A Decade of Decay: Why the Federal Freedom of Information Act Needs a Radical Overhaul

This article was originally featured in The Nuance, the Reporters Committee for Freedom of the Press’s authoritative newsletter on legal and policy developments affecting the First Amendment and the free press.

Ten years have passed since Congress last enacted meaningful reforms to the federal Freedom of Information Act (FOIA). At the time, the legislative package signed by President Barack Obama was heralded as a watershed moment for government transparency. It promised to dismantle the bureaucratic opacity that had long stifled the public’s right to know, introducing provisions like the "foreseeable harm standard"—a mandate intended to curb the reflexive use of exemptions to redact or withhold vital information.

Yet, a decade later, the state of the federal public records system is not merely stagnant; it is in a state of rapid regression. As the machinery of government grows increasingly complex, the tools designed to hold it accountable are failing. For journalists, researchers, and ordinary citizens, the dream of a transparent government has been replaced by a reality of interminable delays, systematic obstruction, and an administration seemingly intent on dismantling the very mechanisms of oversight.

A Chronology of Erosion

The trajectory of FOIA over the last ten years is a study in incremental decline followed by a sharp, aggressive contraction. When the FOIA Improvement Act of 2016 was signed, there was a palpable sense of optimism. The Act introduced a consolidated online portal, mandated proactive disclosure of records, and sought to force agencies to justify their secrecy through the aforementioned foreseeable harm standard.

For a brief period, the law functioned with a degree of functionality. However, the subsequent years saw a gradual normalization of non-compliance. Agencies began to treat the statutory deadlines for processing requests—already generous in their leniency—as mere suggestions.

The most significant shift occurred within the last fifteen months. Following the return of President Donald Trump to the White House, the federal government has pivoted from a culture of grudging compliance to one of active resistance. Reports from The Washington Post indicate that federal agencies have slashed their FOIA-dedicated staff by 14%, a move that has gutted the institutional memory and processing capacity of key departments. In a move that legal experts have described as unprecedented, the U.S. Department of Energy recently attempted to mass-cancel a vast cache of pending requests, signaling a shift toward total obstructionism that threatens the bedrock of democratic accountability.

The Data: A System at Its Breaking Point

The quantitative evidence of this failure is staggering. According to federal data for Fiscal Year 2025, the health of the FOIA system has reached its lowest point in the modern era.

The Denial Epidemic

In FY 2025, over 81% of all substantively processed FOIA requests were met with either partial or full denials. This statistic alone suggests that the "foreseeable harm" standard has failed to act as a meaningful check on agency discretion. Instead of operating as a default toward disclosure, the law has been weaponized into a shield against public scrutiny.

The Delay Crisis

The average processing time for a "simple" FOIA request has ballooned. In FY 2016, a requester could expect an answer in approximately 28 days. By FY 2025, that wait time surged to 48.5 days—a 73% increase. For journalists operating on news cycles, these delays are effectively a form of censorship by attrition. By the time a document is released, its relevance has often evaporated.

The Backlog Explosion

The most damning metric is the volume of unprocessed requests. In FY 2016, the federal government sat on a backlog of 115,080 requests. By FY 2025, that figure had skyrocketed to 339,671—a 195% increase. The government is not merely failing to process new information; it is drowning in a sea of its own inertia.

Expert Perspectives: A Wishlist for Reform

To address this systemic rot, the Reporters Committee for Freedom of the Press (RCFP) turned to two of its most seasoned experts: Director of National Litigation Adam Marshall and Staff Attorney Gunita Singh. Their consensus is clear: minor adjustments are no longer sufficient. The law requires a fundamental restructuring.

1. Implementing a Public Interest Balancing Test

Currently, the law’s nine exemptions allow agencies to withhold information with little regard for the public’s need for that information. Marshall and Singh advocate for a "public interest balancing test." Under this framework, agencies would be legally obligated to weigh the government’s interest in secrecy against the public’s right to know. If the disclosure would benefit public health, safety, or democratic accountability, that interest should override the reflexive desire to withhold. This would restore the balance between legitimate national security concerns and the necessity of an informed electorate.

2. Mandatory Penalties for Non-Compliance

The current law lacks "teeth." When an agency misses a deadline, there is rarely a consequence. The RCFP experts argue that Congress should mandate that agencies cover the attorney’s fees of any requester forced to sue due to an agency’s failure to meet statutory response deadlines. By creating a financial disincentive for delay, Congress could force agencies to prioritize their FOIA obligations and, crucially, fund their departments accordingly.

3. Expanding Proactive Disclosure

The "request-and-wait" model is inefficient. If the government were required to proactively post high-demand documents—such as executive calendars, lobbying reports, and Inspector General findings—it would drastically reduce the administrative burden on agency staff. This would shift the focus from reactive gatekeeping to a culture of transparency by design.

4. The Case for a "FOIA Court"

Perhaps the most ambitious proposal is the creation of a specialized FOIA court. Currently, disputes are adjudicated in the general federal court system, which is costly, time-consuming, and intimidating for individual requesters. A dedicated FOIA court—modeled after bankruptcy or international trade courts—could handle disputes on an expedited, paper-only basis.

The success of such a model is already visible at the state level. In Ohio, a specialized public records court resolves most disputes in mere weeks. By moving these cases out of the overburdened district courts and into a specialized venue, Congress could provide the public with a swift, affordable, and expert path to justice.

The Implications for Democracy

The implications of a failing FOIA system extend far beyond the irritation of journalists. When the government hides its activities, it hides its mistakes, its corruption, and its priorities.

The current environment, marked by staff cuts and mass-cancellation tactics, suggests an administration that views the public not as a partner in governance, but as an adversary to be kept in the dark. If these trends continue, the FOIA will effectively cease to be a tool for transparency and will instead become a monument to bureaucratic impunity.

Legislative reform is not merely a technical necessity; it is a moral imperative. As Adam Marshall aptly summarized, the proposal for a FOIA court and stricter accountability measures might seem ambitious, but "it’s not crazy." The current status quo, however, is unsustainable.

If Congress is to preserve the democratic ideal of an open government, it must look past the 2016 reforms and commit to a new, more rigorous era of oversight. The roadmap is clear. The question remains whether lawmakers have the political will to reclaim the public’s right to know before the darkness becomes absolute.

Reporters Committee intern Vivian Rong contributed research to this article.