Today we present an interview with David Cuillier, Director of Graduate Studies and Associate Professor at the University of Arizona School of Journalism and a member of the FOIA Advisory Committee. This is part of a series of posts on the Committee, whose members are FOIA experts from inside and outside of government who are appointed by the Archivist of the United States.
Why did you seek to serve on the FOIA Advisory Committee?
As a long-time requester primarily at the state/local level, and a researcher of public record law performance, I wanted to learn more about the culture and issues surrounding federal FOIA implementation, and perhaps suggest practices that other jurisdictions have found helpful, for the benefit of agencies and requesters. FOIA is an incredibly awesome tool in many cases, and has brought to light important issues for the public, but it is increasingly difficult for citizens to get information they need to adequately self-govern. I think it is extraordinarily brilliant of the National Archives and Records Administration to bring together requesters and agencies in figuring out solutions for making the system work better for everyone involved.
What do you hope to accomplish?
I hope to bring different perspectives and ideas to the table, based on the research and what seems to be working in other government jurisdictions. Sometimes we can get so caught up in the details, and so immersed in the FOIA matrix, that we don’t pop our heads up and look around to see potential alternatives. For example, we focus on the nuances of administering fees, but stepping back and looking at it, given they recoup a tiny portion of the cost of FOIA, have we asked if they are really necessary? Some countries charge no fees, and Canada moved to a system of a flat $5 fee and an almost entirely electronic records delivery system, while putting in place procedures to thwart vexatious requesters. Similarly, we focus so much on the law, but research indicates that other factors are more important in actual compliance, such as organizational culture. So should we focus additional energies on training and education? Questioning is good.
What is FOIA’s biggest challenge?
The biggest challenge to FOIA is institutional inertia that inhibits significant change. That’s just the reality of democracy – it’s designed to avoid monumental upheaval. Sure, every decade or so some beneficial amendments get passed, but they often languish as unfunded mandates or are quickly undermined by procedural work-arounds. So that means FOIA and its implementation practices have fallen behind other nations (ranks 72nd in the world in transparency strength). U.S. FOIA is like a 1966 Ford Mustang. A classic, for sure, but newer cars have benefited from decades of innovation – so a 2021 Hyundai Sonata will have better safety features, gas mileage, AC, sound, road handling, reliability, etc. That’s one reason Afghanistan has the strongest FOIA law in the world – because it’s relatively new, adopted in 2018. Now, that doesn’t mean a strong law results in better transparency. Russia’s law is stronger than U.S. FOIA, but I doubt it is any easier getting visitor logs from the Kremlin. That points to the importance of nurturing a culture of transparency. We can’t just rely on the law – we need to look at the system holistically. Many states and municipalities, as well as smaller nations, can be more nimble in applying solutions to help requesters and agencies – to provide information quickly without even relying on FOIA. We can learn from them. A FOIA-type process will probably always be needed, but more proactive dissemination of information is needed, through a shared culture of openness and accountability.
Tell us about your favorite FOIA moment.
My favorite FOIA moments are when I see incredibly important information getting to the public that makes the world better. We see this daily in news reports based on records obtained through FOIA, such as: How big businesses got small business loans through the Paycheck Protection Program. Residents of Veterans Affairs medical centers who have died of COVID. Nearly 1,000 migrant children were separated from their parents for longer than a year. All of these stories could not be done without FOIA, and there are thousands more. James T. Hamilton, an economist from Stanford, calculated that for every dollar spent on records-based investigative reporting, society benefits $287. That is a huge return on investment. Information improves our lives. Information saves lives. This is expressed incredibly well in a video about India’s right-to-know law. Requesters and agency FOIA officers should feel proud as they protect democracy and help Americans, record by record.