Overseeing Oversight

Accountability is at the core of democratic governance. In the United States, the administrative state is formally situated within the executive branch, but the unelected nature of agency officials, combined with the vast power they wield, has long been cause for concern. A crucial tool for establishing accountability within this so-called “Fourth Branch” is the Freedom of Information Act (FOIA), which provides ordinary members of the public with a mechanism for direct oversight of how administrative agencies function. Similar right-to-information laws have been implemented in over one hundred countries. However, in contrast to most of its international counterparts, the FOIA system is severely undermined by its own lack of institutional oversight. Apart from the rare case that makes it to court, agency decisions against releasing records to the public generally are not subject to meaningful review. While there has been no shortage of scholarship documenting the practical challenges with FOIA, this Article is the first to connect these problems to the institutional design choice at the root of FOIA’s oversight deficit. The Article traces the history of FOIA, including the most recent reforms that introduced a FOIA ombudsman office, and documents how the remedies for agency recalcitrance are inadequate to protect the public’s right to information. It then presents a comparative survey of global right-to-information models to pinpoint precisely what design aspects are essential to an effective oversight regime. It argues that the strongest models rely on an independent administrative body, such as an information commission, which is located outside of the executive branch entirely and has the power to order administrative agencies to release records when the commission’s review results in a conclusion that withholding is unjustified under the law. At a time when abuses of executive power have jolted the nation’s collective consciousness, and when the United States’ democratic institutions have faced their most serious threat since the Civil War, there is enormous urgency to improve our mechanisms for democratic oversight, namely through developing oversight of these very structures. This Article documents the democratic deficit underlying our current FOIA remedies and analyzes better institutional design alternatives