in solicitations and contracts for the design, development, or operation of a system of records to accomplish an agency function subject to the Privacy Act, 5 U.S.C. § 552a (see 48 C.F.R. §§ 24.104 & 52.224-1), it appears that there is no comparable FAR provision addressing an agency’s obligation under FOIA to provide access to federal agency records. As the federal government has increased its reliance on electronic data systems, it is important, in the interest of transparency, to ensure that agencies have the means effectively and efficiently to pull information out of these systems in response to FOIA requests. One way to do that is to require federal agencies to consider their responsibilities under FOIA when they set out to acquire information technology, especially communication technology.

    In 2020, we understand that the National Archives and Record Administration (NARA) recommended to the Office of Management and Budget (OMB) that FAR part 39 be revised to recognize FOIA obligations. Specifically, NARA proposed, inter alia:

Agencies must ensure that contracts for designing, developing, purchasing, or operating information technology or systems, including cloud-based, and Federal or non-Federal information systems, contain requirements that facilitate FOIA processing in their system design specifications (5 U.S.C. § 552). Each agency must ensure that system design includes the following FOIA-related search and retrieval capabilities:

(1)    conduct robust searches of electronic records in response to FOIA requests;
(2)    document the search and search results; and
(3)    export the documents that result from the searches in the format the agency requires for responding to FOIA requests.

The NARA proposal was based on Recommendation 2018-03 of the FOIA Advisory Committee.  The Committee in 2018 recognized a need for “all agencies, when acquiring electronic records management software, electronic mail software, and other records related information technology, to consider features that will help facilitate the agencies’ responsibilities under FOIA to provide access to federal agency records.” Accordingly, the Office of Government Information Services (OGIS) drafted a business case in FY 2019 that would modify the FAR to require access to federal agency records as a consideration in the procurement process. As stated above, NARA submitted the business case to OMB in early FY 2020 for consideration by the Federal Acquisition Regulatory Council.

    Upon the occasion of the FAR overhaul process, as to part 39 and more generally, we suggest that government transparency and efficiency would be achieved by agency recognition of FOIA responsibilities at the time of acquisition of information and communication technology systems. “Transparency by design” in such systems obviates waste of government resources trying to comply with FOIA after the fact with systems ill designed to facilitate compliance. 

    We therefore recommend that the above specifications be included in the FAR revisions being contemplated, in the revised regulations themselves, in the newly contemplated Buyer’s Guides, or in both.

Respectfully submitted,

/s/ Richard J. Peltz-Steele

Richard J. Peltz-Steele, J.D.
Chancellor Professor, University of Massachusetts Law School

Jason R. Baron, J.D.
Professor of the Practice, University of Maryland College of Information

David Cuillier, Ph.D.
Director, The Freedom of Information Project, Brechner Center for the Advancement of the First Amendment, University of Florida College of Journalism and Mass Communication

Shelley Kimball, Ph.D.
Associate Program Director, Senior Lecturer, Johns Hopkins Krieger School of Arts and Sciences

Margaret Kwoka, J.D.
Lawrence “Larry” Herman Professor in Law, Moritz College of Law, The Ohio State University

Affiliations are stated for identification only, not to represent any position of the named institutions. 

FOIA committee meets after firing of National Archivist

Yesterday, the Freedom of Information Act (FOIA) Advisory Committee, on which I am privileged to serve, held a public meeting, available on the YouTube channel of the National Archives and Records Administration (NARA). 

The meeting comprised routine status updates from working subcommittees. But arising as it did amid the Trump/Musk shake-up in federal government, the stream might have drawn more than the usual public interest. The President fired National Archivist Colleen Shogan three weeks ago (see also CBS News), apparently in violation of federal law and with a political logic that's hard to discern, as University of Maryland Professor Jason Baron explained recently in Washington Monthly.

The committee lost one member to the Musk "fork in the road" program; capable attorney Kevin Bell departed the Federal Energy Regulatory Commission. The President last month terminated the Open Government Federal Advisory Committee in the General Services Administration (GSA) (Government Executive).

I am all for eliminating government waste and inefficiency, but I'm worried that "fork in the road" only incentivized the departure from public service of the most talented people, who could get other jobs most readily. And I'm not sure I see the wisdom of terminating an advisory committee, which brings volunteer expertise from the private sector (or state academics, such as Baron, me, and others) to bear on federal government work at minimal cost to taxpayers.

The committee yesterday unanimously approved a motion of Frank LoMonte, CNN senior counsel, to ensure preservation of committee work, as required by the Federal Advisory Committee Act (FACA). He didn't say so explicitly, but the move seemed pretty well calculated as a hedge against possible termination of the committee's work.

Excellent public comment came from Alex Howard, Digital Democracy Project and former committee member. Logically he inquired, inter alia, about the impact of government "efficiency" cuts and website take-downs on FOIA. Certainly these questions are of great concern to everyone involved; Professor Margaret Kwoka said as much in response. The fact is, simply, I don't think anyone can yet apprehend that big picture.

Transparency never goes out of style

This autumn, I am privileged to serve as a new member of the Freedom of Information Act (FOIA) Advisory Committee, a U.S. federal entity constituted under the Federal Advisory Committee Act (FACA) and administered by the Office of Government Information Services (OGIS), within the National Archives and Records Administration (NARA).

If that alphabet soup has your head spinning, then you have some sense of what it's been like for me to get up to speed in this role. That said, I'm thrilled to have the opportunity and humbled by the expertise of the committee members and OGIS staff with whom I'm serving.

I'll have more to say in time, as we have accomplishments to report. Meanwhile, though, a bit of parody art. At a meeting yesterday of the Implementation Subcommittee, ace OGIS compliance officer and former journalist Kirsten B. Mitchell related an anecdote.

A youthful person had wondered aloud that Fresca is quite old, perhaps dating to the 1980s! And Mitchell said she felt compelled to note that it is even older. In fact, the niche-beloved Coca-Cola Co. soft drink dates to the same year the FOIA was signed into law: 1966. That modest revelation prompted me to generate the above art, based on a contemporary Fresca ad that capitalizes on the drink's age ("Delicious Never Goes Out of Style"). (Above art by RJ Peltz-Steele CC BY-NC-SA 4.0 with no claim to underlying work of Coca-Cola Co.)

The inaugural public meeting of the 2024-2026 FOIA Advisory Committee, at NARA in September, is posted on YouTube.

FOIA committee ponders access amid privatization

I had the great privilege last week to speak to the U.S. Freedom of Information Act (FOIA) Advisory Committee, working under the aegis of the Office of Government Information Services (OGIS) in the National Archives and Records Administration (NARA) on the subject of access to the private sector in the public interest.

The OPEN the Government Act of 2007 augmented FOIA to follow public records into the hands of government contractors.  But the federal FOIA's reach into the private sector remains extremely limited relative to other access-to-information (ATI) systems in the United States and the world.  U.S. states vary widely in approach; the vast majority of state open records acts reaches into the private sector upon some test of state delegation, whether public funding, function, or power.  The same approach predominates in Europe.

The lack of such a mechanism at the federal level in the United States has resulted in a marked deficit of accountability in privatization.  The problem is especially pronounced in areas in which civil rights are prone to abuse, such as privatized prison services, over which the FOIA Advisory Committee and Congress have expressed concern.  By executive order, President Biden is ending the federal outsourcing of incarceration.  But access policy questions remain in questions about the past, in waning contracts, and in persistent privatization in some states.

As I have written in recent years, and examined relative to ATI in the United States, Europe, and India, an emerging model of ATI in Africa advances a novel theory of private-sector access in the interest of human-rights accountability.  I was privileged to share this model, and the theory behind it, with the committee.  I thank the committee for its indulgence, especially OGIS Director Alina Semo for her leadership and Villanova Law Professor Tuan Samahon for his interest in my work now and in the past.