America First Legal Vice President Dan Epstein appeared before the Senate Judiciary Committee to discuss potential reforms to the Freedom of Information Act (FOIA). During his testimony, Epstein focused on modernizing FOIA to address issues of systemic delays and litigation costs, as well as increasing transparency and accountability in the federal government.
Epstein began by acknowledging the significance of FOIA as part of the checks on federal bureaucracy, quoting the Supreme Court’s explanation of FOIA’s purpose: "The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." He highlighted the necessity for modernized transparency in today's technologically advanced world.
During his address, Epstein identified three critical areas needing reform: proactive disclosure requirements, pattern or practice claim review, and improvements in the administrative process to reduce litigation costs. He emphasized that proactive disclosure would compel agencies to publicize information even without specific requests, advocating for the use of technology to enhance transparency.
Epstein explained the challenges of pattern or practice claims, where plaintiffs must demonstrate an agency’s consistent failure to comply with FOIA requirements. He proposed that Congress should clarify these claims as arbitrary and capricious, subject to judicial review.
Regarding litigation costs, Epstein mentioned the rising number of FOIA lawsuits attributed to agency delays. He noted that despite provisions for attorney's fees when plaintiffs "substantially prevail," such determinations can be uncertain. Epstein suggested Congress should redefine the standard for "substantially prevailing" to include any situation where an agency is judicially compelled to take action refused during the administrative process.
Finally, Epstein touched upon the administrative role of the Office of Government Information Services (OGIS), advocating for congressional direction to enhance its effectiveness in mediating FOIA disputes.
Epstein concluded with a call for legislative changes to allow FOIA to function more efficiently in an increasingly complex bureaucratic landscape.