This post first appeared at Sunshine Week.
Washington – Newspapers were once the dominant force in dislodging documents and other records from reluctant federal government agencies, but a new crop of media players, advocacy groups and corporate interests now drive the release of information.
The Freedom of Information Act of 1966 was first envisioned as a tool for traditional media to seek documents, data and information they deemed important to public interest. It also was meant to allow ordinary Americans to seek information from the federal government about themselves.
Nearly a half-century later, news organizations continue to paper federal agencies with written and electronic requests for records and other information under FOIA, a review of agency logs shows, though they are cash strapped and less likely to press their claims in court. Meanwhile, over the past decade there’s been a surge of requests from bloggers, advocacy groups, corporate lawyers, researchers and even foreign nationals tapping the promise of open records.
This changing landscape means that the information obtained under FOIA may reach the public in a raw, less contextual form. Or it may reach the public through a particular political prism. Or it may not reach the public at all, remaining in the hands of the private interests that sought it out.
Another upshot: Government offices say they are overwhelmed with requests.
“We’re pushing three-quarters of a million” annually, said Fred J. Sadler, who retired recently after four decades in FOIA operations at the U.S. Food and Drug Administration. “You just don’t have enough resources.”
A recent review of thousands of federal court records conducted by Syracuse University’s Transactional Records Access Clearinghouse found that media organizations were filing fewer lawsuits challenging federal government secrecy than in past years. The study, which compared the last four years of the George W. Bush administration with the first term of the Obama administration, found that news organization lawsuits dropped from 22 to 18. This stood out against the total number of FOIA suits brought by all plaintiffs, which was higher during the first Obama term than the last years of Bush’s tenure.
In a separate examination published late last year, Syracuse researchers found that more FOIA lawsuits – 422 – were filed against the federal government in fiscal year 2014 than in any year since 2001. Despite that volume, the report found that The New York Times was the only so-called “legacy’’ news organization to have brought several legal challenges in federal court.
Among the other news groups identified in the 2014 research were more recent industry players: ProPublica, MuckRock and VICE News. Advocacy groups such as the left-leaning Public Citizen and the right-leaning Judicial Watch are also more likely to sue under FOIA laws than many media organizations.
“I do think there has been a move away from serious investigative reporting’’ by traditional media, said Thomas Susman, director of the American Bar Association’s Government Affairs Office and a former Justice Department official who assisted in implementing the FOIA law in the late 1960s.
Susman, who also served as chief counsel to the Senate Judiciary Committee, said the protracted FOIA process and apparent indifference displayed by judges to resolving matters quickly might discourage traditional news organizations from legal challenges.
“At the Justice Department, there has never been incentive other than to slow-walk these cases,’’ he said. “They know the media doesn’t have staying power.’’
Others pointed to the modern-day digital newsroom, which thrives on immediacy.
“So much of news happens so quickly now, and unfortunately the process doesn’t,” said Adina Rosenbaum, an attorney with Public Citizen, a consumer-rights watchdog group.
Scott Hodes, a veteran FOIA attorney and publisher of the popular FOIA Blog, shares that view, and notes that many media organizations are struggling financially.
“If it is a long-term project, the mainstream media doesn’t have the interest or necessarily the resources to play what I’d call the long game,” said Hodes, who added that “mainstream media had a lot of money in the past and they used big law firms. And big law firms charge big fees.”
So who has the money, and the inclination to spend it?
Matt Smith, a veteran journalist with the Center for Investigative Reporting in Emeryville, California, says he often reviews agency FOIA logs to check who else is mucking around in his areas of interest, and finds that private interests are at work.
“Often it’s all law firms, or if you Google names on a FOIA log they are industry investigators or their competitors,” said Smith. “It seems to be less sort of public-serving organizations and more individual interests that are using FOIA for something from which they can profit.”
Then there are advocacy groups like Judicial Watch. It filed about 45 federal FOIA-related lawsuits in 2014 after agencies balked at providing records it had requested, said Michael Bekesha, an attorney for the group.
Judicial Watch last year dislodged from the Internal Revenue Service numerous email communications concerning what the agency has called inappropriate scrutiny of conservative groups seeking tax-exempt status. It also sued to win release of 42,000 pages of documents from the Department of Justice, which had claimed executive privilege, concerning the Fast and Furious scandal, which involved a botched federal gun-trafficking investigation that allowed hundreds of firearms to fall into the hands of Mexican drug cartel enforcers.
“A lot of our victories are holding the agencies accountable. A lot of FOIA lawsuits stem from failure to respond for several months,” he said.
Jason Leopold, an investigative reporter for VICE News, a digital channel launched last year within the Vice media network, said special interest groups, businesses and private individuals all often use of FOIA. Leopold himself has used FOIA extensively to report on national security issues. Efforts to pierce the secretive operations of the military detention center at Guantanamo Bay, Cuba, resulted in a detailed account of the 2012 death of Yemeni prisoner Adnan Latif.
While VICE may not have the pedigree of legacy news organizations, Leopold’s aggressive FOIA pursuits have earned him distinction within the government: He is a party to more than a dozen pending FOIA lawsuits and an estimated 1,000 information requests at agencies across the government.
In some forums, the flood of routine information requests from non-media groups has slowed the release process for documents sought by media organizations, said John Christie, Editor and co-Founder of the Pine Tree Watchdog, an online publication of the Maine Center for Public Interest Reporting. The not-for-profit investigative website does the work that traditional media used to do, such as seeking the release of gubernatorial expenses and spending at the executive mansion.
“When we’ve been slowed down in getting things, and it happened to me last summer, that was one of the reasons we were given,” Christie said.
The Pine Tree Watchdog is not flush with cash, and must take care when it chooses to file suit. Christie taps pro bono attorneys when possible, and longingly recalls the days at Tribune Co. when he was told “just do it” when he needed to sue.
“They always found the money,” he recalled. “We didn’t second-guess ourselves. It’s not like we don’t sue. I’m sure we are doing less of it, because we don’t have the wherewithal we once had as an industry.”
Barbara Wall, Vice President and Senior Associate General Counsel at Gannett Co. Inc., one of the country’s largest media companies, pushes back on the idea that newspapers are backing off investigative reporting. Gannett, she said, is fighting aggressively – and often – in court to do just that.
Wall said Gannett news organizations had more than 20 lawsuits pending across the country, some involving record requests and others seeking access to public meetings and court proceedings.
“These suits lead to important local stories,’’ she said, noting that the Nashville Tennessean reported in 2013 – following a months-long court battle – about how the state had failed to account for the deaths of 25 children in state custody.
“Most of these suits are filed in the state courts under state sunshine laws, and few draw national attention,’’ Wall said.
Yet the costs to fight new legal battles are serious consideration.
Last year, the Tulsa World newspaper joined with the Reporters Committee for Freedom of the Press to sue the state of Oklahoma for records related to the botched execution of Clayton Lockett. The execution prompted President Barack Obama to call for a national review of how the death penalty is carried out.
For the Tulsa newspaper, the partnership means that it can continue its tradition of seeking access but will not have to bear the legal costs. Susan Ellerbach, the newspaper’s executive editor, said litigation was a “very last resort.’’
Had access to no-cost legal representation not been available, Ellerbach said, it’s likely that “we would not have been able to proceed with a lawsuit.’’
Before the longtime family-owned newspaper was sold in 2013 to BH Media Group, a division of Warren Buffett’s Berkshire Hathaway, decisions on legal challenges were made “two doors down the hall,’’ Ellerbach said.
“Now it’s six hours away,’’ she said, referring to the company’s headquarters in Omaha, Neb. “They have a lot more things to consider before they pull the trigger.’’