Photo credit: Scott
First Person

Six lessons from a five-year FOIA battle

September 28, 2016
Photo credit: Scott

I filed my first Freedom of Information Act request on February 1, 2012. I was 26 years old, and chasing a story about my father’s med-school classmate, Dr. Paul Volkman, who had been convicted of a massive prescription drug dealing scheme the previous year. The aim of the request was simple: I wanted to see the evidence the jury saw during Volkman’s eight-week trial in Cincinnati for a book I’m writing about the case. But everyone I asked–the US district court clerk, the appellate court clerk, the prosecutor, and the judge who presided over the case–declined to give me the documents. It was time to make an official request to the Department of Justice.

To make a very long story short, in March of 2015, that FOIA request turned into my first FOIA lawsuit. And, earlier this month, I received my first FOIA judgment, which, I’m happy to report, is also my first FOIA-lawsuit victory. In a 17-page decision, US District Court Judge Jack McConnell cited Serial and Making A Murderer, wrote “Public scrutiny of judicial proceedings produces a myriad of social benefits,” and ordered the Drug Enforcement Administration to fork over the requested documents within 60 days.

It took more than four and half years to receive that judgment. And, during that time I began joking that I had attended “FOIA University.” Today, the prospect of postgraduate study looms; if the government appeals, it could extend this ordeal by months, if not years. But, with Judge McConnell’s decision in hand, I’d like to share a few of the things I’ve learned.  What follows is the cheat-sheet I wish someone had handed me five years ago.

1. Know your rights. Everyone knows about the Bill of Rights. But people have rights under the Freedom of Information Act, too–and journalists have an obligation to learn them.

Consider a few things I was surprised to learn during my FOIA adventure. One, anyone in the world can file a FOIA request; there is no US Citizenship requirement. Two, all requesters are legally entitled to an estimated completion date. (See the second-to-last paragraph of this DOJ memo.) Three, journalists are entitled to special fee-waiver privileges under FOIA. Four, requesters can file a second FOIA request for the processing notes from a previous FOIA request. In my case, “FOIAing my FOIA” yielded some interesting, if depressing, behind-the-scenes info. One released email showed that, at one point, my request was forwarded to the wrong DEA field office, where it was accidentally deleted.

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2. The world of FOIA. Everyone who files a FOIA enters a vibrant and endearingly nerdy subculture. There are FOIA newsletters, FOIA meet-ups, FOIA comedy shows, and FOIA awards. There are FOIA-friendly organizations, like the Electronic Frontier Foundation, the Reporter’s Committee for Freedom of the Press, and the National Security Archive. And there are FOIA folk heroes, like Vice’s Jason Leopold, and Brandon Smith, the Chicago-based freelancer who turned the city upside-down with two public records requests.

In short, there are lots of people with your same mix of curiosity, gallows humor, and righteous anger. And you can meet them by following the #FOIA hashtag on Twitter.

3. The media’s FOIA blind spot. You would think that reporters and editors care more about FOIA than anyone else. And many do. (See previous item.) But as my “FOIA nightmare” dragged on, I realized that many are uninterested, or unwilling, to cover the bleak reality of records requesting .

One editor at a national outlet told me, “Unfortunately, I think the FOIA stuff is a little inside media baseball for our site.” A national-outlet reporter said, “It’s an interesting case, but we wouldn’t normally cover FOIA litigation.” Another national-outlet reporter told me, “our lawyer does think it’s an important, interesting example of government transparency issues” but coverage “doesn’t quite work for us.” Another told me, “we’ve all got FOIA horror stories to share…what’s so special about yours?” Many reporters simply never responded to my emails.

These rejections compelled me to write an op-ed reminding journalists that “We are the transparency police. And if we don’t fight for this stuff, nobody will.” Here, I’ll simply urge reporters and editors to ask yourself, “What would I do if a reporter approached me with a stonewalling story?” And, “What kind of support would I want from reporters if I were being stonewalled on a major story?” I know you’re all busy–that was another reason reporters declined to write about my case–but take a minute to sincerely think about your answer.

I’ll also say this: it wasn’t until I was stonewalled by the government and ignored by fellow journalists that I understood the activists’ axiom, “Silence is compliance.” Silence about FOIA cases almost always benefits the agencies withholding documents. So when you ignore a story about bad FOIA behavior, you’re not being neutral; you’re helping the government keep taxpayers in the dark.

4. FOIA is money. FOIA fights aren’t just about documents, they’re also about money. There are few simple reasons for this.

First, FOIA battles gobble up a reporter’s precious time and labor. And sometimes the process involves actual payments, like the bogus $154 “review fee” I paid to an agency that held my request for nine months before transferring it to the DEA.  I haven’t sat down and calculated the total financial loss from my significant outlay of time calling FOIA offices, filing formal complaints with the “FOIA Ombudsman,” writing letters to Congress, preparing my lawsuit, and helping my lawyers craft legal arguments, but I know this: it was all time I could have spent pitching and writing other stories.

Second, FOIA fights often require legal representation (more on that in a moment), and lawyers cost money. Even if you receive pro bono representation, like I did–shout out to the Rhode Island ACLU and Neal McNamara and Jessica Jewell, from the Providence office of Nixon/Peabody–it’s because a firm has consciously decided to donate its highly-billable time and labor to your cause.

Third, as Jason Leopold explained in congressional testimony in 2015, news is a perishable commodity. “Information about a candidate is less newsworthy after the election is over, and information about a war is less newsworthy after the conflict is over,” he said. Quite simply, delays diminish the value of documents being sought. 

The lesson here? You should be clear-eyed about the financial effects of FOIA battles before you begin. And you should also be aware that, generally speaking, these effects are not equally distributed. Freelancers and news organizations are much more financially vulnerable than federal agencies with virtually unlimited time, money, and legal resources. Plan accordingly.

5. Prepare to sue. It’s not a coincidence that many of the biggest FOIA scoops, from news of the Obama administration’s behind-the-scenes lobbying against FOIA reform to revelations about Edward Snowden’s pre-whistleblowing activities, are the fruits of litigation. FOIA denials are at an all-time high, and so, too, are FOIA lawsuits. As Associated Press General Counsel Karen Kaiser said in 2015 Senate testimony, “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.”

So, if you’re filing a FOIA, and you actually care about getting results, start thinking about the eventual lawsuit. Talk to your local ACLU. Read the RCFP’s how-to guide to FOIA litigation. Ask your editor if you have a legal budget. Whatever you do, don’t think of litigation as a far-off, slim-chance possibility. Think of it as a likely step to getting the documents you’re requesting.

The Age of FOIA Innocence, if it ever existed, is over. It’s time to lawyer up.

6. Final words of inspiration. I’ve read a lot about FOIA by now, from LBJ’s signing statement from July 4, 1966, to President Obama’s FOIA memo from his first day in office, to the House Oversight Committee’s “FOIA Is Broken” report from January (in which I’m featured), to MuckRock’s FOIA-unlocked complaints from the CIA cafeteria. But few passages have inspired me like one I found in Jon Weiner’s account of his 14-year FOIA-battle over the release of John Lennon’s FBI file.

In the introduction to Gimme Some Truth: The John Lennon FBI Files, Weiner writes, “The basic issue here was not simply John Lennon”:

The basic issue was that government officials everywhere like secrecy. By keeping the public from learning what they have done, they hope to avoid criticism, hinder the opposition, and maintain power over citizens and their elected representatives. Classified files and official secrets lie at the heart of the modern government bureaucracy and permit the undemocratic use of power to go unrecognized and unchallenged by citizens.

Democracy, however, is not powerless before this practice. In the fight against government secrecy, America has led the world. In 1966 Congress passed the FOIA, which requires that officials make public the information in their files to “any person” who requests it, unless it falls into a small number of exempted categories, including “national security.” The act was substantially expanded in 1974 in the wake of revelations of White House abuse of power during the Watergate scandal. The FOIA, in effect, created a notable challenge to the history of government secrecy; it provided a set of rules and procedures, officials and offices dedicated not to the collection and maintenance of secrets but rather to their release to the public. Journalists, scholars and activists, have used the FOIA to scrutinize the operations of government agencies and expose official misconduct and lying, including the FBI’s illegal efforts to harass, intimidate, disrupt, and otherwise interfere with lawful political actions. The John Lennon FBI files provide an example.

Now get out there and request some documents.

Philip Eil is a freelance journalist based in Providence, Rhode Island. He sued the Drug Enforcement Administration under the FOIA, with help from the Rhode Island ACLU and two pro-bono attorneys, Neal McNamara and Jessica Jewell. Follow him on Twitter: @phileil.