The Freedom of Information Act (FOIA) can be a reporter’s best friend.
But consider this: The Environmental Protection Agency receives about 22,000
FOIA requests annually. One percent come from the media. Or this:
In 1998 the Drug Enforcement Administration received more FOIA requests
from prisoners than from reporters. Or this: The National Security Agency
has received more requests for information about UFOs than for any topic
from reporters. Or, symptomatically, this: The apparent 1998 champion for
aggressively filing FOIA requests across multiple federal agencies was
not a dogged investigative reporter but a political operative seeking dirt
on an opponent.
Certainly, a few reporters do use the Freedom of Information Act---sometimes with spectacular results. Reporter Russell Carollo of the Dayton Daily News filed more than 100 FOIA requests for the 1998 Pulitzer Prize-winning series on military medicine he co-authored with Jeff Nesmith. But most reporters never use the law at all. Many
FOIA-centered stories in newspapers come, not from reporters’ initiative, but from special interests who use the law to dig up information that they then feed to reporters. Moreover, although the whole point of FOIA is to dig up the lid on executive branch operations, the few reporters who do use FOIA often couldn’t care less about the executive agency they’re demanding information from; they want copies of letters sent from members of Congress to various agencies and aren’t really probing bureaucracies so much as seeking evidence of congressional muscle. In one small but illustrative example, the Labor Department’s Bureau of Labor Statistics received six FOIA requests from the media in 1998. Three of these sought copies of congressional correspondence. Similarly, Transportation Department headquarters received 22 FOIA requests from reporters in 1998; 13 of these, more than half, sought congressional letters. This FOIA-enabled search for congressional letters, however meritorious, reflects the general tendency among Washington-based reporters to concentrate on Congress and ignore the administrative agencies. More broadly, it highlights just how cramped journalistic FOIA use has become.
Few and Far Between
The law is pretty easy to understand and generally easy to use. In short, the Freedom of Information Act, passed in 1966, establishes a presumption that records in the possession of agencies and departments of the executive branch of the government should be accessible to the people. And usually, to get these records, you don’t even need a stamp. Requests for documents from executive agencies---Congress, predictably, excluded itself from the law’s reach---can now often be faxed to designated FOIA offices. Professional organizations like the Investigative Reporters and Editors run FOIA workshops, and the Reporters Committee for Freedom of the Press’s useful Internet site includes an automatic FOIA letter-generator that makes filing a snap (http://www.rcfp.org ). Recalcitrant agencies can also be prodded by lawsuits. Yes, it can sometimes be a hassle; and, yes, the wait can sometimes be interminable. But the rewards can be abundant; moreover, frequent use of FOIA helps keep bureaucracies on their toes, and helps fend off those who contend the law has lost its Fourth Estate rationale.
“My sense is, it’s not being used nearly as much as I think it should be,” said Alan Miller, an investigative reporter in the Washington bureau of the Los Angeles Times. “I think reporters become discouraged, understandably, by the amount of time it takes Š it’s unfortunate, and it’s a missed opportunity.”
We know this is so, in part, thanks to the law itself. Using the Freedom of Information Act, I obtained the so-called FOIA logs from about two dozen federal agencies. These are the records of requests made during 1998. The logs themselves are a hodgepodge that highlight how different agencies handle FOIA. The Interior Department and Agriculture Department headquarters logs, for instance, were handscrawled, while the Department of Health and Human Services (HHS) headquarters maintained its requests in a handy record-management software package. The federal government may spend roughly $168 million a year coping with 100 million-plus FOIA requests, but a consistent government-wide system has yet to be developed.
Most important, these logs reveal, in varying detail, who’s asking for what. They show, for instance, how Alan Miller cast a wide net across various agencies in 1998 with requests for letters from congressional leaders including Senate Majority Leader Trent Lott and Senate Minority Leader Tom Daschle. The logs also show that former Sen. Carol Moseley-Braun (now the Clinton administration’s ambassador to New Zealand), Indiana Republican Rep. Dan Burton, and Sen. Mitch McConnell were favorite targets for reporters.
The FOIA logs also reveal, tellingly, that the champion information-seeker wasn’t a reporter at all---although her work, properly laundered, might have fed a story or two. With regard to sheer quantity, an opposition researcher from the San Francisco Bay Area named Cara Brown led the pack. Working quietly for the primary campaign of Democrat Al Checchi, Brown filed myriad requests for information on Republican gubernatorial candidate and former southern California congressman Dan Lungren. From the Legal Services Corp., for instance, Brown requested all “letters, memos, telephone log entries, message receipts, notations of conversations, meeting notes, e-mail messages, fax cover sheets, reports, statistics, [and] calendar entries” dealing with Lungren. Nor did Brown limit herself to Lungren’s time in public service: Brown wanted Lungren-related files going back to the time he was 18 years old.
“The basic role of the opposition researcher and FOIA is to come up with information that is prejudicial to the object of the search,” said Garry South, the senior political adviser to California Gov. Gray Davis. “It can be almost anything, and in a lot of cases, it’s a fishing expedition.”
South, who identified Brown as one of Checchi’s workers, naturally had his own researchers using the same tool. Obnoxious as it may sound, reporters could learn something from these political operatives. Ideally, of course, reporters won’t presume that the only worthwhile information will be prejudicial to the target; indeed, FOIA is great at revealing the fascinating nuances of government in action.
Opposition researchers aside, the FOIA logs cumulatively reveal the relative infrequency of media requests. The Drug Enforcement Administration, for instance, received roughly 2,000 FOIA requests in 1998, only 57 of which came from the media. Federal prisoners were far more prolific. Similarly, the Public Health Service received about 520 FOIA requests in 1998. Only 25 came from journalists.
Even worse, take the HHS headquarters. Of the 1,100 FOIA requests it received between Oct. 1, 1997 and Sept. 30, 1998 only about nine percent came from reporters and most of the reporter requests were filed by a handful of journalists or media organizations. Nearly one-fifth of all the media requests to HHS headquarters came from just two trade publications, and, of the requests filed by newspapers, one-third came from the Los Angeles Times, Chicago Tribune or Dayton Daily News. Television reporters filed a grand total of five FOIA requests to the HHS headquarters.
Use It Or Lose It
This all seems a special shame. Journalists, after all, were not just cheerleaders during the long campaign by the late California congressman John Moss to pass the Freedom of Information Act. They were, emphatically, present at the law’s creation. “Moss’ greatest allies were the press associations,” recalled Washington attorney Michael R. Lemov, a former Moss staffer. “Without the press, he never would have gotten that bill.”
Moss, who died in December 1997, was a good-government champion with a stubborn streak. He started his FOIA fight in 1955, calling reporters as the first witnesses before his newly formed subcommittee on government information. The beginning stages were certainly bleak. A survey by the journalism society Sigma Delta Chi found that of 3,105 congressional hearings in 1953, 1,357 were closed to the press. Executive branch deliberations were equally closed. Though the Administrative Procedure Act provided for release of government information, exceptions limited release to those persons deemed “properly and directly concerned,” and allowed denial of requests simply for “good cause.” Neither Republican nor Democratic presidents were sympathetic to Moss’ crusade. At one point, representatives of 27 federal agencies testified in opposition to Moss’ bill. A blunt and sometimes impolitic man, Moss stuck to his guns for 11 years, and in 1966 Congress finally sent the legislation on for LBJ’s reluctant signature.
The Freedom of Information Act, which has been further modified several
times since, tightened the exceptions under which information could be
kept secret. It allowed, for the first time, people to take agencies to
court to compel release of information, and it dropped the requirement
that information-seekers be “properly and directly concerned” with the
matter at hand. Federal officials would no longer be in the business of
judging the appropriateness of a requester’s motives. At the same time,
lawmakers made clear their expectations about who would be primary users
of the new law.
The House Republican Policy Committee in May, 1966 cited the media
first in a recitation of FOIA’s potential users. The law, GOP members said,
would aid “reporters as representatives of the public, citizens in pursuit
of information vital to their interests, and members of Congress as they
seek to carry out their constitutional functions.” Things haven’t of course
worked out as planned, though.
“Since 1975, the press and research and scientific journal authors and others have largely abandoned the use of the FOIA,” William Taft, then-general counsel for the Department of Defense, told a Senate committee back in 1981. “They are encouraged to elicit information through informal channels, and have found those channels to be satisfactory without resorting to use of the formal request.”
In reality, the Reagan administration only cared about reporters abandoning FOIA because that could be justification for limiting the law’s reach. If prisoners use FOIA and reporters don’t, the argument went, then maybe it was time to roll back the law. This was one unintended and potentially dangerous political consequence of reporters not using FOIA. Carollo attributed the disuse in part to “a failure of the journalism schools” to properly train young reporters in the FOIA arts.
Tied Up With Red Tape
Part of the reason that journalists so rarely use FOIA is that agencies can take so long in responding that the information often seems stale by the time it arrives.
In the worst agencies, there’s deliberate footdragging; and, for good and bad alike, there’s a never-ending batch of requests to cope with. The various agencies of the Department of Veterans Affairs, for instance, receive a mind-boggling 210,000 FOIA requests every year---that’s more than 800 every workday. The resulting long delays, and the periodic necessity to haul recalcitrant bureaucracies into court, deter some reporters from using the law at all. For every Cleveland Plain Dealer, which used a helpful congressman and the threat of legal action last year to pry open embarrassing records from the stonewalling Department of Housing and Urban Development, there are any number of papers or TV stations that figure the story isn’t worth the hassle. Commendably aggressive, The Washington Post in April 1995 took the Agriculture Department to court to compel release of certain crop subsidy information. By the time a judge ordered the Agriculture Department to cough up the information, in October 1996, the Post’s reporter on the beat had gone off to other tasks. The State Department, in particular, is a notorious black hole; it is the only federal agency whose backlog of unprocessed FOIA requests is larger than the number of requests it receives each year. It claims a median FOIA response time of 444 days; actual delays can extend for several presidential administrations.
“Often, agency staff use the ordinary delays to deter requesters or to persuade them into narrowing the scope of the reporter’s request,” says Michael Ravnitzky of APBnet, the online crime-and-justice news service, and one of the most prolific filers. “Depending upon the agency, a FOIA request can take anywhere from a few days to as much as eight or nine years, or even more.”
The lawmakers who wrote FOIA knew delay and resistance would be standard bureaucratic responses to information-seekers. That’s why they included the provision permitting lawsuits. In other ways, though, FOIA’s authors couldn’t foresee the law’s future use. They certainly didn’t anticipate some persistently hot topics. The National Security Agency, for instance, received about 830 FOIA requests in 1998; 15 percent of these, the biggest single share, dealt with Unidentified Flying Objects. The second biggest topic for FOIA requests to the nation’s secretive code-breaking agency dealt with contract information. Except for the business about UFOs, the National Security Agency is pretty typical. Commercial entities, government-wide, have long since become the greatest user of FOIA. Businesses are filing requests daily to find out who holds government credit cards, who won certain contracts, what competitors are up to, and how decisions are being made. Of all requests to the EPA, 89 percent came from attorneys, environmental consultants or private industry.
This is certainly consistent with the law’s intent of opening up government; but, at least judging by the legislative debate, this was not explicitly anticipated by FOIA’s authors. That’s the nature of groundbreaking legislation, though: The real world always surprises, and you never know what might turn up. The same is true, after a fashion, with a Freedom of Information Act request itself. Reporters who use the law regularly know that the more requests they file, the more likely they are to scare up a story that matters. After all, it’s hard to catch fish if you don’t go fishing.
Used with permission of.Michael Doyle, a reporter in the Washington
bureau of McClatchy Newspapers