Unequal FOIA Responses: A Transparency Crisis
How discretionary access replaces uniform compliance without formal policy or accountability.
Estimated reading time: 5 minutes
Two Requesters, One Law
The imbalance in FOIA enforcement is not theoretical. It plays out in real time across agencies and across requesters.
Covenant for Forgotten Warriors is a nonprofit organization focused on veteran advocacy and assistance to Americans stranded overseas. It has filed multiple FOIA requests with the Department of State, Department of Defense, Department of Veterans Affairs, and the U.S. Army concerning an American veteran stranded in a foreign country for an extended period.
These requests seek records related to government awareness of the situation, assistance efforts provided or withheld, and interagency coordination in a humanitarian and veteran-welfare context.
Many of those requests have been delayed indefinitely. Some have received no substantive response. Others have been closed without explanation. The pattern is consistent: silence, delay, or procedural dismissal.
True Signal Media is an investigative journalism outlet. It has filed FOIA requests with the same agencies—Department of State, Department of Defense, Department of Veterans Affairs, and the U.S. Army—on a wide range of topics unrelated to the veteran’s case.
Those requests are routinely acknowledged. They are assigned for processing. They receive status updates and assurances that the agency is working on them.
The distinction is not the law. The distinction is the requester.
The Same Agencies, Different Responses
Both organizations file compliant requests. Both follow FOIA procedures. Both submit through the correct channels and meet procedural requirements.
Both are entitled to the same statutory treatment.
The treatment is not the same.
Covenant for Forgotten Warriors requests about a stranded American veteran receive minimal engagement. True Signal Media requests on unrelated topics receive timely acknowledgment and procedural courtesy.
The statute does not authorize this disparity. The statute requires equal treatment.
Why This Matters
FOIA was designed to eliminate favoritism in access to government records. The law applies uniformly. It does not distinguish between requesters based on their identity, purpose, or the subject matter of their inquiry.
The principle is clear: transparency is not selective.
In practice, transparency becomes selective when agencies exercise discretion unevenly. Requesters with institutional backing, media visibility, or perceived importance receive faster responses. Requesters without those advantages wait longer—or receive no response at all.
This is not a formal policy. It is an operational pattern.
The Universal Threat
The disparity in treatment is not limited to veterans’ cases or advocacy organizations. It is a structural feature of how FOIA operates when enforcement is reactive and discretion is broad.
Anyone can become the requester who waits. Anyone can become the requester whose correspondence is routed to spam. Anyone can become the requester whose case is closed without explanation.
Journalists investigating uncomfortable topics. Military personnel seeking accountability. Advocates asking questions about government failures. Individuals pursuing records about their own cases.
The common thread is not the law. It is proximity to information that agencies would prefer not to disclose.
FOIA provides no automatic protection against selective delay. The statute treats all requesters equally. Agencies do not.
The Erosion of Statutory Equality
When agencies respond quickly to one requester and ignore another, they undermine the foundational principle of FOIA: that access is a right, not a privilege.
The requester who waits has no recourse except to appeal. The appeal goes to the agency. The agency reviews its own decision. The process takes months.
If the requester lacks the resources to continue escalating, the matter ends. The agency’s discretion prevails.
FOIA does not fail because the law is unclear. It fails because the burden of enforcement is placed entirely on the requester.
The Quiet Calculation
Agencies possess substantial institutional knowledge about how FOIA works. They know that most requesters will not appeal. They know that fewer still will litigate. They know that delay is rarely penalized.
This creates a rational incentive structure: prioritize requests that carry reputational risk or media scrutiny. Delay requests that do not.
The calculation is not always explicit. It does not require malice. It only requires awareness that enforcement depends on the requester’s willingness to push back.
Some requesters have that capacity. Others do not.
Summary
FOIA’s promise of equal access depends on equal enforcement. When agencies apply the statute selectively—responding promptly to some requesters while delaying or ignoring others—transparency becomes discretionary.
The law does not authorize this. The law does not prevent it either.
The result is a two-tier system: FOIA works for requesters with leverage. For those without it, transparency is delayed, denied, or abandoned entirely.