The Yale Law Journal

June 2018

First-Person FOIA

Administrative LawImmigration Law

abstract. The Freedom of Information Act (FOIA) embodies a radical notion. By allowing any person to request any records for any reason, it was meant to open up government for all to see. Investigative journalists, watchdog groups, and concerned citizens would all jump at the chance to hold officials accountable and unearth secretive government actions. The numbers seem to support a FOIA success story: after all, the government now consistently receives over 700,000 FOIA requests a year.

As it turns out, however, it is not journalists and nonprofits who are making hundreds of thousands of requests. In my previous article, FOIA, Inc., I documented how commercial requesters have dominated the FOIA landscape at some agencies, particularly large regulatory agencies. In doing so, they have transformed FOIA into a sort of giveaway to businesses, to the potential detriment of those whose requests promote government oversight.

This Article reveals the unexpected uses of FOIA at another group of agencies, particularly those focused on law enforcement and benefits provision. At these agencies, FOIA requests are dominated by individuals seeking records about themselves: for example, their own medical files, immigration records, or investigation files. In fact, these requesters—whom I call first-person FOIA requesters—appear to vastly outnumber commercial requesters. At the Department of Homeland Security alone, more than 200,000 first-person requests are filed each year. Using original datasets and interviews with requesters, this Article documents the extent and nature of first-person FOIA requesting at seven federal agencies. It also demonstrates that, while these requests may serve vital private interests for each requester, they largely do not serve the public’s interest in knowing what its government is up to.

These accounts not only suggest that FOIA may be suffering under the weight of unintended uses, but also reveal how first-person requesters are often ill-served when they are forced to use FOIA simply because no good alternative exists. Moreover, it reveals how agencies themselves duplicate work and hinder their own objectives by requiring that first-person information needs be met through FOIA. Important conclusions follow from these insights. Agencies should meet first-person information needs head-on by designing sensible processes for obtaining commonly needed personal information. Alleviating the need to resort to FOIA would provide benefits that inure to individuals, agencies, and the public’s interest in transparency.

author. Associate Professor, University of Denver Sturm College of Law. I owe a debt of gratitude to the Hughes-Ruud Research and Development Fund for providing financial support for this research and to my home institution for its support. I benefited greatly from presentations of this work there, as well as at the Law and Society Association Annual Meeting, and the Second Annual Administrative Law Workshop at Ohio State University. I also am very grateful to Kent Barnett, Emily Bremer, Bernard Chao, Brian Feinstein, César Cuauhtémoc García Hernández, Nicole Godfrey, Danielle Jefferies, Tammy Kuennen, Nancy Leong, Kevin Lynch, Jon Michaels, Rachel Moran, Nicholas Parrillo, Justin Pidot, Michael Sant’Ambrogio, Miriam Seifter, Bijal Shah, Peter Shane, Michael Siebecker, and Chris Walker for invaluable feedback I received on earlier versions of this work. Finally, I owe a deep debt of gratitude to Sydney Boyle, Nathan Fall, Leah Perczak, Patrick Sweet, and Elizabeth Weil, all of whom provided outstanding research assistance.