In January 2025, I received a response to a Freedom of Information Act request I’d sent to Immigration and Customs Enforcement in December—of 2020, four years earlier. The law plainly states that federal agencies have 20 business days to provide a substantive response to all FOIA requests. But ICE didn’t care.
“Before we begin the time-consuming review process,” the email stated, using the same boilerplate language I’d been given by the agency in response to other, unrelated FOIA requests, “we want to ensure that you are still interested in continuing the processing of this request.”
This Saturday is not just the 250th anniversary of the United States. It’s also the sixtieth anniversary of FOIA, one of the most critical tools for government transparency in the U.S., which has been used to uncover severe government wrongdoing. Alas, the law—or rather, the government’s adherence to it—is broken.
Over the past 15 years, in my work at the nonprofit Center for Constitutional Rights, I’ve filed and helped to litigate dozens of FOIA requests, primarily related to federal law enforcement programs run by our bureaucracy of acronyms—ICE, FBI, DHS, DOD, and many more. It has become increasingly apparent that most federal agencies don’t take these inquiries seriously unless, and until, we take them to court. This is not how it’s supposed to work.
While the Trump administration’s mass purging of federal employees and offices has created new roadblocks to filing records requests, government resistance to the law is not new. In fact, President Lyndon B. Johnson somewhat reluctantly signed the FOIA into law on July 4, 1966, hedging on how much access the public might have, especially related to “individual privacy” and “national security.” In the decades since, both Republican and Democratic administrations have eroded the ability of ordinary people to get useful and timely information via the act.
By “useful information,” I am not talking about whether alien life has escaped from Area 51 or what took place on the grassy knoll. As the manager of CCR’s Open Records Project, every month I file FOIA requests or train advocates, lawyers, and journalists on how to draft their own. The requests we file support people who desperately need individual immigration files for detained family members, grassroots organizations looking to shed light on surveillance technology Border Patrol uses, or advocates deeply concerned with how the administration’s policies threaten transgender people across the country. But law enforcement agencies have found numerous ways to delay and ultimately force requesters to give up out of sheer frustration.
For instance, an agency might simply never respond, respond years later, send a boilerplate response accusing the requester of submitting an “overly broad” request, or, if the agency actually produces documents, redact those records so severely that they are useless. A person is then typically left with only one choice—pursue legal action—but lawyers often require thousands of dollars in fees. Even if you do get into court, agencies can still find ways to delay providing records for months if not years, often making the records irrelevant by the time they are received. And federal judges typically defer to government officials, creating an increasingly immense docket of case law supporting government secrecy rather than openness the law is supposed to provide.
A few examples from FOIA requests I’ve filed show the lengths to which agencies will go to hide the most basic information. Simple data points like the number of medical staff employed at an immigration detention center have been redacted from public view due to potential “hostage taking.” A former director of ICE’s Chicago office “lost” archives of emails when he copied them onto a corrupt external hard drive, but he should have responded to the FOIA request years before then.
As it was Congress that forced the executive branch to sign FOIA into law and later expand it, Congress has the power to do so again. But our representatives need to look beyond vague reforms such as integrating AI technology or pumping more funding into the already bloated budgets of the Homeland Security or Defense departments. I asked several colleagues with over a decade of experience writing and litigating FOIA requests to imagine more specific and concrete ways of making FOIA an effective tool for transparency.
Maryland attorney Amber Qureshi suggested that if an agency fails to comply with FOIA deadlines, courts should forbid the agency from withholding certain types of discretionary information, which it might otherwise do. “Barring an agency from applying discretionary exemptions would further FOIA’s purpose of full agency disclosure and speed up processing times,” she told me.
Andrew Free, a lawyer and investigative journalist based in Georgia, also suggested accountability measures. “Congress should authorize per-day, per-record penalties for agencies that fail to substantively respond to FOIA requests.” He noted that Washington state and New Mexico already employ similar rules in their states’ open records laws.
The incredible deference many federal judges afford law enforcement officials to hide almost any material from public view also remains a major problem. For instance, so-called “Glomar” responses, where an agency refuses to acknowledge whether it even has responsive material, should be outlawed. Congress members could create a new agency to oversee and audit FOIA, similar to the Committee for Open Government in New York, which regularly promulgates advisory opinions on the law.
Recently, a government attorney alleged that a FOIA request of ours was so large it would “shut down the government.” But none of us who continue to pursue these requests should be intimidated by such hyperbole. Though broken, the FOIA still remains a useful tool, and we need its help in combating the culture of secrecy that permeates our political class while we demand that Congress strengthen the law.
Sixty years ago, despite his reservations about FOIA, President Johnson said, “I signed this measure with a deep sense of pride that the United States is an open society in which the people’s right to know is cherished and guarded.” As I’ve seen firsthand, the people’s right to know is no longer cherished by leaders in the executive branch, and it’s not being guarded by those on Capitol Hill. As the Trump administration goes to lengths to conceal its crimes and corruption, there’s never been a more critical time for the politicians who still believe in the principle of FOIA to not only defend it, but expand it.
