Freedom of Information Act (FOIA) requests are a new front in the struggle for religious liberty. The requests, by which citizens can obtain copies of public documents, have already been invoked by the Diocese of Pittsburgh to request “information . . . about how federal officials decided what contraceptive procedures and medications should be covered under the mandate.” Groups such as Cause of Action and the National Organization for Marriage have also filed FOIA requests concerning IRS targeting.
The government often has limited willingness or ability to fulfill such requests. Even if it is able, the private party can be asked to take on the sometimes significant expense of fulfillment. In the case of the Diocese of Pittsburgh, its lawyers “were told fulfilling the requests would take three to five years and could cost them more than $1.8 million.” After “months of correspondence” the Diocese got the bill down to $25,000, but supplying the information would still take at least three years. The request from NOM met with a similar fate.
FOIA’s implementation is broken, and defenders of religious liberty ought to seek ways to fix it. Below, then, are some specific reforms that religious liberty activists should push for.
Make the full text of FOIA requests publicly available. Currently, there’s no way for the public to monitor what requests have been submitted or how they have been filled. As former White House chief of staff John Podesta proposed in 2011, we should build an online database that lists all FOIA requests and tracks their progress.
Make the process faster and cheaper. Anyone who has done research in the National Archives can attest to the difficulties involved in finding government information. Still, a $1.8 million price tag and a three to five year timeframe are ridiculous, especially in light of the urgency of such requests. Even if the expense and delay reflect legitimate difficulties in fulfilling FOIA requests, that only points to greater need for a streamlined system. For instance, perhaps a system could be put in place where line managers would be required to give short testimonials in responses to questioning about their work.
Increase scrutiny of non-fulfilled requests. There’s always a risk that exemptions will be exploited by government agencies that do not want to reveal inconvenient facts. A system should be in place to appeal and monitor unfulfilled requests.
These demands for reform can be given greater weight if religious liberty organizations maintain and publicize statistics about fill rates for their FOIA requests. The Executive branch is unlikely to want to create such aggregate statistics, so the responsibility will fall on private organizations.
It would be extraordinarily naïve to assume that threats to religious liberty are going to diminish in coming decades. Religious institutions will have to seek ways to check government power and seek bureaucratic accountability. Improving our FOIA system now will prove a boon to religious bodies and other counter-cultural groups years into the future.
Brian Simboli graduated from Swarthmore College, received a Ph.D. in philosophy from the University of Notre Dame, and a masters in economics from Lehigh University. He has contributed to Lifenews, American Spectator, and Catholic Social Science Review and does research and writing at the interface of economics, ethics, and philosophy. Photo credit: www.justice.gov.