Today we present an interview with Tuan Samahon, Professor of Law at Villanova University 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?
I teach constitutional law, including our system of separated powers and checks and balances. To my mind, FOIA is a quasi-constitutional “super statute” because of its important role in facilitating oversight of the executive branch. The statute enables the press, oversight nonprofits, and other requesters to discover records and call issues to the attention of Congress and the public. Thus, FOIA promotes political accountability of the governors to the governed. That accountability, however, is undermined if it arrives too late due to processing delays, or if the critical information is obscured by over-redaction of requested records. I want to do my part to make sure FOIA works for the public and that FOIA staff have the tools they need to accomplish their missions. In a sense, our FOIA requesters and the agencies’ professionalized corps of FOIA officers serve as guardians of our constitutional order. Together they help ensure other federal agency employees and officers comply with a statute critical to accountable self-government. My goal is to help those groups accomplish that great end.
What do you hope to accomplish?
A few years ago FOIA celebrated its 50th anniversary. I would like to see the Act endure and celebrate another 50 years by identifying those areas where it can be improved. In 1966, few jurisdictions offered an open record transparency law like FOIA. Today, many do, and we also now have 50+ years of experience with transparency to learn what has worked and what does not. The Advisory Committee is engaging in important thinking and research to help agencies implement appropriate reform so the Act remains vital. I am pleased to be a part of that effort.
What is FOIA’s biggest challenge?
Delay in processing requests is the single biggest challenge, because (potential) accountability delayed is accountability denied. Floods of requests, including many on matters of only narrow concern, impair FOIA’s proper function by creating massive processing backlogs. If FOIA is to serve us well, agencies need a way to more efficiently handle the requests that matter the most to the public, while simultaneously providing the records that individual constituents might need in a timely way.
To accomplish this goal, everyone needs to pitch in. Congress needs to remember you cannot get something for nothing, so agency FOIA services must be adequately funded. Requesters, including frequent filers, need to understand abusive FOIA practice imposes costs on the broader public. And agencies need to think creatively about ways to affirmatively disclose frequently requested types of records without burdening FOIA resources.
Tell us about your favorite FOIA moment.
My favorite FOIA moment is when a federal trial judge in Philadelphia authored a 74-page opinion granting me summary judgment and ordering the Federal Bureau of Investigation (FBI) to release J. Edgar Hoover-era records revealing President Lyndon Johnson’s abuse of the vast investigative powers of the FBI to inquire into … his daughter’s boyfriend. The records also revealed evidence that a Johnson crony, late U.S. Supreme Court Associate Justice Abe Fortas, quarterbacked the effort while a sitting justice. The episode was not the finest hour for good government, but FOIA functioned as intended and the disclosure (hopefully) helps dissuade future abuses of power, because they too may be discovered and brought to light with FOIA.