Even frequent requesters like the Heritage Foundation are not at fault if the government can’t effectively search and review large amounts of records.
The Heritage Foundation sends a lot of Freedom of Information Act requests about progressive issues, from climate change to policies on diversity, equity, and inclusion, and it’s causing a stir.
A recent ProPublica article detailed the FOIA campaign, which is allegedly part of Project 2025’s effort to identify agency officials for potential firing.
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ProPublica, which obtained the information for its article through its own FOIA requests, suggests that the hundreds of Heritage Foundation requests may intimidate public officials and prevent FOIA offices from effectively responding to “legitimate” requests by clogging the FOIA queues.
Reporting how the Heritage Foundation may use FOIA responses to gut the federal workforce is a worthy endeavor. Implying that FOIAs are illegitimate when the goal is partisan is a slippery slope that could give other agencies an excuse to deny requests they don’t like.
Most importantly, it is not the requesters' fault, even if they are frequent requesters, that the government can’t effectively search and review large amounts of records.
A few key points:
- Federal employees’ records that detail their work should be fair game for FOIA requests.
- Many of the requests would have been unnecessary if agencies proactively posted information like they are supposed to.
- Even a large FOIA project like the Heritage Foundation’s is not the reason the entire federal government’s FOIA backlog increases every year.
Implying that FOIAs are illegitimate when the goal is partisan is a slippery slope that could give other agencies an excuse to deny requests they don’t like.
Maligning the records seeker
Blaming FOIA requesters for the worsening of the FOIA processing landscape is not new.
Jason Leopold, a national security reporter and prolific FOIA requester, was once called a “FOIA terrorist” for the number of FOIA requests he filed. He’s been repeatedly cited by agencies as an example of why they can’t process other requests and there need to be more limits around requesters.
MuckRock, a nonprofit that makes it easier for citizens and freelance journalists to file requests, has been similarly maligned by agency FOIA officials.
And while “bad faith requesters” do exist, my colleague Caitlin Vogus recently wrote that the best way to counter them “is to correct the record with more information.”
Most agencies don’t respond by releasing more information, and instead continue to ignore requirements for proactive posting.
FOIA clearly states that agencies: 1) must publish items of public interest before anyone files a FOIA for the information, and 2) must publicly post records that are frequently requested. Most agencies struggle to consistently meet these requirements, if they meet them at all.
The monthly calendars of high-level officials requested by the Heritage Foundation are an example of records that should already have been public. Top officials’ calendars are often requested — by all sorts of organizations and individuals. If agencies had proactively posted the calendars, this would have saved them from processing hundreds of Heritage Foundation FOIAs.
Flooding the FOIA office?
One of the criticisms hurled at the Heritage Foundation — and journalists like Leopold — is that their requests are so voluminous that agencies can’t respond to other requesters.
It’s true that agencies struggle to respond to FOIA requests. Every year, the Justice Department reports that the government-wide FOIA backlog has increased.
It’s also true that large, complex requests take longer to process than simple requests. But large requests are allowed as long as it’s clear what the requester is asking for.
The more important question to ask is why can’t agencies effectively process requests for large amounts of information.
There are several reasons:
- Records are still reviewed manually even though it is impossible for human reviewers to keep up with exponentially increasing digital records.
- Many FOIA offices don’t conduct records searches because they don’t have access to the records, instead asking the person whose records are being sought or an IT department to do it. This causes delays if non-FOIA officials don’t prioritize the search, and means a FOIA officer doesn’t always know how other officials are conducting a search.
- Most FOIA funding is tight and comes from other parts of an agency’s budget. This impacts software purchases and decisions integral to the FOIA process. For example, agencies usually pay for third-party software to redact documents. Software vendors charge agencies based on the amount of documents they store during the review process. This means that agencies pay more money to process larger requests. If a FOIA office doesn’t have enough funding, this expense could be an incentive to deny large requests outright.
- These factors help contribute to a culture of secrecy over disclosure, with FOIA offices spending time and resources needlessly denying FOIAs and/or applying unnecessary exemptions.
Now what?
FOIA offices are underwater, that’s clear. The solution is equally clear. Agencies should post more information proactively and be allocated the funding necessary to invest in commonsense search and review tools.
FOIA requesters and journalists who write about FOIA problems play an important role, too — keeping the pressure on agencies to improve rather than blaming other requesters.