FAST FIXES FOR FOIA

The effectiveness of the Freedom of Information Act has been hindered throughout its history by delays in processing requests, questionable denials of information, and a dominance of commercial requests. Using an economic approach, this Article argues that cost asymmetries drive these difficulties: agencies incur high costs compared to entities that file requests ("requesters") at the processing stage, whereas requesters have high costs relative to agencies at the judicial review stage. To mitigate these asymmetries, this Article proposes three relatively simple changes that would markedly improve its implementation: allowing agencies to retain processing fees, increasing these fees, especially for commercial and expedited requests, and strengthening FOIA's attorney fee-shifting provisions. This Article contends that these "fast fixes" for FOIA would more effectively strengthen government transparency than the significantly more complex legislation that Congress has recently considered.