As Above Doesn’t Have to Be Below: States Should Be a Counterweight to Eroding Federal Transparency

We face a crisis of institutional legitimacy across the federal government—transparency is more crucial than ever. The Freedom of Information Act (FOIA) was founded with a hope to create an informed citizenry that could check against corruption. A myriad of state public records laws followed FOIA with the same goals of keeping people in the know of what their state is up to.

While FOIA faces numerous issues such as huge backlogs, exemptions that tend to swallow the rule, among others—it is still a crucial tool for transparency used by advocates and the press everywhere. The Trump administration’s systemic gutting of the federal workforce bodes ill for transparency because it not only impacts FOIA processing but also the government’s ability to proactively preserve information.

States can preserve and enhance democracy by acting as a valuable counterweight to the breakdown of federal transparency measures. But state trends in public records laws demonstrate the slow retreat of transparency as legislatures close off their doors and create prohibitive fee structures. In times like these, states should look at existing issues with FOIA and implement open government reforms like fee caps or proactive disclosure to allow for greater access to information.

FOIA’s Promise and Challenges

The Freedom of Information Act was enacted on July 4, 1966. The result of a decade plus of advocacy by the press as well as some intrepid Congress members, FOIA promised a departure from an era of extreme executive secrecy. FOIA, the Supreme Court has pronounced, “ensure[s] an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.”[1] This expansive right to “know” now constitutes a core part of our democracy.

While FOIA promises an informed citizenry, it is not a universal remedy. Implementing the law comes with its share of challenges. Even as President Johnson signed FOIA into law, his signing statement emphasized the need to preserve secrets for national security. Agencies withhold information under certain allowed exemptions. These exemptions have swallowed significant portions of the intended effect of FOIA. Documents are increasingly marked as classified and courts have adopted a deferential posture towards executive branch classification.[2] Exemptions 5, for inter and intra-agency memoranda, designed to enable candid discussions of policy, did “not contain a time limit;”[3] Congress belatedly added a twenty-five year time limit. FOIA backlogs number in the hundreds of thousands and there is a shortage of FOIA officers processing requests. Despite the plain text of the statute, statutory timelines for responding to requests are not “mandatory but directory.”[4]

As an Equal Justice Works Fellow at EPIC, my own project extensively utilizes public records requests to investigate surveillance in public housing. I am using both the federal FOIA as well as numerous state public records access laws to unearth when and how surveillance systems are being used against public housing residents. For the initial step of my project, I sent a FOIA request to Housing and Urban Development (HUD) to get records related to the use of facial recognition funded by federal Emergency Safety and Security Grants. The FOIA request was sent on July 26, 2024. On October 24, 2024, I clarified the request for the HUD FOIA liaison to narrow its scope. Come four and a half months later, the request is still processing with an indeterminate resolution date.

FOIA is not perfect. Perhaps, it is at best a “slingshot attempting to pierce the tank armor of government secrecy and over-classification.”[5] But it is still a crucial tool for transparency.[6] EPIC has used public records laws to investigate government use of location tracking social media surveillance and facial recognition, prompt disclosure of mandated federal data mining reports, and investigate automated decision-making systems used by DC government. FOIA, at minimum, has proven itself more than a “romantic notion” and attempts to fill the gaps when the “institutionalized checks and balances within our systems of representative democracy” fail.[7] And those checks and balances are certainly failing.

The Current Moment

As the Trump administration enacts it political goals with carte blanche from both the House and Senate majorities, government transparency is more important than ever. The current Trump administration is going far beyond the usual time-honored tradition of Presidential run-arounds of FOIA. The first Trump administration was no friend of openness and transparency. As journalist Philip Eil recounts, the administration withheld visitor logs, forced employees to sign non-disclosure agreements, increased FOIA rejections, redactions, and delays, and faced skyrocketing FOIA lawsuits. Still, FOIA proved a valuable tool to expose the administration’s secretive government activity.

Now, however, the prospects for transparency look bleak as the federal workforce gets systematically gutted. The chronically over-burdened and understaffed FOIA offices within agencies are likely targets of future cuts. The Office of Personnel Management has already fired its FOIA staff. The former National Archives and Records Administration’s Archivist was abruptly fired and top leadership was replaced with Trump loyalists. NARA’s Office of Government Information Services is mandated by Congress to ensures compliance with FOIA across federal agencies. NARA has already fired 64 probationary employees.

Institutional practices that undermine FOIA obligations are likely in the cards. For example, videos obtained from Project 2025‘s Presidential Administration Academy—intended to train political appointees in the Trump administration—advised trainees to avoid creating paper trails to undercut FOIA. As another example, there are calls to restructure agencies so that FOIA offices are absorbed into Offices of General Counsel. Such a structure would enable the administration to entrench policies such as awareness reviews that unlawfully withheld records during the first Trump administration.

While the administration touts radical transparency, its action show otherwise. The Trump administration has housed the Department of Government Efficiency (DOGE) within the executive office of the Presidency arguing it is not subject to FOIA. While DOGE is likely covered by FOIA and cannot lawfully withhold records without asserting a specific exemption, it is likely to attempt other tactics to avoid scrutiny without paying much attention to what is in fact lawful. And recently, acting U.S. Agency for International Development (USAID) secretary Erica Y. Carr directed staff to destroy classified documents. It is unclear whether USAID is following records management and retention protocols.

States Serving as an Institutional Alternative

As the public’s federal right to know continues to erode, states can provide a valuable counterweight and inculcate institutional practices that champion transparency. All 50 states have public records laws that are modeled after FOIA—including its obstacles. These obstacles vary based on the state but can include increased processing times, numerous and overly broad exemptions, prohibitive costs, and restrictions on who can ask for records. As the federal transparency apparatus gets dismantled, states have an opportunity to create a culture of transparency and accountability. But current state open government trends look grim as well.

Legislatures across the country are amending public records laws to exempt their travel records, email and text messages, and internal meetings. State agencies are processing records at slower rates than ever before. Numerous legislators have advocated for a broad ability to deny records requests for “vexatious requesters.” Presumably, this is an attempt to fight against commercial use of public records laws. For example, New Jersey Governor Phil Murphy signed a bill that gutted its Open Public Records Act by eliminating attorney’s fees. Though the bill’s proponents claimed they were targeting commercial data brokers, the final bill put no restrictions on commercial requesters and instead added a pay-to-expedite provision.

Increasingly steep fees also are making access to information cost-prohibitive at the state level. Most state open government records laws have statutes that cover the costs of replicating records if done for a public purpose or by a nonprofit entity. These laws allow newsrooms, journalists, and advocates of all sorts to pursue transparency efforts without requiring deep pockets. But despite the presumptive ease of providing access to records in the digital age, fees for open records requests continue to rise. In effect, this imposes a transparency tax for requesters.

For example, states are beginning to charge exorbitant fees to process bodycam footage requests (that is, if they subject bodycam footage to public records request in the first place). Just this year, Ohio Governor Mike DeWine signed legislation that would allow law enforcement agencies to charge up to $750 per video produce in response to a public records request. While the charges are not mandatory, the discretionary ability to enforce charges is a recipe for selective enforcement and chilling of citizen journalism. Last year, Wisconsin passed Act 253, which allows law enforcement to charge public records requesters for the cost of redacting audio or video materials. Arizona’s passage of a similar law has resulted in requestors facing a bevy of charges that makes transparency and accountability prohibitively expensive.

Nor are these charges limited to burdensome audio and video processing. Local Austin news network, KXAN, was invoiced $27,180 when it sought to get access to complaints against police officers that did not result in discipline. Last year, the Nebraska Supreme Court upheld a $44,103 “special services charge” to a nonprofit news site that requested records related to nitrate contamination of ground water; luckily, state legislators quickly introduced a bill that would help waive fees if doing so was in the public interest. New Hampshire almost passed a bill charging exorbitant fees before legislators compromised with open government and transparency advocates and tailored the bill to more effectively target commercial users and exempt the press. However, not all states are so quick—Virginia’s latest attempt to cap fees was blocked in the House of Delegates despite near unanimous support in the Senate.

Towards Reform

States must lead the way and create a better path forward. Public record laws must ensure transparency without prohibitive costs. Proactive disclosures of records, fee caps, and centralized oversight via an information commission are just some of the many proposals that exist. In this time of crisis, our democracy deserves more.

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[1] Nat’l Labor Relations Bd. V. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978).

[2] ACLU v. Dep’t of Just., 681 F.3d 61, 75-76 (2d Cir. 2012) (holding national security exemption to FOIA justified withholding OLC memoranda that revealed a picture of CIA detainee); see also Margaret B. Kwoka, Deferring to Secrecy, 54 Boston College L. Rev. 185, 212-216 (2013) (detailing history of Court deference to national security classification exemptions despite Congress’ grant of de novo review).

[3] Nat’l Sec. Archive v. CIA, 752 F.3d 460, 464 (D.C. Cir. 2014) (upholding denial of request seeking a forty-year-old internal CIA history of the Bay of the Pigs invasion).

[4] Open Am. v. Watergate Special Prosecution Force, 547 F.2d 605, 609 (D.C. Cir. 1974).

[5] Baher Azmy, An Insufficiently Accountable Presidency: Some Reflections on Jack Goldsmith’s Power and Constraint, 45 Case W. Res. J. Int’l L. 23, 36 (2012).

[6] But see David E. Pozen, Freedom of Information Beyond the Freedom of Information Act, 165 U. Penn L. Rev. 1097, 1101 (2017) (arguing that transparency advocates must move beyond FOIAs private enforcement structure, as FOIA is “reactionary in a more substantive, political sense insofar as it empowers opponents of regulation, distributes government goods in a regressive fashion, and contributes to a culture of contempt surrounding the domestic policy bureaucracy while insulating the national security state from similar scrutiny.”) But in the absence of a non-reactionary regime, FOIA is most of what we currently have.

[7] Antonin Scalia, The Freedom of Information Act Has no Clothes, Regulation, at 19 (Mar./Apr. 1982) (arguing that FOIA was not useful as most modern exposes of the time were not revealed due to FOIA but rather the result of “institutionalized checks and balances within our systems of representative democracy.”)