FOIA Fellows as Freedom Fighters

Jack Wroldsen, FOIA Fellows as Freedom Fighters: An Independent and Privately Funded FOIA Commission of Rotating Professionals (Oct. 31, 2024). 108 Marquette L. Rev. (forthcoming 2025), available at SSRN: https://ssrn.com/abstract=5043146 or http://dx.doi.org/10.2139/ssrn.5043146. “The Freedom of Information Act (FOIA) is a hallmark of U.S. democracy, designed as an outsider element that foists transparency on a government bureaucracy whose centripetal forces spin inexorably toward self-preservation and secrecy. The U.S. pioneered the worldwide FOI movement in 1966, but other countries have since surpassed the U.S. in FOI design and performance. For example, when the author’s colleague sent parallel FOI requests to six Western democratic countries, all but the U.S. responded substantively within days, weeks, or months; the U.S. took four and a half years. This article analyzes the FOI regimes of the six countries and emphasizes the political pressures that led each country to enact FOI legislation, despite persistent executive and bureaucratic opposition. Yet even while identifying other countries’ successful FOI innovations, the article also pinpoints the inherent conflicts of interest that today’s flawed FOI models retain. Consequently, the article’s thesis advances a unique, outsider proposal to remedy such intractable conflicts of interest. First, an independent FOIA commission in the U.S. should be led by FOIA Fellows—professionals from the private sector, such as technologists, lawyers, organizational managers, and journalists, who rotate into short-term government fellowships to implement FOIA with an independent mindset, on behalf of the people, not on behalf of the bureaucracy. Second, FOIA Fellows should be funded by wealthy private parties that have an interest in preserving and protecting democracy and transparency, such as individuals like Elon Musk or organizations like George Soros’ Open Society.  The article’s proposal is exceptionally timely in view of President-elect Trump’s announcement of the Department of Government Efficiency (DOGE), to be headed by none other than Elon Musk (along with Vivek Ramaswamy, another outsider, entrepreneurial voice). The goals of DOGE are complementary to this article’s FOIA proposal. For example, DOGE will “take suggestions and concerns from everyday Americans” and post all its actions “online for maximum transparency.” Also, after the announcement of DOGE, Musk declared, “Threat to democracy? Nope, threat to BUREAUCRACY!!!” Building on the outsider momentum of DOGE, now is the opportune time to redesign FOIA so that outsiders can bring transparency to the inside of a stubbornly opaque bureaucracy.”