Apply sunshine as disinfectant: Investigating FOIA laws with Patrick Warren
The late Supreme Court Justice Louis Brandeis argued that publicity was a “remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants.” Looking for ways to fight social and industrial corruption, the federal government enacted The Freedom of Information Act (FOIA) in 1966. Over the past sixty years, many states have adopted similar laws on various levels. But questions surrounding the right of public disclosure, the purpose of FOIA laws and the results of bringing corruption to light are still topics of debate.
Earlier this year, Economics Professor Patrick Warren, Clemson University, and Accounting Professor Adriana Cordis, Winthrop University (Clemson Economics PhD ’08), co-authored a paper with Brandeis’ adage and these questions in mind: “Sunshine as Disinfectant: The Effect of State Freedom of Information Act Laws on Public Corruption.”
Recently, I had the opportunity to discuss FOIA laws with Dr. Warren and learn more about what he discovered in his research:
Q: What types of outcomes are you exploring?
We examined the rate of convictions of state and local public officials for public integrity offenses (bribery, misuse of office, and the like). We examined states that implemented strong FOIA laws and matched them up with similar states that made no major changes, and we looked for a relative change in the number of convictions of state and local officials for corruption offenses in those states that changed their FOIA law. Finally, we used the federal officials in the given state as a control, since federal official are already accountable to strong federal FOIA laws. So for example, if you are a federal contract employee, all of your documents and contracts are “FOIA’ble.”
Q: What significant results did you find?
In the past 30 years, nearly all states had major changes. The key is that they happened at different times. From our research, we found that right after a FOIA law was implemented, there was a big spike in convictions of state and local officials who were brought up on corruption charges, but no concomitant move with federal officials. These FOIA laws provided new powers for investigators to uncover any evidence of wrong doing, which resulted in more conivctions.
Over time, the conviction rate trends down, settling at a lower, steadier level than before the policy change. The potentially corrupt officials realize they can get caught through these new channels and they do one of two things: they simply quit being corrupt or they change their procedures so they can’t get caught. Through our research, we found it is hard to disentangle these two issues.
Altogether, these patterns are consistent with an approximate doubling of a probability of conviction and a final decline of convictable corrupt acts by up to 60 percent.
Q: Is there a link between FOIA laws and effective investigative journalism?
There are a lot of reports, without much data to support them, that claim FOIA laws are an important tool in investigative journalism to uncover evidence of wrong doing. Over the years, many Pulitzer Prize awards have been given to individuals whose reporting involves a level of FOIA-style inquires, but the relationship between FOIA and corruption has never been carefully investigated with data. The current research supports this intuitive idea with the most extensive data available.
FOIA laws seem to have a greater influence within states that have a more robust media presence. The research shows that states with strong investigative journalists have more effective FOIA laws, and FOIA laws create more effective investigative journalists by making it easier for them to expose state corruption.
Q: What are some drawbacks or limits to current FOIA laws?
There are two components at play: the manpower costs to respond to FOIA requests, and the fear of disclosing information affecting the deliberative process in a meeting. Often the individuals who have to respond to FOIA requests claim it is a waste of time and a drain on their resources. Within the context of a meeting, if a person is playing devil’s advocate, they are less likely to be highly critical or postulate crazy scenarios if the meeting is “FOIA’ble.”
It is important to note that not everything is “FOIA’ble.” According to many FOIA laws, certain types of documents and evidence are out of the scope of the law, like pre-policy discussions.
Q: How does your research inform future reform or enactment of FOIA laws?
The evidence suggests that strengthening FOIA laws has two offsetting effects: reducing corruption and increasing the probability that corrupt acts are detected. Our research found that it is important for there to be a penalty for not complying with a FOIA request.
The most effective laws include strong penalties — jail time, fines, and options for investigative journalists to recover court costs if the FOIA request went to court. There needs to be a sense of liability to comply or there seems to be no action. Journalist are more likely to drop a case if they have to bear the costs of going to court against the organization.
Time limits are also important for success, but not as much as punishments for failure to comply. There are FOIA requests that have been with the DOD and CIA for more than a decade.