Why FOIA’s speed clause is broken

Wikimedia Commons, treatment by CJR

In August of 2013, the Associated Press made a straightforward records request to the State Department. It wanted Hillary Clinton’s calendars from her tenure as Secretary of State—and it wanted them quickly. Noting the likelihood of a Clinton presidential run, the AP sought to make use of a Freedom of Information Act provision that allows the press to jump to the front of the line when information is urgently needed.

The State Department’s response: there was nothing pressing the public needed to know. The agency agreed to process the request, but did not promise haste. More than two years later, with the presidential election underway and Clinton’s records from her time at the State Department at the center of the story, the agency still has not provided the calendars. It is under a court order to do so by November 5.

The State Department’s response to the AP is increasingly common. In 2014, agencies denied 87 percent of the 9,981 so-called “expedited processing” requests made under FOIA. This is up from a rejection rate of only 53 percent in 2008. And the rejection rate at certain agencies is far higher. The Securities and Exchange Commission granted only three of the 253 expedited processing requests it received last year.

This high rejection rate reflects wider dysfunction in the enforcement of FOIA, the legendary open government law that will mark its fiftieth anniversary next year. “Non-responsiveness is the norm,” Karen Kaiser, general counsel for the AP, told a US Senate panel in May. “The reflex of most agencies is to withhold information, not to release, and often there is no recourse for a requester other than pursuing costly litigation.” 

Journalists are always complaining about FOIA. Yet, there is surprisingly little talk about the provision that can fast track media requests. Legally speaking, the expedited processing provision is special. It is one of the few laws that grant journalists a preference over ordinary citizens, in this case putting them at the front of an agency’s often-lengthy FOIA queue. 

In recent years, however, the government’s definition of “urgent” has drifted far from the media’s. “The whole thing is a bit of a joke,” said Mark Horvit, executive director of Investigative Reporters and Editors. He explained how a FOIA request made two years ago by a student of his was just fulfilled—after the student’s graduation. “So what is expedited? One-and-a-half years?” 

Federal officials say journalists may be expecting too much.

“The standards are strict,” says Melanie Ann Pustay, director of the Justice Department’s Office of Information Policy, which oversees FOIA compliance. She suspects that “more and more requesters are asking for expedited processing, but they’re not meeting the standard.”

The law says that when there is “compelling need,” an agency will expedite. Under FOIA, there are two ways to demonstrate such need: When there is “an imminent threat to the life or physical safety of an individual”; or when the requester is “a person primarily engaged in disseminating information” and there is an “urgency to inform the public concerning actual or alleged Federal Government activity.”

It would seem that in many instances journalists should be able to make the case for compelling need. They are, of course, often writing about issues of pressing importance to the public. But just what qualifies as urgent under FOIA is murky, and the statute doesn’t offer detailed guidance. Some agencies have elaborated on the law through regulations. For example, the State Department defines urgent need as occurring when the information sought has “a particular value that will be lost if not disseminated quickly.” According to the regulations, “[o]rdinarily this means a breaking news story of general public interest.” The Justice Department’s regulations indicate that journalists can get expedited processing when there is a “matter of widespread and exceptional media interest in which there exist possible questions about the government’s integrity that affect public confidence.”

Agency regulations may help, but determining what qualifies as a “matter of widespread and exceptional media interest” or whether information has a “particular value that will be lost if not disseminated quickly” is difficult for a seasoned journalist, much less an agency FOIA official. And as the Justice Department’s Pustay acknowledges: “journalists might perceive urgency in a far more generous way” than an agency does. Ultimately, it is hard to know how agencies are reasoning through these decisions. They typically don’t offer detailed explanations for their denials of expedited processing.

Judges aren’t making things clearer. In a key case, a federal appeals court held that there was no urgency when a media request did not involve a “currently unfolding story.” That has left other judges demanding journalists fork over a dozen or more news stories on the topic of the request to prove urgency. Any reporter trying to break news may be out of luck.

And even if many other news stories exist, courts have required they address precisely the same issue as the request. For example, in denying an expedited request made by the Electronic Privacy Information Center, or EPIC, to the Department of Defense, a court noted that two New York Times articles submitted by EPIC concerned government data-mining generally and not the specific data-mining software program that was the subject of EPIC’s request. The court feared that granting the request “would open the door” to requests on any one of 199 different “data mining efforts” by government agencies. If the court were to prioritize all such requests, the court concluded, it would “effectively prioritize none.”

Even if journalists meet the standard and their requests are granted, they could be waiting a long time for their records—more than twice as long as just a couple of years ago. Average wait time last year for the federal agencies that reported this data was 102 days. Pustay says many requests for expedited processing are complex. And there are far more of them. This past year there were 9,981 requests as compared to 7,385 in 2008. Pustay surmises the jump is due to an increased focus on transparency in society at large. “The more we talk about transparency,” she says, “the more people want to use FOIA.”

Journalists argue the delays are holding up big stories. It is why the AP sued the State Department over Clinton’s calendars, email, and other records. “One can certainly make a reasonable argument that having the relevant information about a presidential candidate before the election is critical,” said Jay Ward Brown, who is representing the AP. “The State Department doesn’t see it that way.”

The federal judge overseeing the AP’s case recently reprimanded State Department officials for “dragging their feet” for years. Judge Richard J. Leon told the agency: “There is no reason I can conjure…as to why there’s been any delay in locating Secretary Clinton’s calendars and schedules.”

The State Department complains that it is overwhelmed. In a court filing, the agency pointed to a dramatic upswing in FOIA requests and not enough funding to keep pace.

Reporters requesting records from other agencies have had similarly long waits. Ken Ward, Jr. of The Charleston Gazette filed expedited requests in February 2014 after chemicals from a coal mining operation contaminated the local drinking water supply. Ward wanted to find out, among other things, how the Centers for Disease Control and Prevention determined what level of the chemicals in the water was safe to drink.

A veteran filer of such requests, he knows the legal standard for expediting them. “I don’t have to show that if I don’t get these records tomorrow people will die. I just have to show an urgent need,” Ward says. “How can you show a more urgent need than that there’s something in the water that could hurt families and their kids?”

The CDC rejected his request to speed the process. Then, in a letter sent to Ward a few months later, a CDC official wrote: “Our estimated backlog is currently 800,000 pages. Because of the backlog, we anticipate that it will be 24-36 months before we begin processing your request.” More than 18 months after it was made, the request has not yet been fulfilled.

But media lawyers and open-records advocates are not giving up. They want reporters to continue filing requests for speedy processing in the hope of forcing agencies to comply with the law. Said Brown, the AP’s lawyer: “We absolutely have to keep using it and keep pressing.”

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Erin Carroll is an associate professor of legal research and writing at Georgetown Law and a former journalist. Find her on Twitter @erinccarroll13.