Newspapers were once the dominant force in dislodging documents and other records from reluctant federal government agencies, but a new crop of media players, advocacy groups and corporate interests now drives the release of information.
The Freedom of Information Act of 1966 was first envisioned as a tool for traditional media to seek documents, data and information they deemed important to public interest. It also was meant to allow ordinary Americans to seek information from the federal government about themselves.
Nearly a half-century later, news organizations continue to pepper federal agencies with written and electronic requests for records and other information under FOIA, a review of agency logs shows, though they are cash strapped and less likely to press their claims in court. Meanwhile, over the past decade there’s been a surge of requests from bloggers, advocacy groups, corporate lawyers, researchers and even foreign nationals tapping the promise of open records.
This changing landscape means the information obtained under FOIA may reach the public in a raw, less contextual form. Or it may reach the public through a particular political prism. Or it may not reach the public at all, remaining in the hands of the private interests that sought it out.
Another upshot: Government offices say they are overwhelmed with requests.
“We’re pushing three-quarters of a million” annually, said Fred J. Sadler, who retired recently after four decades in FOIA operations at the U.S. Food and Drug Administration. “You just don’t have enough resources.”
A recent review of thousands of federal court records conducted by Syracuse University’s Transactional Records Access Clearinghouse found that media organizations were filing fewer lawsuits challenging federal government secrecy than in past years.
The study, which compared the past four years of the George W. Bush administration with the first term of the Obama administration, found that news organization lawsuits dropped from 22 to 18. This stood out against the total number of FOIA suits brought by all plaintiffs, which was higher during the first Obama term than the last years of Bush’s tenure.
In a separate examination published late last year, Syracuse researchers found that more FOIA lawsuits – 422 – were filed against the federal government in fiscal year 2014 than in any year since 2001. Despite that volume, the report found that The New York Times was the only so-called “legacy” news organization to have brought several legal challenges in federal court.
Among the other news groups identified in the 2014 research were more recent industry players: ProPublica, MuckRock and Vice News. Advocacy groups such as the left-leaning Public Citizen and the right-leaning Judicial Watch are also more likely to sue under FOIA than many media organizations.
“I do think there has been a move away from serious investigative reporting” by traditional media, said Thomas Susman, director of the American Bar Association’s Governmental Affairs Office and a former Justice Department official who assisted in implementing the FOIA in the late 1960s.
Susman, who also served as chief counsel to the Senate Judiciary Committee, said the protracted FOIA process and apparent indifference displayed by judges to resolving matters quickly might discourage traditional news organizations from legal challenges.
“At the Justice Department, there has never been incentive other than to slow-walk these cases,” he said. “They know the media doesn’t have staying power.”
Others pointed to the modern-day digital newsroom, which thrives on immediacy.
“So much of news happens so quickly now, and unfortunately the process doesn’t,” said Adina Rosenbaum, an attorney with Public Citizen, a consumer-rights watchdog group.
Follow the money
Scott Hodes, a veteran FOIA attorney and publisher of the popular FOIA Blog, shares that view, and notes that many media organizations are struggling financially.
“If it is a long-term project, the mainstream media doesn’t have the interest or necessarily the resources to play what I’d call the long game,” said Hodes, who added that “mainstream media had a lot of money in the past and they used big law firms. And big law firms charge big fees.”
So who has the money, and the inclination to spend it?
Matt Smith, a veteran journalist with the Center for Investigative Reporting in Emeryville, Calif., said he often reviews agency FOIA logs to check who else is mucking around in his areas of interest, and finds that private interests are at work.
“Often it’s all law firms, or if you Google names on a FOIA log they are industry investigators or their competitors,” Smith said. “It seems to be less sort of public-serving organizations and more individual interests that are using FOIA for something from which they can profit.”
Then there are advocacy groups such as Judicial Watch. It filed about 45 federal FOIA-related lawsuits in 2014 after agencies balked at providing records it had requested, said Michael Bekesha, an attorney for the group.
Judicial Watch last year dislodged from the Internal Revenue Service numerous email communications concerning what the agency has called inappropriate scrutiny of conservative groups seeking tax-exempt status. It also sued to win release of 42,000 pages of documents from the Department of Justice, which had claimed executive privilege, concerning the Fast and Furious scandal, which involved a botched federal gun-trafficking investigation that allowed hundreds of firearms to fall into the hands of Mexican drug cartel enforcers.
“A lot of our victories are holding the agencies accountable. A lot of FOIA lawsuits stem from failure to respond for several months,” Bekesha said.
This is Sunshine Week, when journalists, librarians and other advocates of open government celebrate freedom of information. Look for more coverage in print and online this week.
Still active here
The News & Observer has remained active in pressing in court for records. The newspaper has been part of a coalition of media groups that has sued UNC-Chapel Hill twice in recent years to seek records the university was withholding, and sued a third time on its own.
The N&O and The Charlotte Observer filed suit in 2013 against more than a dozen housing authorities to get payroll records that were critical in their reporting of “Contract to Cheat,” a series about widespread and costly labor violations in the construction industry published last year.