Ask any journalist and they’ll tell you the Freedom of Information Act process is broken. Denials are at record highs, navigating the bureaucracy can be a nightmare, and the federal agencies recently killed a modest reform bill. But a series of FOIA lawsuits also have just shown how the 50-year-old transparency law can still be indispensable. And absent any change in the law, the best way for news organizations to make sure it stays relevant is to use it innovatively and aggressively.
A study by Syracuse’s Transactional Records Access Clearinghouse showed that, with the exception of The New York Times, no legacy news organization sued the government under FOIA in 2014. But where print newspapers have largely faded away, digital-only news organizations—including some that are foolishly caricatured as mere meme generators and gossip mags—are thankfully starting to spend the time and money to fill the gap.
Take Vice, which has invested in journalist Jason Leopold’s FOIA work in a huge way. Since he joined Vice last year, Leopold has filed more than a dozen FOIA lawsuits, outpacing almost all other news organizations combined. And it’s paying off: On one day two weeks ago, he published a story in the morning based on one of his lawsuits that detailed how the CIA spied on the Senate during its investigations into the Bush-era torture program. Then in the afternoon, Leopold found out he’d won another motion in his lawsuit against the CIA for more information regarding the spy agency’s secret rules for targeting Americans with drone strikes. Recently he’s exposed the former NSA director’s financial conflicts of interest, shady CIA contractors, Congress’s attempt to get dirt on Edward Snowden, and liberated Hillary Clinton’s emails—all as a result of his lawsuits.
At other news organizations, “for some reason, the powers that be are not looking at what the payoff could be: the documents, the stories, the transparency,” Leopold told me. “I think there is some sort of fear of the cost and the time involved, but the fact remains that we’re suing because of how broken the FOIA process is.”
BuzzFeed, which has also quietly ramped up its FOIA work, plans to get even more aggressive in the face of the record number of government denials, BuzzFeed Assistant General Counsel Nabiha Syed, who has been spearheading the news organization’s new approach to FOIA, told me. “We’ve noticed that agencies deny requests on questionable grounds or delay their responses unnecessarily, in no small part because they can get away with it. BuzzFeed is committed to holding those agencies accountable—and if that takes litigation, we’re happy to take that fight as often as is necessary,” Syed wrote in an email to CJR.
In addition to not being hesitant to file lawsuits, BuzzFeed is planning to issue its own “sunshine report” later this year that will reveal where all their records requests go, how long agencies take to respond to them, how many denials they’re getting, and who is doing the denying. They hope it’ll pressure the government agencies they’re tracking, but also spur other news organizations to release their own sunshine reports.
Syed said BuzzFeed also plans to apply A/B testing, similar to the kind it uses on its attention-grabbing headlines and Facebook posts, to the FOIA process as BuzzFeed reporters increase the number of requests they send out. They want to use data to figure out how agencies respond to short requests vs. long requests, broader requests vs. more specific ones, and which agencies are more likely to respond quickly to the same request.
Gawker, which recognized that Hillary Clinton was using a private email address years before it became fodder for daily headlines, sued the State Department under FOIA earlier this year for emails from a few of Clinton’s key aides. When they filed their initial request, the State Department claimed the emails Gawker requested did not exist. Now all of a sudden, in the midst of defending the lawsuit, the State Department has magically found thousands of emails.
As Gawker’s JK Trotter wrote at the time, “Journalists should not have to file expensive lawsuits to force the government to comply with the basic provisions of the Freedom of Information Act.” Unfortunately, that is where we sit.
David McCraw, The New York Times’ vice president and assistant general counsel, explained to Congress earlier this year that the FOIA bureaucracy is maddening, and often their only choice is to sue or forget about ever getting the document. McCraw pointed to a recent example in which the Times’ David Barstow was told he would receive a response to his request 15 years after he filed it. McCraw sued on his behalf and quickly won.
The Times is the rare exception to the rule that traditional organizations have forgone FOIA: they commendably filed at least five FOIA lawsuits in 2014. McCraw has previously said that he and his colleagues “feel that using this law is an essential part of our mission.” If only other news organizations defended the practice as strongly.
To be fair, with millions in venture capital funding, news outlets like Vice and BuzzFeed can probably afford multiple lawsuits. Long-running FOIA lawsuits can potentially be expensive, and many newspapers are cash-strapped. But it’s as much an investment in news coverage as it is an expense. Leopold was funding his own lawsuits before he even got to VICE, and news organizations can also seek attorney’s fees if they win. Sadly, it’s often the only way to keep the government honest, given how often federal agencies have been caught flagrantly disregarding the law.
As Leopold explained, when dealing with intelligence agencies, sometimes the only way is to sue. “With the CIA, it would be impossible to get these documents in a realistic time frame without suing,” he said. “My experience has shown me they would just blow me off. It takes a lawsuit to get any information related to intelligence or national security.”
But there’s “only one way to get to the lawsuit stage,” Leopold said. “File the requests first.”