How the Freedom of Information Act creates bureaucratic barriers to the truth
When investigative journalist Sharyl Attkisson requested documents from the Pentagon via the Freedom of Information Act in 2003, her daughter was eight years old. By the time Attkisson received a response to her FOIA request, it was 2013 and her daughter was going off to college.
“And the response they provided was heavily redacted,” Attkisson said.
The FOIA, established for citizens to obtain documents from federal agencies, is seen by many as a symbol of freedom of the press in the United States. But for others, the FOIA is a fundamentally flawed system.
One such critic of the law is Jason Leopold, senior investigative reporter for Vice News. Leopold said while he has had some successes using the FOIA, such as accessing documents pertaining to the Central Intelligence Agency’s torture program and forcing the State Department to release Hillary Clinton’s emails, such victories only came after prolonged battles with the government. And he said in some cases, such as when he requested documents from the Federal Communications Commission about the commission’s activities on the issue of net neutrality, the documents are so heavily redacted that they are of little use.
“It’s a very frustrating process dealing with this and I’m always encountering documents that are redacted, agencies that are trying to figure out how they don’t have to give me any information or how to thwart my attempts to gain information,” Leopold said.
Many critics of the FOIA — such as Leopold and Attkisson — and open government advocates say obtaining documents through the FOIA takes far too long and argue the way the FOIA has been administered doesn’t work well because government agencies look for any excuse to not disclose any requested information.
A long wait
Under the law, government agencies must respond to FOIA requests within 20 business days unless there are “unusual circumstances.” However, as seen by Attkisson’s requests that was answered 10 years later, documents asked for through FOIA are not always disclosed in a timely manner.
Attkisson said it is common in the requests she has made for government agencies to simply ignore them. Additionally, she said another problem with the FOIA law is that all requests are put in the back of a queue, even requests that could be easily granted.
“They put you in a long queue that will never be answered and the material, if it is ever answered or provided, it’s is so heavily and impossibly redacted that it’s beyond use and it’s been so long that it’s no longer useful for the news story you were working on,” Attkisson said.
Leopold said the queue system factors into his determinations over whether or not to sue the government when they refuse to grant him a file or ignore his request.
“When I sue it means that I’m simply just going to the top of the pile and then the agency is simply producing the records,” he said.
However, Leopold said most of his FOIA requests are still in the government backlog. He estimated he has more than 1,000 FOIA requests that the government has yet to respond to.
Judith Burns, a spokesperson for the U.S. Securities and Exchange Commission Department of Public Affairs, wrote in an email that in the fiscal year 2015, the average response rate for “simple requests” under the FOIA was 14.9 days. For “complex requests,” Burns said the average response rate was 91.36 days.
Brandon Smith, recipient of the 2016 Izzy Award from the Park Center for Independent Media for outstanding achievement in independent journalism and the journalist who used the FOIA to force the release of the video showing a Chicago Police Officer shooting 17-year-old Laquan McDonald as he walked away, said the lack of ramifications for ignoring FOIA requests contributes to the delay in acquiring information.
“The main reason it would seem that the federal law is without teeth is that it has no penalties as to time,” Smith said.
Harry Hammitt, editor and publisher of Access Reports — a biweekly newsletter on the FOIA — added that the amount of time it takes government agencies to respond to FOIA requests makes it difficult for journalists on short deadlines to obtain information they can use, limiting who can realistically use the FOIA.
“FOIA is used fairly successfully by a number of journalists, but not people who need to get information quickly,” Hammitt said.
Culture of non-disclosure
One of the common complaints about the FOIA is the culture among government bureaucrats of withholding anything possible when information is requested under the FOIA.
Hammitt said whenever it is possible, government employees attempt to invoke one of the nine exemptions they can use to withhold information. He said one of the most common exemptions used to withhold information is the privacy exception, in which government officials claim disclosing the document would constitute an invasion of someone’s privacy.
Attkisson said another common exemption the government uses to withhold information requested under the FOIA is the B5 exemption, or “deliberative process privilege.” Attkisson said the vagueness of the term has allowed the government to put this exemption to use frequently.
“Pages and pages, hundreds of pages sometimes, are largely or entirely blacked out with the letter and number B5 and it’s been nicknamed, because of its abuse, the ‘withhold it because you want to’ exemption,’” she said.
“When it falls up to the bureaucrats and their political bosses to interpret the law, they’re interpreting it very narrowly,” she said. “Their presumption is to withhold automatically everything. And it should be the opposite.”
Attkisson said the problem with the FOIA is the decision whether to disclose sensitive information is put in the hands of the people who have an interest in keeping that information a secret. Attkisson believes many FOIA requests are not fulfilled by design, with the government withholding information because it can under the exemptions in the law. Leopold said government officials can violate the FOIA and usually get away with it. He said he knows the only way he’ll get records is if he sues.
Robert Freeman, executive director of the New York State Committee on Open Government, said federal courts are also complicit in enabling government agencies to withhold information requested under the FOIA.
“In too many instances, federal courts have simply taken the word of the federal agency as the basis for their denial [of FOIA requests],” Freeman said.
Hammitt said by using the FOIA exemptions so aggressively, the government is withholding from the people a valuable resource.
“Government information is an important thing for all sorts of people,” he said. “The idea that this all should be withheld because it’s exempted, either in full or in part under one of the exemptions, I find really distasteful.”
The FOIA under Obama
President Barack Obama has claimed his is the most transparent administration in history. But others take a different view on Obama’s record fulfilling FOIA requests.
Attkisson said she doesn’t view the Obama administration as being transparent and honoring more FOIA requests than other administrations.
“It’s gotten worse in my opinion and experience, every year with every administration,” she said. “Part of it is because I’m using [FOIA] more, but if you listen to other journalists who have done this longer, they say this is by far the worst administration of all.”
Attkisson cited an Associated Press analysis from 2016 of FOIA requests made in 2015. The AP found that the Obama administration set a record with 77 percent of the time those requesting documents under the FOIA received either censored files or no files at all. According to the AP story, in the first full year after Obama’s election, that number was 65 percent.
Leopold agreed the Obama administration is highly secretive. He said in his experience, the administration of George W. Bush was actually more open than Obama’s. The secrecy of the Obama administration is even more disappointing, Leopold said, because of the lofty promises, and claims of transparency Obama has made.
“The Obama administration made it clear that they were going to be the most transparent,” Leopold said. “And they constantly say they are the most transparent in history. And the frustrating part of that is that it’s simply not true.”
However, Freeman said he doesn’t think there’s a huge difference between the Obama administration’s level of secrecy and other administrations in history. He said while it’s likely harder now than it was 25 years ago to obtain documents, there is a treasure trove of information available on government websites.
Hammitt agreed that the Obama administration has made more information available online than many other administrations. However, he said the reality of the Obama administration’s transparency doesn’t match the soaring rhetoric the president uses regarding the issue.
“The Obama administration seems to have talked the talk but not walked the walk,” he said. “They don’t seem to have recognized the sorts of things they could do to make information public. I think that lots of people have been incredibly disappointed in what could have been.”
A better FOIA
With the government often stonewalling reporters seeking information through the FOIA, Attkisson said bureaucrats must be held accountable for violating the FOIA if they illegally withhold documents.
“If one person went to jail for improperly withholding material, they’ve done that under state laws in FOIA … they’d have a much better response to their FOIA requests,” she said.
Leopold agreed that criminal penalties for withholding information are essential for creating a better open access law. He added that a crucial reform to the FOIA is making it more efficient by creating an online portal people can file requests through.
Additionally, Leopold said there needs to be a reform to the deliberative process exemption, which he said has been abused by the government to withhold documents whenever it wants to. Finally, Leopold said setting in stone how agencies are supposed to deal with FOIA requests would improve the law.
“Codifying President Obama’s 2009 memorandum into law, in which he instructed agencies to act with the presumption of openness, making that actually law would improve it,” Leopold said.
Additionally, Hammitt said there needs to be a change in perspective regarding the way agencies deal with releasing documents. Instead of using the exemptions under the FOIA whenever possible, agencies should only use exemptions when it is absolutely necessary, he said.
Freeman said there is an example of a great FOIA law the U.S. could adopt if it wanted to improve the ability to access records.
“When I’m giving a talk, if someone asks what state has the best Freedom of Information Law, my answer is Mexico,” Freeman said. “Mexico passed a terrific law a little over 10 years ago.”
Freeman said the law in Mexico took advantage of technological advances to make the FOIA process more efficient and said the U.S. could improve its law by doing the same.
FOIA isn’t useless
Despite its flaws, Leopold said, as a national security reporter, the FOIA is his most important tool. He said because national security information is often classified, the FOIA is an essential tool in his repertoire.
Hammitt agreed, adding that FOIA is usually more useful for journalists who can afford to wait for a reply.
“If you set out your plan far enough in advance, oftentimes you can get really quite useful information from FOIA,” he said.
Freeman said the FOIA works best in small communities where government officials can truly be held accountable to their constituents.
“There is … direct accountability between the residents of a community and the people who represent them in government,” he said. “It’s different as we go higher.”
Smith, a journalist who has used the FOIA to expose police corruption, said despite the FOIA’s flaws, valuable information can come from it.
“It’s not like it’s perfect and you can never guarantee that they’re searching in all the right places and they give us everything they find, but we also can’t speculate that they’re not because we have no information to that effect,” he said. “We just have to use it and use it and use it and good stuff does come from it.”
Evan Popp is a sophomore journalism major who get you to confess your secrets without the government’s help. You can email him at email@example.com.