It’s not wrong to believe that if Congress or a state legislature passes a law, it somehow makes that law magically happen. It’s terribly naïve, but not wrong. It’s not just the “take care” clause, that the executive branch doesn’t like the law, so it refuses to put any effort into making it happen. It’s not even that mandates usually require money, a bureaucracy, behind them, and Congress hates putting money where its mouth is.

So great ideas (along with the horrible) find their way into laws that the public thinks will change everything, and ultimately become just another morass of broken promises, good ideas that don’t pan out.  When collateral issues arise, someone will point out, “wait, there’s a law for that,” and ponder why that’s not a good enough answer.

Have you met the FOIA, the Freedom of Information Act?  It may be one of the most promising laws ever enacted that failed so astoundingly to fulfill its promise. At PrawfsBlawg, Margaret Kwoka explains why.

What purpose was it designed to serve? Mostly journalists’ interest in reporting the news to the public. In fact, it may even be fair to say that the news media essentially drafted the law. In 1953, Harold Cross wrote a book called “The People’s Right to Know” in his capacity as an advisor to the American Society of Newspaper Editors, the most prominent journalism association at the time. After documenting the patchwork of existing access laws, most of which fell woefully short of journalists’ needs, Cross called on Congress to legislate a right to access public records. Because the book garnered interest in Congress, Cross himself subsequently become the legal adviser to the special subcommittee in the House of Representatives tasked with drafting the law, and journalists mostly staffed the committee. That is, journalists were crafting the very contours of the law, not just its vision.

Good intentions. What could possibly go wrong?

The reality today, though, is that news media make up a tiny fraction of requesters – in the single digit percentages at most agencies. Journalists find the law slow in operation and the fight for access to be resource intensive. They simply don’t have the time or legal budgets to take full advantage. Nonetheless, despite the loud complaints about FOIA’s failings, the federal government now receives over 700,000 FOIA requests a year, so FOIA must be serving someone’s interests at least well enough to keep them coming back for more.

Make a FOIA request, wait your ten days, and get . . . nothing. Complain and get . . . nothing. Maybe you get a response years later. And when you do, maybe it’s responsive, or maybe it’s ten pages, fully redacted, out of 473, the rest of which is refused.  Or maybe you get . . . nothing.

Somebody in the government is supposed to respond to a FOIA request. That somebody has a job to do, and it’s not responding to your FOIA request. Maybe you get notification that they would be thrilled to respond, if only you would send them $71,493.27 to cover the cost of your ten pages.  And they will still get back to you when they’re good and ready, if at all.

What you gonna do about it?

At the same time, there is a group with the time, energy, dedicated staff and willingness to spend some money, getting a response to their FOIA requests.

There’s gold in government documents, and these are the documents that the government doesn’t care enough to keep private, mostly because what they reveal isn’t any of the government’s deep, dark secrets, but ours.

It’s not that Congress is unaware of the fact that FOIA is a joke, and has failed miserably to fulfill its purpose. And it’s not that they aren’t working on a fix.

The House on Monday passed legislation that would create the most sweeping reforms to federal open records laws in nearly a decade.

Approved by voice vote, the measure would limit exemptions under the Freedom of Information Act (FOIA) that now allow federal agencies to hold back information.

The new bill, the FOIA Oversight and Implementation Act, H.R. 653, represents the most significant push to overhaul the FOIA system since 2007.

Among other things, it would reform how agencies can redact some information using Exemption 5, which is often derisively referred to as the “withhold because you can” statute. In practice, it is supposed to apply to “interagency or intra-agency communication,” such as draft documents.

And there are plenty of other provisions addressing the pervasive failings of FOIA as it currently exists.  Of course, the inspirational pronouncements coming out of Congress tend to be rosier than reality would support.

“The expected vote in the House is a testament to the strong, bipartisan support in Congress for strengthening FOIA and improving Americans’ access to government information,” said Sen. Chuck Grassley (R-Iowa), the chairman of the Senate Judiciary Committee, prior to the House vote.

But the reform doesn’t go as far as opening up black holes where the really bad stuff happens.

One advocacy group that has been leading the charge on FOIA reforms, however, criticized what it said were last-minute additions to the House bill, saying they would exempt the intelligence community from certain provisions of the FOIA amendments, including the consultation process.

“Exempting the Intelligence Community agencies, which most need the reforms, from the consultation process weakens the reform intended by the committee,” OpenTheGovernment.org said in a release.

And when all of this is hashed out, assuming it’s hashed out, and passed, assuming it’s passed, it will provide some sort of quasi-right to access government information, documentation upon demand.  In theory. If they feel like responding. When they get around to it. Maybe.

President Obama and Attorney General Holder have directed agencies to apply a presumption of openness in responding to FOIA requests. Attorney General Holder* emphasized that the President has called on agencies to work in a spirit of cooperation with FOIA requesters.

Feel like sending the government that big check for its time responding to you?  Feel like waiting a few years for information you want now?  Feel like going to court to obtain an order compelling the government to respond? That will take a few years and tens of thousands of dollars more.

Is FOIA a total failure, as far as its original purposes go? Not quite. People do get responses on occasion. But the only boon has been for the commercial use of government records, like those websites that let you find out who the sex offenders are in your neighborhood, and you look, hoping you won’t see your face there. Or for employers to ascertain whether a new hire has a rap sheet, and you pray NCIS has been properly updated, knowing all too well that bad information goes in but never comes out when a case is dropped, dismissed or acquitted.

The platitude, “be careful what you ask for because you might just get it,” seems to apply too well to government reforms. So too does the platitude, “the road to hell is paved with good intentions.” Could FOIA work wonderfully if the government really wanted it to? You bet.

So if we craft more laws, more reforms, more fixes, will that change the government’s desire to put in the effort to find and disclose its dirty laundry?  And what do you plan to do when the ten days are up and your mail box is still empty? On the bright side, the money sent in by commercial requesters goes a long way toward funding the good work done by government that saves us from having to pay taxes.

*As of this date, the FOIA website still lists Eric Holder as Attorney General, even though he has been replaced by Loretta Lynch. When Holder’s resignation was announced, the Office of Information Policy made a FOIA request for the identity of the new Attorney General, so they could correct their FAQs. They are still awaiting a response.