It's Time to Bring FOIA to the Judiciary to Usher in a New Era of Transparency
Today, Representative Schiff of California introduced a bill to expand the Freedom of Information Act (FOIA) to the federal judiciary.
This commonsense, nonpartisan bill would make it possible for journalists and the public to request records from the Judicial Branch using the same process that's long been available for the Executive Branch.
If passed, this bill would usher in a new era of transparency at the judiciary — a development we hope judges and court staff will welcome and embrace given their critical and growing role in American law and society.
At Free Law Project, we have been working on this issue for many years:
- In 2021, we presented to the FOIA Advisory Committee to the U.S. Archivist on this issue.
- In 2022, we completed a study of this issue with the valuable assistance and counsel of the student attorneys at Berkeley Law's Samuelson Clinic.
- In 2023, we formally requested a number of items from the judiciary, the denial of which proved the need for today's bill.
The result of these efforts is a well-crafted, lean, and careful bill that brings much-needed transparency without overstepping.
The Details
The goal of the bill is to gain transparency within the administrative apparatus of the judicial branch while keeping things simple.
If passed, the Judicial FOIA Expansion Act would:
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Extend the Freedom of Information Act to the judicial branch, allowing for record requests of the branch’s administrative apparatus;
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Provide important exceptions to the extension of FOIA access to any matter related to an ongoing case and any information not in the possession of the Judiciary;
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Extend the Privacy Act to the judicial branch to maintain privacy protections with regard to any record requests; and
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Maintain other existing exceptions under current FOIA law including for records maintained on specific individuals, classified information, or trade secrets.
And to answer the question we know we'll hear the most, no, this doesn't open up PACER or otherwise affect it, since materials from ongoing cases are explicitly excluded.
What's Next?
We're thrilled to have Representative Schiff as a champion of this important issue. We hope other members of Congress will join this bill and help to get it passed.
