FOIA was signed into law on July 4, 1966 and went into effect on July 4, 1967. Nader reported out his research in August 1969. Now, fifty years after the statute’s enactment, Nader’s critique is worth revisiting. It is a fascinating FOIA artifact, a look at how FOIA worked before thousands of court decisions shaped its contours. As things have turned out, the problems Nader highlighted were not just inevitable issues that any new system encounters initially. They are, instead, practices that have persisted through time. Moreover, five decades of litigation, which agencies have regularly won, have legitimized these practices as proper and legal, and constricted FOIA’s scope and efficacy. Congress at various times has stepped in to fine-tune the statute in the face of agency recalcitrance and the court decisions that enabled it, but in the end the legislative fixes have fixed very little. That result reflects both the modest goals of the remedial legislation and the powerful hand of the courts in shaping FOIA.
But none of this progress takes away from the central point of Nader’s earlier article: FOIA itself is deeply flawed—so deeply flawed, in fact, that its terms have allowed agencies to defeat the very purpose of the act. From the beginning, FOIA contained broadly worded exemptions that gave the agencies wide latitude to shield records of internal deliberations, declare investigative files confidential, and withhold the identities of citizens, even when these citizens had voluntarily sought governmental favors or otherwise inserted themselves into public controversies. FOIA should have been fertile ground for restorative judicial intervention, with courts giving meaning to the statute’s core purpose despite its flawed drafting. Quite the opposite has happened. While paying lip service to happy FOIA platitudes about the presumption of openness and the narrowness of FOIA exceptions, the courts have crafted a line of precedents that exacerbate the precise concerns flagged by Nader in 1979.
Nader’s 1979 article chastised agencies for resorting to “primitive responses”—losing documents, lying about the existence of records, showing favoritism to corporate requesters—but his main focus was on the agencies’ misuse of the law.8 Some fifty years later, what is striking is that a vigilant judiciary has not rooted out the misuse; instead the courts have effectively institutionalized it as legal and proper. The bad agency behavior identified by Nader has become the law.
Lost in that decision is the idea that Congress may have meant what it said when it imposed tight deadlines or that Congress might have an obligation to provide agencies with the resources needed to make sure citizens’ FOIA rights are vindicated. Bizarrely, in the battle of equities between citizens eager to learn what their government was up to and the entrenched federal bureaucrat being “deluged” by the American public, the latter managed to capture the sympathies of the courts. It may well be that one of the great democratic strengths of FOIA—anyone can make a request at any time to any agency for any reason and is entitled to the same consideration as every other requester—strikes judges as giving birth to an inherently unworkable system, and they choose not to further burden the system by insisting on meaningful deadlines.
Under current law, most requests are to be processed within twenty business days.14 Last year, the government reported that “simple” FOIA requests were processed in an average time of twenty-three days.15 But that statistic is misleading. A different experience awaits those who make meaningful FOIA requests aimed at documents for use in investigative journalism or in-depth research. A request deemed “complex” took, on average, more than 120 days.16 The backlog of requests still exceeds 100,000 across the federal government.17 And responses stretching into the years remain a staple of FOIA. In a 2004 case, the New York Times was told by the Department of Labor that it would need 30,290 hours—15 work years—to respond to The Times’s request for data on workplace injuries and death.18 None of the averages provided by the government takes into account what happens when the request ends in a denial—and 78% of requests were denied in full or in part in 2015.19 At that point, the requester faces the further delay of administrative appeals and litigation, which itself will often take years.
The D.C. Circuit has been even blunter: “Exemption 5 of FOIA does not contain a time limit. We must adhere to the text of FOIA and cannot judicially invent a new time limit for Exemption 5.”28At issue in the case was a request seeking a forty-year-old internal CIA history of the 1961 Bay of Pigs invasion. It is hard to imagine a case where the concern for a chilling effect on future deliberations was more attenuated. Do bureaucrats really worry about what will be said about them four decades from now? Would disclosure of a single historian’s study of a unique historic event really chill routine agency deliberations going forward?
The answer, according to the court, was apparently “yes”: “[P]rivileges that are intended to facilitate candid communication, such as the deliberative process privilege, generally do not have an expiration date.”29 Curiously enough, this year, Congress begged to differ. In its latest amendments to FOIA, Congress decided an expiration date was needed. Exemption 5 is now limited to 25 years.30 Congress found that a time limit allowed adequate protection of governmental deliberations while recognizing the “public benefits derived from access to historical records.”31 That response from Congress was typical of much of the remedial FOIA litigation: well-intentioned but exceedingly modest. Nader, like most contemporary requesters, thought the secrecy should end at the time an agency decision was made, not two and half decades later, when the news value is gone and the public interest in a particular topic has waned.
Much the same story can be told about the exemption for law enforcement records.
Over the years, advocacy groups like the ACLU, the National Security Archive, and Nader’s own Public Citizen have filled the void by bringing important public-interest FOIA litigation.49 Though they have had some notable successes, it is hard not to conclude that the courts have failed FOIA and, indeed, have been a bigger disappointment than the agencies themselves. People accept that bureaucracies will be bureaucracies, and their capacity for reform, creativity, and courage is always institutionally constrained. Not so for the courts. Courts could have advanced a revolution of openness by construing FOIA’s reach broadly, bringing its flawed provisions in line with its purpose, reining in unwarranted expansion of the exemptions, and combating the culture of agency delay. They largely chose another course, and fifty years later the public continues to await FOIA’s promise.
David E. McCraw is Vice President and Assistant General Counsel at The New York Times Company. Tali Leinwand and Ian McDougall, First Amendment Fellows at The Times, provided valuable editing and research assistance.
Preferred Citation: David E. McCraw, The “Freedom From Information” Act: A Look Back at Nader, FOIA, and What Went Wrong, 126 Yale L.J. F. 232 (2016), www.yalelawjournal.com/forum/the-freedom-from-information-act-a-look-back.
Nader, supra note 1, at 10, Part II.
5 U.S.C. § 552(a)(6)(A)(i) (2012).
2015 DOJ FOIA Report, supra note 15, at 6.
5 U.S.C. § 552(b)(1) (2012).
5 U.S.C. § 552(b)(9) (2012).
5 U.S.C. § 552(b)(5) (2012).
Nat’l Sec. Archive v. CIA, 752 F.3d 460, 462 (D.C. Cir. 2014).
Nader, supra note 1, at 7.
Shinnecock Indian Nation v. Kempthorne, 652 F. Supp. 2d 345 (E.D.N.Y. 2009).
Id. at 359-60 (internal quotation and citation omitted).
Nat’l Sec. Archive, 752 F.3d at 464.
S. Rep. No. 114-4, at 4 (2015).
2015 DOJ FOIA Report, supra note 15, at 7.
U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989).
Associated Press v. U.S. Dep’t of Justice, 549 F.3d 62 (2d Cir. 2008).
Associated Press v. U.S. Dep’t of Def., 554 F.3d 274 (2d Cir. 2009).
5 U.S.C. § 552(b)(7) (2012).
John Doe Agency v. John Doe Corp., 493 U.S. 146, 154-55 (1989).
Nader, supra note 1, at 13.
Ralph Nader, Freedom from Information: The Act and the Agencies, 5 Harv. C.R.-C.L. L. Rev. 1 (1970).
Ralph Nader, Fighting for FOIA, Facebook (June 14, 2011, 1:15 PM) http://www.facebook.com/notes/the-sound-strike/fighting-for-foia-by-ralph-nader/173837906009101 [http://perma.cc/M5JT-R93R].
Michael Schudson, The Rise of the Right to Know: Politics and the Culture of Transparency 1945-1975, at 28-63 (2015).
See James T. Hamilton, Democracy’s Detectives: The Economics of Investigative Journalism 153-60 (2016).
The FOIA timetable was initially ten business days for a response and twenty days for determination of an appeal. Open Am. v. Watergate Special Prosecution Force, 547 F.2d 605, 609 (D.C. Cir. 1974).
Off. of Info. Pol’y, Summary of Annual FOIA Reports for Fiscal Year 2015, Dep’t of Justice 13 (2015), http://www.justice.gov/oip/reports/fy_2015_annual_foia_report_summary/download [http://perma.cc/ER5Q-Q6QT] [hereinafter 2015 DOJ FOIA Report].
N.Y. Times Co. v. Dep’t of Labor, 340 F. Supp. 2d. 394, 399 (S.D.N.Y. 2004). The court ruled for The Times, and the requested data was produced without further delay after the court’s decision.
Electronic Frontier Foundation, FOIA Reform Passes Congress in Time for 50th Anniversary, Gov’t Secrets, http://www.governmentsecrets.com/foia-reform-passes-congress-time -50th-anniversary [http://perma.cc/6VL8-N2CJ].
Lauren Harper, Exemption 5 Would Not Have Chilling Effect on Agency Deliberations, MDR Fees Should Be Comparable to FOIA Fees, and More: FRINFORMSUM 4/28/2016 (Apr. 28, 2016), http://nsarchive.wordpress.com/2016/04/28/exemption-5-foia-reform-would-not-have -chilling-effect-on-agency-deliberations-mdr-fees-should-be-comparable-to-foia-fees-and -more-frinformsum-4282016/ [http://perma.cc/48XY-FGSW].
The tale then took a particularly pernicious turn. Nader found out that CAB was disclosing the complaints—with names included—to the airlines.
New York Times Co. v. U.S. Dep’t of the Treasury, No. 09 Civ. 10437 (FM), 2010 U.S. Dist. LEXIS 109933 (S.D.N.Y. Oct. 13, 2010).
FOIA initially provided an exemption for “investigatory files compiled for law enforcement purposes except to the extent available by law to a private party other than an agency.” See Nader, supra note 1, at 6. Congress later sought to limit the amount of withholding, and, in its current iteration, Exemption 7 applies to “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, [or] (D) could reasonably be expected to disclose the identity of a confidential source . . . .” 5 U.S.C. § 552(b)(7) (2012).
U.S. Dep’t of Justice, Exemption 7, Guide to the Freedom of Information Act (2014), http://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/exemption7.pdf [http://perma.cc/MWX5-URF8].
See, e.g., ACLU v. CIA, 710 F.3d 422 (D.C. Cir. 2013) (challenging government secrecy about drone strikes); Public Citizen, Inc. v. Office of Mgmt. and Budget, 598 F.3d 865 (D.C. Cir. 2009) (challenging the agency’s withholding of a legal memo that had become the “working law” of the agency); Nat’l Sec. Archive v. U.S. Dep’t. of the Air Force, No. 05-CV-571 (RMC), 2006 U.S. Dist. LEXIS 21037 (D.D.C. Apr. 19, 2006) (challenging a “pattern and practice” of agency delay).


Small businesses may find that their federal payroll tax filing form changes from year to year from Form 941 (filed quarterly) to Form 944 (filed annually). While the Form 944 was meant to be a simplifying concession to small businesses, often business owners may not understand the notice they receive regarding which form should be filed or, just as possible, the notice may end up being lost in the mail.
So that begs the question—what impact does filing the wrong form have on the statute of limitations for the IRS to assess taxes? IRS Field Service Advice 20152101F provides some answers to that question.
Employers that are eligible to file Form 944 are notified by the IRS of that fact. Employers are not to file Form 944 until they are notified of their eligibility by the IRS. Similarly employers who are notified they are eligible to begin filing Form 944 must begin doing so for the following year.
To “opt out” and file Forms 944 in lieu of Form 941 an employer must follow the procedures outlined in Revenue Procedure 2009-51. [Reg. §31.6011(a)-1(a)(5)(ii)] Similarly, an employer that previously has been required to file Form 941 but will qualify for Form 944 in the current year may request to switch to Form 944.
Until such a proper request is made and accepted by the IRS the employer must continue to file the Forms 941. Generally a timely election out must be made by March 15 of the year in question unless it is the employer’s first tax year in which case the request must be submitted on or before the first day of the first require Form 941 for the year in question.
· Where one type of federal tax return is required from the employer, but another type is filed, is the filed return valid?
· Where one type of federal tax return is required from the employer, but another type is filed, on what date does the period of limitations on assessment under I.R.C. § 6501 begin to run?
To determine whether a return is valid for assessment period of limitations purposes, courts generally look to see whether the purported return meets four requirements: the document (1) provides sufficient data to calculate tax liability; (2) purports to be a return; (3) is an honest and reasonable attempt to satisfy the requirements of the tax law; and (4) is executed under penalty of perjury. See Beard v. Commissioner, 82 T.C. 766, 777 (1984), aff'd per curiam, 793 F.2d 139 (6th Cir. 1986). The Beard formulation is generally known as the "substantial compliance" standard. If a return meets the "substantial compliance" standard, the return is a valid return for purposes of the period of limitations on assessment. Even if a taxpayer files its return on an incorrect form, the return can nevertheless start the running of the three-year period for the Service to make an assessment as long as the return meets these four requirements. See, e.g., Germantown Trust Co. v. Commissioner, 309 U.S. 304, 310 (1940) (determining that the use of an incorrect form triggered the assessment period of limitations). "Of crucial importance is whether the return, as filed, included sufficient information to allow the [Service] to compute the taxpayer's liability." Atlantic Land & Improvement Co. v. United States, 790 F.2d 853, 858 (11th Cir. 1986).
To address the question of whether “substantial compliance” has been achieved, the memorandum provides three different scenarios and the consequences of each.
In the first fact pattern the taxpayer is required to file a Form 944 (Employer’s Annual Federal Tax Return) but instead files four quarterly Forms 941s (Employer’s Quarterly Federal Tax Return) for the year in question.
Assuming the Forms 941 purport to be returns, are an honest and reasonable attempt to satisfy the filing requirements, are signed under penalty of perjury, and can be used to determine A's annual FICA and ITW tax liability, the Forms 941 meet the Beard formulation and should be treated as valid returns for purposes of starting the period of limitations on assessment. Because the Forms 941 were filed before April 15 of the succeeding year, the deemed filing date under I.R.C. § 6501(b)(2) is April 15 of the succeeding calendar year.
In the second situation the taxpayer again was supposed to file Form 944, but this time files Form 941 only for the first and second quarter of the year. The taxpayer files no report with relation to payments made for the third and fourth quarter. So where does the taxpayer, who now has reported only half of what would have been on the proper form, stand in terms of the statute?
The three asterisks indicate that a portion of the answer has been removed by the IRS when the FSA was released. Clearly what is missing is the time frame for assessing the amounts not shown on the Forms 941 (that is the third and fourth quarters).
There are factual circumstances, however, in which the filing of two Forms 941 could meet the necessary criteria for an annual employment tax return (e.g., if the employer's business is seasonal).
Taken as a whole, it seems that the IRS feels that the answer to whether there is a fully open statute of limitations on the amounts that would have been reported in quarters 3 and 4, or whether the IRS would be deemed to be “on notice” is a “facts and circumstances” situation.
Obviously the adviser should assume that the statute would be open if a clients presents with this fact pattern, but if the client shows up with the IRS already on the scene the adviser should consider possible arguments regarding why the statute might close three years after April 15 of the year following the filing of the Forms 941 for taxes for the entire year.
The third example is when the employer files the Form 944 for a year in which filng the Form 941 was required.
Assuming the Form 944 purports to be a return, is an honest and reasonable attempt to satisfy the filing requirements, can be used to determine C's annual FICA and ITW tax liability, and is signed under penalty of perjury, C's Form 944 meets the Beard formulation and should be treated as a valid return for purposes of the period of limitations on assessment. Because the Form 944 was timely filed, the deemed filing date is April 15 of the succeeding calendar year.


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City of Basehor v. J.S.: Client stopped for failing to maintain a single lane (weaving), took field sobriety tests and blew .209 at the station. Case dismissed on the date of trial.
State of Kansas v. M.A.: Client found “not guilty” by a jury of a felony DUI in Johnson County District Court.
State of Kansas v. J.V: Client involved in an accident and taken to the hospital. His blood was drawn and tested by the KBI to be .120. He was found “not guilty” of DUI in Leavenworth County District Court.
State of Kansas v. R.R.: Client charged with a felony DUI in Johnson County District Court after being involved in an accident. His blood was tested by the K.B.I. to be .08. DUI dismissed after filing of motions and prior to trial.
State of Kansas v. G.H.: Client stopped for traffic infractions and given field sobriety tests. He was arrested and consented to a breath test but blew a “deficient sample”. The felony DUI was dismissed in Johnson County District Court after filing of motions and prior to trial.
State of Kansas v. L.M.: Client involved in an accident on I-35 and taken to the Johnson County Jail where she consented to a breath test. She blew a .156 deficient sample. Case dismissed in the Johnson County District Court after filing of motions and prior to trial.
City of Kansas City, Kansas v. J.L.: Client involved in a roll-over accident and taken to the hospital. His blood was taken and tested to be .19. DUI dismissed at trial.
City of Mission v. W.G.: Client stopped in a Mission, Kansas checklane and given field sobriety tests. DUI dismissed prior to trial.
City of Mission v. J.B.: Client stopped for speeding on I-35 by the Mission Police. DUI dismissed prior to trial.
City of Overland Park v. S.L.: Client stopped for traffic infractions in Overland Park. Took field sobriety tests and allegedly failed. Client found “not guilty” of DUI after trial in Overland Park Municipal Court.
State of Kansas v. C.S.: Client found “not guilty” of DUI in Johnson County District Court.
State of Kansas v. S.K.: Client stopped for Exhibition of Acceleration and traffic infractions and given field sobriety tests. He was taken to the Douglas County Jail and submitted a breath sample of .091. The felony DUI was dismissed in Douglas County District Court after motions and prior to trial.
City of Louisburg v. G.S.: Client stopped for traffic infractions in Louisburg, Kansas. DUI dismissed prior to trial.
State of Kansas v. C.T.: DUI dismissed in Linn County District Court right before trial.
City of Prairie Village v. D.W.: Client stopped for traffic infractions in Prairie Village, Kansas, given field tests and taken to the police department where she blew a .205 deficient sample and a .198 deficient sample. Prairie Village DUI dismissed before trial.
City of Lawrence v. L.S.: Client arrested after an accident in Lawrence, Kansas and charged with DUI. The DUI was not filed after litigation of other charge.
City of Mission v. C.S.: Client arrested after being stopped in a DUI checklane in Mission, Kansas. DUI was dismissed prior to trial.
State of Kansas v. K.B.: Client stopped for speeding and was arrested after field sobriety tests. DUI dismissed in Wyandotte County District Court for speedy trial violation.
City of Mission v. C.R.: Client stopped for traffic infractions in Mission, KS and charged with DUI after testing. She blew a .18 at the police station. DUI dismissed prior to trial.
State of Kansas v. J.C.: Client stopped for not using a turn signal and given field sobriety tests. She was taken to the Olathe Police Department where she blew .150. DUI dismissed in Johnson County District Court after litigation of motions.
City of Overland Park v. M.O.: Client charged with DUI in Overland Park Municipal Court after being stopped for speeding and running a red light. He failed field sobriety tests and blew .191 at the Overland Park Police Department. The case was appealed to Johnson County District Court where he was found “not guilty” of DUI and running the red light after a jury trial.
City of Leawood v. J.G.: Client involved in an accident with a semi on I-435 and failed field tests. He was charged with a DUI in Leawood Municipal Court after taking a breath test. DUI dismissed prior to trial.
State of Kansas v. C.W.: Client charged with DUI after arrest in Gardner, Kansas, and blowing a .122 at the Johnson County Jail. DUI dismissed in the middle of trial.
City of Merriam v. P.R.: Client was involved in a car accident in a parking lot. He failed field sobriety tests and was taken to the Merriam, Kansas police department and charged with DUI. DUI was dismissed prior to trial.
State of Kansas v. S.M.: Client found “not guilty” of DUI in Johnson County District Court.
City of Overland Park v. S.H.: Client stopped for speeding and not using a turn signal. After field tests he was arrested and charged with DUI in Overland Park Municipal Court. He was found “not guilty” of DUI after trial.
City of Gardner v. B.D.: Client found “not guilty” of DUI after trial in Gardner, Kansas Municipal Court.

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