When the documentary filmmaker Laura Poitras filed a complaint under the Freedom of Information Act (FOIA) against three US government agencies this week, most media outlets ran stories on the details that built her argument, overlooking the issue of public records.
After all, who could resist the story of a bitter and burned federal government hounding a journalist who appeared to have crossed some unspoken line? More than 50 times between 2006 and 2012, her lawsuit alleges, security forces targeted the journalist for intense rounds of detention and questioning. Government officials had, at one point, even confiscated her laptop, cellphone, and notebooks. Poitras’ films had largely focused on the rotten fruits of post-9/11 America, both at home and abroad. She went on to win top-notch awards for her work with Edward Snowden, the former government contractor who in 2013 leaked National Security Agency files on hidden mass-surveillance programs.
It’s an important story with profound implications for the press. Yet lost in the narrative was the legal spine of her case, a second threat to journalism in this country: the worrisome way the federal government handles FOIA requests.
These systemic delays in responding to requests have really hampered the ability of journalists to use FOIA as a tool.
Poitras’ lawsuit does not seek damages for harassment, as some news outlets and blogs mistakenly claimed and/or implied. She just wants to know what information the government has on her. She filed a series of FOIA requests in 2014—all of which were either caught in the backlog or denied. More than a year later, after making no progress, she filed the complaint that’s now in the news cycle. Delayed responses, silence, and rejected FOIA requests are problems US journalists encounter far more often than government bullying in airports, as chilling as the latter may be.
“We’re usually talking in terms of many months, if not years, before responses are received,” says David Sobel, an attorney who represents Poitras pro-bono, on behalf of the digital civil liberties group the Electronic Frontier Foundation. “Certainly, for purposes of journalism where the timeliness is critical, these systemic delays in responding to requests have really hampered the ability of journalists to use FOIA as a tool.”
In March, the Associated Press published an analysis of 2014 FOIA data, revealing a “backlog of unanswered requests” that totaled 200,000, up 55 percent from the previous year. With the exception of the The Intercept, which Poitras co-founded, and a handful of others, most news organizations left that statistic on the cutting room floor. Not one outlet mentioned the 375 full-time federal records employees who were let go last year, or how 91 percent of requests garnered a response, a 4 percent drop from 2013 (the law mandates an acknowledgement within 20 business days). The media also neglected to mention that the feds rejected, or censored, 39 percent of all requests, an all-time high, according to the AP.
Poitras solicited documents from seven government agencies, including the FBI, the Department of Homeland Security, and Customs and Border Protection. Official responses ranged from requests for additional information to silence to denials. In some cases, she filed appeals, which remain unresolved. The AP analysis found that roughly a third of the government’s rejections were overturned upon appeal last year.
While journalists often hit roadblocks when requesting information, Poitras had come up against something closer to a steel barricade. Open-government advocates and journalists say it can sometimes be especially challenging to pry information—documents, data, or the names of some in-house legal opinions—from the national security arm.
“I’ve been doing this for 30 years, and it’s never been good. During that period of time, there certainly has not been any golden age of transparency,” Sobel says. “Some people say this administration has been more secretive than others. I’m not sure if that’s necessarily the case, but, certainly, they haven’t done anything to turn back the trend in increasing national security secrecy.”
Intelligence agencies typically rely on three exemptions to deny FOIA requests, says Katherine Hawkins, a national security fellow at the advocate group OpenTheGovernment.org.
The first applies to classified information, which is subject to judicial review. A challenge can take a long time, though, and judges tend to side with the government. It’s an inherently flawed system. “The very people who have the most to hide are deciding what to hide,” Hawkins says. This exemption sometimes yields a Glomar response, in which the government neither confirms nor denies the existence of a document, a messy conundrum for information seekers.
Another exception allows intelligence entities to keep secret documents that cannot be disclosed under any other law. Laws that protect loosely defined intelligence “sources” and “methods,” even if the material is not classified, are most troubling to Hawkins.
Then there’s what open-government advocates call the “withhold it because you want to” exemption, which restricts certain documents only to the feds and those in litigation with an agency. Officials use this tool when reporters pursue Office of Legal Counsel memos, but it has a long reach that’s been known to cover crucial information, Hawkins says. Think drone strikes and torture.
Some reporters find success in navigating these shadowy agencies. Take Vice News’ Jason Leopold, whose public-records victories, including the acquisition of files on Occupy Wall Street, earned him the nickname “the FOIA terrorist.” But others abandon FOIA altogether. After 9/11, when the investigative reporter Josh Meyer moved to Washington, DC, to cover national security, he quickly wrote off the process.
“The whole FOIA construct for national security reporting in a post-9/11 environment has seemed to be so user-hostile that it almost wasn’t worth the time spending on it,” says Meyer, who now heads Medill’s National Security Reporting Project. “If I knew that there was information that I could get, I would just try to get it leaked to me, or given to me sort of informally, without a FOIA.”
Many of his peers on the national security beat shared that attitude, he said.
These laws and these restrictions allow for somebody who doesn’t want to release information very quickly to find ways not to.
The inefficiencies and questionable secrecy in federal public-records offices trickle down to the state and local levels. Dan Bevarly, the interim executive director of the National Freedom of Information Coalition, says the adoption of digital records is causing headaches for often poorly trained and under-funded recordkeepers and, in turn, requesters. In some areas, technology is also causing a split in the law. For example, South Carolina exempts police body-cam footage from public-records requests, but dash-cam footage is fair game. In general, Bevarly says, fees are increasing for the records local governments do release.
Public-records laws vary from state to state and even from department to department. It’s an erratic field for reporters—and concerned citizens—to traverse, sometimes opening the door to sweeping requests that further bog down the system. The maze also acts as a dumping ground for officials with junk to bury.
“Most governments have a good interest to get information out to the public, but we’ve also seen some cases where government has lagged in getting information out because it’s a bad news story,” Bevarly says. “These laws and these restrictions allow for somebody who doesn’t want to release information very quickly to find ways not to.”
Earlier this month, after the 49th anniversary of FOIA, the federal government announced a six-month-long trial in which seven agencies will respond to records requests, when approved, by publicly posting the information. The move riled some journalists, who saw it as a blow to the almighty scoop—and the previous reporting surrounding whatever information the authorities might deliver. What might be of more concern, though, is a faux sense of transparency orchestrated by a tight-lipped government.Jack Murtha is a CJR Delacorte Fellow. Follow him on Twitter at @JackMurtha