TRUMP FDA’S CHANCE TO CRACK DOWN ON CHINESE BLACK MARKET HARMING OUR CHILDREN

FOIA was enacted more than 60 years ago under Rep. John E. Moss of California to give the public a legal right to government records. Agencies now process more than 1.5 million requests annually. The system is strained, but the central problem is not volume. It is enforceability.

Courts generally defer to agency declarations that they conducted “reasonable” searches unless a requester produces unusually strong evidence to the contrary. Even when inconsistencies surface, consequences are nearly nonexistent. A 2018 Government Accountability Office review found that over a 10-year period, courts made zero referrals under FOIA’s sanctions provision. The enforcement mechanism exists on paper but is functionally dead.

The dynamic is largely invisible. Agencies rarely deny requests outright. Disputes instead arise over how searches are conducted — which systems were queried, which custodians were included, which terms were used. Those details remain almost entirely within agency control, and courts seldom investigate them.

I encountered this firsthand. In 2015, while a federal employee, I submitted a FOIA request requiring an agency to search two internal email systems using identical terms. Both systems returned hundreds of records, but five significant emails — sent to the same recipients and stored on both systems — appeared in only one. Years later, a follow-up request produced one of the missing emails from the system that had initially come up short.

In 2021, I sought narrow answers in federal court: Who conducted the search, what systems were queried, what methods were used. The agency claimed all five emails had been deleted before the original request. The court acknowledged that at least one had later been produced, yet still accepted the agency’s account and denied even limited discovery.

When courts decline modest verification after the factual record stops adding up, the presumption of agency good faith becomes a shield. Agencies face little downside risk for incomplete searches — and the absence of sanctions reflects that reality.

For Congress, the stakes are direct. Oversight typically begins with informal document requests, not subpoenas. Those requests rely on the same search processes that govern FOIA. If those processes cannot be tested, Congress loses visibility into executive branch activity — not through outright defiance but through incomplete disclosures no one can check.

This is not a partisan issue. Administrations of both parties benefit from a system that lets agencies grade their own homework. But in an era of heightened tension between the branches, the structural weakness is harder to ignore.

The fix does not require overhauling FOIA or imposing sweeping new mandates. It requires making agency search claims verifiable. Three steps would move the needle:

Require referrals to inspectors general when courts encounter objective contradictions in an agency’s account, using FOIA’s existing sanctions framework.

Permit limited discovery when requesters identify concrete inconsistencies — narrow fact-finding into custodians, systems, and search terms, without opening the door to expansive litigation.

‘MILLIONS OF DOLLARS OF WASTE’ AT CAMP EAST MONTANA ICE FACILITY: FEDERAL REPORT

Require agencies to retain basic technical search records for the duration of a request, any appeal, and related litigation. Agencies already preserve similar data for routine IT purposes; this is not a new burden.

These are modest steps. But they go to a fundamental principle: Transparency must be verifiable. John Moss did not design FOIA to be ceremonial. If Congress wants meaningful oversight authority, it must ensure that agency search claims can be tested — not merely trusted.

Dennis Buckovetz is a retired Marine Corps officer, former federal employee, and FOIA litigant.