Today we present an interview with Kel McClanahan, Executive Director of National Security Counselors, which advocates on FOIA matters, 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?
The Committee is one of the few opportunities for government FOIA professionals to actually work together with non-government actors to solve–or sometimes just identify–problems with the system. I fully believe that, while there are obviously bad actors in some government agencies, most FOIA specialists actually want to do the right thing and foster transparency, and sometimes the best way to have a meeting of the minds is to do something like this Committee. As a litigator, I’m comfortable with using the court system to force agencies to comply with the law, but I–and most requesters to be honest–would rather it didn’t come to that.
What do you hope to accomplish?
There is often a tremendous disconnect between the congressional intention behind a FOIA provision and the agencies’ and courts’ interpretation of that provision. One of my goals on the Committee is to bridge that gap, to find ways to make it clear to agencies and courts what Congress intended, while making it clear to Congress how the agencies and courts are interpreting the law. FOIA works best when there is no daylight between the intention of the law and the interpretation of the law, and anything short of that breeds inconsistency, arbitrariness, and unnecessary litigation.
What is FOIA’s biggest challenge?
FOIA’s biggest challenge is the problem posed by the Department of Justice’s consistently aggressive defense of agency actions. This isn’t to say that all FOIA plaintiffs are correct or that all agencies are incorrect, but there is very little incentive for an agency to be “good” at FOIA when it knows that no matter what it does, a DOJ lawyer will voice a full-throated defense of its action or inaction should the requester sue. Policy statements, memos, guidance documents, trainings, and best practices can accomplish only so much when the agency knows that when push comes to shove, DOJ has got its back no matter what.
Tell us about your favorite FOIA moment.
My favorite FOIA moments are when the information I obtain–or help someone else obtain–serves another purpose beyond transparency or accountability for its own sake. It’s when I get records which help a whistleblower prove their allegations, help an employee who has suffered employment discrimination prove their case, help a prisoner prove their innocence, help an immigrant be granted asylum, and the like. Those are generally the most rewarding FOIA stories, because you can see how FOIA has directly changed someone’s life for the better.