Today we present an interview with Ryan Mulvey, Policy Counsel for Americans for Prosperity Foundation (AFPF) and a member of the 2024-2026 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 wish to serve on the FOIA Advisory Committee?
For over a decade, my legal practice has focused on public-access issues and, specifically, the federal Freedom of Information Act. I believe I’ve gained a tremendous amount of insight into how FOIA is (or isn’t!) working—especially in the courts—and what can be done to improve its administration. I’ve also gained helpful insight through my involvement with the American Society of Access Professionals (ASAP). (I’ve served as ASAP President since January 2021.) It’s been such a pleasure, as a requester, to interact one-on-one with government FOIA professionals at ASAP training events. Requester-agency interaction helps to build a better collaborative culture. I have deep appreciation now for what the “other side” faces. I hope my involvement with the current term of the FOIA Advisory Committee provides me with an opportunity to leverage these experiences to create stronger, more compelling recommendations that appeal across the board: to requesters, to agency employees, and to everyone interested in open and transparent government.
How do you think this experience will help you in your work?
I always jump at the opportunity to engage with others about FOIA. My colleagues on the Committee are true professionals with impressive expertise. We’re learning from each other, especially when we disagree! It’s intellectually healthy to challenge your own views, and that’s no less true when it comes to FOIA. By the end of the term, I hope to walk away from this experience with a more developed understanding of the statute, how it’s working “on the ground,” and what needs to be done to make it better.
What is FOIA’s biggest challenge?
FOIA faces many challenges. I’ll highlight two of the more troubling trends.
First, I don’t believe FOIA is best suited to deal with the challenges of a modern, electronic world. Agencies create so many records; the volume is tremendous, and it will only continue to grow. Taken together with the increasing number of requests filed each year, you have a recipe for disaster. At current staffing and funding levels, agencies simply can’t keep pace. But resources aside, technology presents other challenges. In my experience, agencies and courts haven’t dealt well with evolving forms of communication, such as text/instant messages, video conferencing software with transcription capabilities, and various forms of automatically generated electronic records. These forms of paperless, non-email communication present unique records management and disclosure problems. Similarly, the seemingly inevitable introduction of artificial intelligence to FOIA processing, while promising great efficiency, also presents a real threat. I worry that automated redaction systems, for example, will undercut the discretionary nature of FOIA’s statutory exemptions and help create a default presumption of withholding rather than one of disclosure, which is what Congress has always intended.
Second, I think Congress needs to reform how judicial review proceeds under FOIA. There is a lot of judicially created doctrine that is inconsistent with FOIA’s presumption of openness and its promise of accountability. For example, certain jurisdictions refuse to enforce FOIA’s “reading room” provision [requiring certain records to be posted on websites]. And the tendency of courts to afford wide deference to agency declarations, while stretching personal-knowledge requirements and limiting discovery, seems inconsistent with FOIA’s de novo standard of review [requiring a fresh look at the initial processing.] Finally, in terms of resources, the volume of FOIA litigation has outpaced the ability of courts to deal with cases in a timely manner. The whole review process needs to be reformed and made more equitable to requesters. Viable alternatives to litigation, such as a strengthened mediation process, are sorely needed, too.
Tell us about your favorite FOIA moment.
I love arguing in court, especially when a FOIA case presents a novel legal question. I’ve had interesting cases before the D.C. Circuit on questions of agency control and the definition of a “record.” I also enjoy providing amicus [friend-of-the-court] support on doctrinal FOIA questions. Several months ago, I filed a brief on whether courts should entertain clawback motions for records agencies believe have been inadvertently disclosed. There is no shortage of difficult FOIA questions. I have a real passion for digging in and trying to advocate for what I see as the right outcome!
You must be logged in to post a comment.