Today we present an interview with Alexandra Perloff-Giles, an attorney with Gibson Dunn & Crutcher’s Media, Entertainment and Technology Group and a member of the 2020-2022 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 and who are appointed by the Archivist of the United States.
Why did you seek to serve on the FOIA Advisory Committee?
As the First Amendment Fellow at The New York Times, I worked closely with journalists across the newsroom on FOIA matters and managed The Times’s FOIA litigation docket. I have seen FOIA at its best — when journalists obtain information they can use to help inform the public about important issues of our day — and FOIA at its worst — when the redactions are so extensive nothing meaningful can be gleaned, or when agencies provide estimated deadlines for responding several years out. I believe not only that FOIA is a powerful tool for investigative journalists but also that it plays a critical role in keeping the government accountable. It’s a real honor for me to serve as a media representative on the FOIA Advisory Committee to help fulfill that promise.
What do you hope to accomplish?
The lofty ideals of sunshine laws are one thing, but I am very interested in the practical side of FOIA. OK, the statute says a response in 20 business days, but realistically when is a requester actually going to get information and will it still be newsworthy by then? Is it possible to get someone on the phone to discuss narrowing a request? How can journalists help FOIA officers separate the wheat from the chaff so that FOIA officers don’t waste time reviewing and redacting documents that are not of interest? I’m particularly interested in seeing how technology (e-discovery tools) can be used to speed up the process and make the release of documents pursuant to FOIA more efficient.
What is FOIA’s biggest challenge?
From the government’s perspective, I imagine the biggest challenge is the sheer volume of records created in the digital age. As anyone who has ever done document review in private practice knows, e-mail permits vastly more “records” to be created than anyone anticipated when FOIA was signed into law in 1966. From the requester perspective, timeliness and overuse of Exemption 5’s deliberative process privilege.
Tell us about your favorite FOIA moment.
Hard to choose, but one of my favorites was seeing the results of a FOIA suit The Times brought for demographic data about coronavirus cases featured on the front page. There is often a long delay between when a FOIA request is submitted and when reporting comes out of that request — several years, typically, if litigation is involved. In this case, however, in less than three months, we went from filing a request to making telephonic court appearances to publishing a major story (and podcast episode!). That also meant unique opportunities for me, as an attorney, to collaborate with The Times‘s hugely talented data journalists and graphics experts. (I should also say, in fairness to CDC FOIA Director Roger Andoh who has been a fantastic co-Advisory Committee member and who shares my enthusiasm for making FOIA more efficient, that the CDC’s FOIA officers and scientists were real partners in bringing accurate information to light. There was never much of a fight over withholding in that case; rather, that was an instance of “sometimes you have to sue to jump the queue!”)