Barthes on FOIA

I recently revisited “The Death of the Author,” an essay about narrative voice by the poststructuralist critic Roland Barthes. In it, Barthes rejects the phenomenon often labeled “authorial intent,” essentially concluding that a text speaks for itself, and that its author, without prior history or consciousness, only comes into being upon transcribing the text. Much of this theory – like much of semiotics – is a thought experiment, designed to distance the reader from the text and create a tension between the authenticity of a narrative and the limits of textual interpretation. But part of the theory, it occurred to me, might be instructional in the legal context. Perhaps “The Death of the Author” describes a process that is analogous to – or even an instantiation of – a legal canon of construction.

The EPIC Open Government Project has been wrestling with a particular issue of statutory interpretation for the last few months. The Freedom of Information Act describes the timeline by which the requester must receive the requested records. The first, located at 5 U.S.C. §552(a)(6)(A)(i), provides that an agency, upon receipt of a FOIA request, shall “determine within 20 days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of any such request whether to comply with such request and shall immediately notify the person making such request of such determination and the reasons therefor.” The second, located at 5 U.S.C. §552(a)(6)(E), provides that an agency shall provide “for expedited processing of requests for records (I) in cases in which the person requesting the records demonstrates a compelling need; and (II) in other cases determined by the agency.”

These provisions, to our mind, were to be read along the same timeline. Upon receiving a request, an agency has 20 days in which to make a determination and respond to the requester. An agency must also provide for requests that are particularly deserving of immediate attention and create a system for expediting those requests. Where an ordinary request would result in a determination after 20 days, an expedited request would result in a determination more quickly than that. Twenty days is the outer boundary of the timeline, and some requests are treated with more urgency within that timeline.

To our bafflement, we started to encounter agencies in the course of litigation that denied that these provisions related to each other. According to their reading, § 552(a)(6)(A)(i) circumscribed an absolute timeline: 20 days in which to issue a determination. Section 552(a)(6)(E), however, described a relative timeline: an expedited request was moved to the front of the queue of FOIA requests. Once an agency had granted expedited treatment, the logic went, the request was governed by § 552(a)(6)(E), and not by § 552(a)(6)(A)(i). As long as the agency had truly moved the request to the head of the line, the agency was satisfying its legal obligation under the FOIA.

We are still struggling to understand this interpretation of the statute. How could a grant of expedited processing permit an agency to exceed the 20-day timeline prescribed for non-expedited requests? Under that theory, an agency could evade an absolute timeline altogether by granting every request for expedited processing. Surely that would eviscerate the significance of having a provision for “expedited” treatment. Congress could not have meant for the most urgent requests to become unmoored from any timeframe.

But what does “Congress” mean? If we wanted to determine Congress’ intent in drafting these two provisions, whom could we ask? Does one member of Congress have the authority to speak to “Congress'” intent in drafting the FOIA? Two members? A quorum of those who contributed to the original Freedom of Information Act debates on the floor and those who participated in any of the FOIA’s many amendments?

Or does, in reading a law like the FOIA, “Congress” become a separate, discrete entity? Perhaps “Congress” is something like Barthes’ conception of  “the Author”: a narrative force generated solely by – and wholly contingent on – the text it produces. Perhaps there is no “Congress” with respect to the FOIA outside of the text of the FOIA. But if this is the case, how is either party to determine what “Congress” intended?

It occurred to me that the voice of Congressional intent might be the Court. It is, after all, “emphatically the province of the court to say what the law is.” The D.C. Circuit Court of Appeals recently ruled on the significance of the word “determination” in the context of the FOIA. The requester understood “determination” to mean that the agency was required, in 20 days, to complete processing of the entire request. The agency understood “determination” to mean an acknowledgement, or a communication to the requester that the processing was underway. The Court ruled that a “determination” meant something in between: a preliminary assessment of the number of documents located, any exemptions that the agency planned to assert, and an approximate timeline for document production. This ruling ends the obscurity of that word in the text. The Court has provided a definitive exegesis, and the problem of the FOIA-Congress’ intent is now a moot point.

But this illustration signals the collapse of the “The Death of the Author” metaphor with respect to the American legal system. For Barthes, an author cannot be generated from a text alone; there must also be a reader who, in engaging with the text, creates the “Author.” He writes, “The reader is the space on which all the quotations that make up a writing are inscribed without any of them being lost; a text’s unity lies not in its origin but in its destination.” Whether or not this proposition is true of law generally (Holmes and Dworkin would likely have some choice words on the subject), it cannot be true of statutory interpretation. Were the proposition true, EPIC’s understanding of Congress’ intended FOIA timeline would be as valid an authentic, self-generated truth as the government’s understanding would be. There would be two “Authors” – two “Congresses” – and the Court would generate a third. Instead, the Court has ruled on the text; we know now, legally, what the text says.

I’m still persuaded by the idea that “Congress” must be understood as something other than the Representatives and Senators who sponsor the bills that become the text of our laws. But in the universe of statutory interpretation, it cannot be true that the “Author” is dead. On the contrary, in a legal dispute like the FOIA dispute between EPIC and the government, the entire source of the conflict is the disconnect between reader and author. Whether law exists in the absolute or whether it only comes into being when enacted by the people it governs, the practice of law is contingent on both its origin and its destination – its author and its reader. Barthes writes, “Once the Author is removed, the claim to decipher a text becomes quite futile. To give a text an Author is to impose a limit on that text, to furnish it with a final signified, to close the writing. Such a conception suits criticism very well, the latter then allotting itself the important task of discovering the Author (or its hypostases: society, history, psyche, liberty) beneath the work: when the Author has been found, the text is ‘explained’-victory to the critic.”

And that derisive parenthetical describes the substance of statutory interpretation, and effectively ends the analogy.

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