Kevin H Bell

@kevinhbell.bsky.social

FOIA Lawyer at Free Information Group, PLLC
Kevin {at} freeinformationgroup.com
Signal: KevinHBell.552

Ask me about suing the government!

@knightcolumbia.orgReposted by @kevinhbell.bsky.social

FOIA is plagued by, in simple terms, bullshit, writes @kevinhbell.bsky.social.

Drawing on his experience as an agency FOIA processor and litigator, Bell traces its collapse to disinvestment, judicial backsliding, and public complacency, and calls for new congressional committees to revive it.

@kevinhbell.bsky.social

But you can't break kayfabe: just like pro wrestlers have to sell every hit, the FOIA office has to sell every denial. Even the ones where FOIA precedent and policy had nothing to do with a political leader's decision to deny a request.

Taking requesters seriously would break administrative kayfabe: the FOIA office can’t admit they do not actually make the FOIA decisions. FOIA decisions come from agency managers, leadership, and attorneys who believe their role, understandably, is to “protect the agency.” And these days, agency managers, leadership, and attorneys aren’t acting their best. The job of the FOIA office is thus not to release records, but to generate plausible-sounding reasons for requesters and courts to believe they simply couldn’t be released. The denial is intended to persuade without regard for truth, often simply by reciting the statutory standard and claiming it applies. It is exactly Harry Frankfurt’s definition of bullshit, and it is the legacy of FOIA. President Ford even vetoed the 1974 amendments for bullshit reasons:
@kevinhbell.bsky.social

FOIA started with "narrowly tailored exemptions" but 60 years of agency intransigence has instead generated a “veritable avalanche of FOIA related precedent” The "presumption of disclosure" has always been a dead letter, and everybody knows it

Nine narrowly tailored exemptions have thus metastasized into a “veritable avalanche of FOIA related precedent” as agencies go to “great expense of litigation . . . display[ing] an attitude that could be interpreted as . . . ‘If you want this information, sue the Government’” before releasing documents under protest. From personal experience, the presumption of disclosure is a dead letter. Recommended releases are pared down by every step, and even a combative pro-disclosure FOIA officer must pick their battles carefully. More career-minded experts quickly learn management’s preferences for what kinds of information to withhold, and personal peccadilloes quickly accrete into permanent presumptions. Virtually every email address in government is withheld as a “clearly unreasonable invasion of personal privacy” under Exemptions 6, 7(C), and (at DHS) even 7(F)! (Exemption 7(F) applies where release of the information would endanger the life of a “small and specific group,” such as the “family members or coworkers of a named individual” and is not generally used for stuff like desk phone numbers and emails.) The broad nature of the rules thus facilitate abuse, and past legislative fixes, like the foreseeable harm standard from the 2016 FOIA Improvement Act, have fallen short. It has been leveraged in litigation, but for most retail requesters, the only change is to the boilerplate: “Please know I have considered the foreseeable harm standard in making this determination.” Requesters want to be taken seriously. They turn to litigation for the same reason we jam “0” and shout “agent” at customer service phone trees: the process seems designed to frustrate you into giving up.
@kevinhbell.bsky.social

It is designed to explore in detail, and in triplicate, every possible reason NOT to release a record, before finally, begrudgingly, admitting that "ok, you got us, disclosure is the default"

Processing is not about releasing records though; and it is slow and expensive by design. It is a painstaking series of redundancies taken by risk-averse FOIA offices to protect themselves from internal institutional backlash: Find the record Identify the relevant interests is the requester interested in this record, i.e., is it responsive? will release harm an interest the agency cares about? inquire with program office inquire with interested agency leadership is the agency legally allowed to care about that interest? if not, is there another plausible interest that can be asserted for the same info? is the agency legally required to care about any other interest? is someone else interested? refer for interagency consultation ask private partners if they would like it kept confidential is there an agency policy or custom to always redact certain kinds of information regardless of interest? Redact information affecting all identified interests Repeat step 2 & 3 twice each with your supervisor and manager Awareness Review! repeat step 2 & 3 with interested program offices repeat step 2 & 3 with interested leadership office make appropriate changes repeat Step 4 to address changes made in the awareness consultation
@kevinhbell.bsky.social

Everybody knows that FOIA is expensive and underfunded, but nobody can really explain why. Releasing a record is free! You can attach it to an email! The cost comes from "the process" - designed by generations of lawyers to be as cumbersome as possible

FOIA is great because it tasks agencies with opening their books to public inspection. This is also its fundamental weakness: it is administered by agencies, which are staffed by people. Those people, even where decent, public-minded, and conscientious, are dedicated to their agency’s mission. Even worse, some of those people are lawyers, specifically trained to protect their clients’ interests at all costs, and those interests do not align with disclosing agency secrets. The adversarial American legal system, the legalistic nature of government, and the threat perceived from FOIA make on-demand disclosure a fantasy. FOIA is, at best, an inconvenient unfunded mandate, if not a threat to agency mission or, even worse, a career. Some research suggests merely receiving a request can harm civil servants’ trust in the public they serve.
@kevinhbell.bsky.social

Secrecy is, and has been, the last refuge of the bureaucrat. In 1974 Congress got together to do something about it, then we all just kind of forgot why it mattered in the first place. We've let "delay, deny, hope they die" become the default stance of transparency in America all over again.

Maybe FOIA has never worked. The concerns of 1974 are essentially unchanged, excepting that the conferees of the 93rd Congress had yet to learn of the Deliberative Process Privilege. 2. Access to agency deliberations to learn real reasons for agency action, and not just the polished final published action, was an explicit purpose of Congress. As Sen. Ted Kennedy, Senate sponsor of the 1974 amendments, explained in his introduction of the bill on May 30, 1974: “The people can judge public officials better by knowing what they are doing, rather than only by listening to what they say. But to know what Government officials are doing, the people must have access to their decisions, their orders, their instructions, their deliberations, their meetings.” Fifty-two years ago, Congress knew that “if there is a way that a law can be interpreted to promote secrecy and to deny the public access to public records, some Government officials will find that way.” 3. Rep. Thone (R-NE), 120 Cong. Rec. H1787-H1803 at 251 (1974). FOIA was strengthened in response to the realization that, faced with an “imperial Presidency . . . . and the inherent rules and criteria-making powers of the bureaus and departments of the executive branch, Congress ha[d] become the fifth wheel on a hearse.” As Rep. Bill Alexander (D-AR) observed in urging the override of President Ford’s veto of the 1974 bill, as patriotism is the last refuge of scoundrels, so too “withholding of information from the public is the ‘last refuge’ of the bureaucrat.”
@kevinhbell.bsky.social

FOIA is often a convenient prop or fig leaf to hide behind. Kash Patel used the failure to use FOIA as evidence of bad faith by reporters! You try filing a FOIA at FBI, Kash, and call me in 2031. RFK himself spent years demanding transparency at HHS, got the job, then immediately fired the staff

FOIA cannot seem to escape bullshit FOIA cannot seem to escape bullshit. Supporters speak as though it provides meaningful on-demand transparency, because we believe it is worth fighting for and possible to achieve. Others find FOIA a convenient prop. FBI Director Kash Patel accused the Atlantic magazine of purposefully failing to file “a simple FOIA” before reporting that the FBI requested breaching equipment to open his hotel room when he was nonresponsive. Perhaps the Atlantic did not turn to FOIA because another request seeking similar materials was given an estimated response date of 2031. Prolific FOIA user and litigant Robert F. Kennedy Jr. became Health and Human Services Secretary on a promise of “radical transparency” and, in his first hundred days, eliminated the entire Centers for Disease Control FOIA office and most of the FOIA staff at the Food and Drug Administration and the National Institutes of Health.
@kevinhbell.bsky.social

Promises of transparency are easy to make and even easier to break. Let's explore how awash every step of FOIA is in bs, starting with the most transparent admin in history's Budget Office telling the NYT on the record that transparency spending is "waste"

In debate to override President Ford’s veto of the 1974 FOIA amendments, Rep. John Dent (D-PA) observed that, in July 1776, our Republic was founded by a people “tired of hearing nothing from Mother England but dictums as to how to conduct their affairs and where they were to send taxes.” Now, 250 Julys later, we come back to government by imperial decrees which rebuke explanation. OMB has explicitly divested the executive branch from transparency. In its own words: The number of FOIA requests from leftist activist groups has exploded due to Trump Derangement Syndrome and it would not be serving the American peoples’ desire for a smaller, leaner government to waste money hiring additional FOIA processors to address this bourgeoning cottage industry of political activists. In working with limited budgets, we choose to hire ICE officers instead of FOIA processors.
@motherjones.comReposted by @kevinhbell.bsky.social

With the help of Republican officials, ICE has quietly arrested hundreds of people in Florida per day. Watch the latest dispatch from journalist Amanda Moore (@noturtlesoup17.bsky.social) out of southwest Florida:

@kevinhbell.bsky.socialReposted by @kevinhbell.bsky.social

Today the Free Information Group, PLLC, celebrates our first anniversary! In our first year of suing the government we've opened or appeared in 17 lawsuits against the Trump Administration and one noteworthy case against DC.

@kevinhbell.bsky.social

Breaking the TSA AFGE Union and its members' conditions of employment is straight out of the DHS chapter of project 2025, and the motivation for the aborted "TSA Gold+" privatization program this summer. I think they're still flailing to find the right way to emmisserate security screeners

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