What FOIA Doesn’t Let You See

Catherine Maltman | United States Fellow

Image sourced from Democracy Chronicles via Flickr.

What does “freedom of information” actually mean if the public cannot access meaningful information?

The Freedom of Information Act (FOIA), passed in 1966, was created as a means of disclosing documents previously unreleased or uncirculated by the United States (US) Government, upon request. It was intended to provide the public with access to government records, serving as an essential check on the decision-makers who shape US policy. In reality, it often fails to deliver the transparency it promises. 

Although functional on a basic level, the current system — noted for its costly fees, extensive wait periods, heavy redactions, and outright denials — allows for secrecy in high-level decisions, especially those where oversight and accountability are necessary to uphold democratic standards.

For the US to genuinely claim “freedom” of information, transparency and accountability must be treated not as a subjective concept, but as a guaranteed right. The FOIA needs to be reformed to fulfil its intended purpose: serving the public interest rather than shielding institutions. Otherwise, if the government no longer intends to uphold the basic tenets of the FOIA process, it has a responsibility to acknowledge the limits it places on ‘freedom of information’. 

The Reality & Barriers to Freedom

In its conception, the Act was one of the world’s first comprehensive mechanisms for permitting public access to government documents. Driven by Congressman John Moss during the era of McCarthyism and the Cold War, it was conceived to protect against the threat he thought government secrecy posed to democracy. Despite this intended purpose, the FOI process is now marred by mechanisms that shield controversial topics and projects, driven by bureaucratic tools and barriers. 

One notable drawback of FOIA is the restricted access due to its nine exemptions, which cover matters relating to national security, privacy, and law enforcement. These exemptions are often interpreted broadly, allowing agencies to shield matters without providing a meaningful explanation for this categorisation. Notably, the scope of FOIA imposes further significant restrictions, excluding federally funded entities, Congress, and the Courts from its reach. 

In terms of accessibility, the process is impractical and overly bureaucratic for the general public and the press. While the processing fee for small requests is minimal, more intensive searches or those involving sensitive topics often incur high costs and result in lengthy wait times. Complicating the process further, payments can only be made by money order or check, a method outdated in the digital era.

Even if requests are successful, these processes often result in significant redactions, the removal of entire documents, or a reduction of scope. For a process created to promote accessibility and civic engagement, the current procedures fail to ensure meaningful public access and oversight of government decision-making. 

The Case(s) Against Transparency

FOIA’s structural flaws become most apparent when examining the most contentious aspects of US policy, particularly in cases involving national security and human rights. 

In 2024, a US Court of Appeals ruled that the full Senate Intelligence Committee report on the CIA’s Detention and Interrogation program post-9/11 was not subject to FOIA. Law Professor Douglas Cox sought access to unredacted copies held by executive agencies subject to FOIA; however, the court found the particular report exempt from FOIA, as it originated in Congress.

Similarly, in 2016, Cox faced another FOIA denial when a court found that National Security Council (NSC) decisions on fatal drone strikes were not subject to FOIA. This ruling found that the NSC, despite being subject to the Act until 1994 and an entity within an office often subject to FOIA, did not hold “independent authority” and was therefore exempt from FOIA. 

Taken together, these rulings reveal how the judiciary has narrowed the scope of the FOIA, shielding major decisions from public access and scrutiny. Despite being built to bring transparency to agencies and decision-makers in the US government, the FOIA is consistently shown to protect these very actors from much-needed accountability. 

Institutional Reform

The FOIA was established to boost democratic accountability and transparency, but today it requires reform to fulfil this purpose. Congress has acted before, notably in the wake of the Watergate Scandal, to narrow exemptions, cap fees, and enforce greater oversight of the FOIA process. Reform has happened before, and it can happen again. 

At a basic level, allocating more resources to FOIA departments can ensure timely access to documents and reduce the financial burden of submitting a request. More generally, existing requirements for agencies to release information on a regular basis without the need for FOIA should be expanded. These efforts need to be supported by a Congressional clarification of FOIA’s scope, with the goal of expanding access to influential entities currently beyond its reach. By promoting these changes, the government could bring FOIA closer to fulfilling its intended purpose. 

The Freedom of Information Act was founded on the belief that transparency and government accountability are essential to democracy. Nearly 60 years later, it has become a system beholden to the government's will, not the public's rights. If FOIA continues to shield important government decisions, it undermines the values it was created to protect. To restore its original intent, the US Government must review and reform the FOIA to either prioritise the public’s right to information or to clarify the true limits of that right. Only through such a commitment can the promise of a transparent, democratic FOIA be meaningfully upheld.

Catherine Maltman is the United States Fellow for Young Australians in International Affairs. She holds a Bachelor of Arts, a Master of International Relations, and a Master of International Law from the University of Western Australia. Passionate about U.S. politics and international affairs, Catherine is eager to contribute to discussions about the United States' evolving role on the global stage under the incoming administration, particularly its implications for security and trade.