9. Newsgathering & FOIA

Response to a Freedom of Information Request in 2009 to the Office of Surface Mining concerning dangerous conditions of sludge dams in the coal fields of West Virginia.

Reading notes: Trager covers invasion of privacy and trespass cases in Ch. 8, including Wilson v Layne, the photographer ride-along case, which we covered in section 5 (Privacy). 

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Popular government without popular information or the means of acquiring it is but a prologue to a farce or a tragedy.“   — James Madison

“Sunlight is said to be the best of disinfectants.” — Justice Louis Brandeis

“For all who do evil hate the light and do not come to the light, so that their deeds may not be exposed. But those who do what is true come to the light, so that it may be clearly seen that their deeds have been done in God.” – John 3:20-21.

The Freedom of Information Act is a federal law requiring federal agencies to respond to formal requests for information and to release documents if they do not fall under exemptions. Most states also have FOIA laws and nearly every agency at the state and federal level has a designated FOIA officer, which is usually someone in the agency’s public affairs office.

The federal FOIA law was passed unanimously in 1966, and no one in Congress spoke against the idea. One senator said it was a “historic victory for the public’s right to know what their government is doing.”  In signing the legislation July 4, 1966, President Lyndon Johnson said the bill “springs from one of our most essential principles: A democracy works best when the people have all the information that the security of the nation permits.” 

State support for the FOIA concept was also strongl. At the time, over half the states had already passed FOIA bills and companion legislation about open meetings, called “sunshine” laws. Since then, nearly all states have adopted FOIA and sunshine laws.

It was simply taken for granted that the American people have a right to know about government, and that was considered uniquely American, something that did not happen in London or Paris, much less Moscow or Beijing. “The British government … is quite openly and without shame regarded by both civil servants and political ministers as a sacred mystery on not account to be explained to the uninitiated,” wrote one London Times reporter in 1966. And yet, in the United States,  “all hearts are open, all desires known and no secrets are hidded (at least for long),” said Anthony Howard, The Bureucratic Curtain, New York Times, Oct 23, 1966.

Since then, every administration has issued its own interpretations of the FOIA. President Bill Clinton’s attorney general, for example, said that documents should only be withheld “if disclosure would be harmful.”   By the 21st century, especially in the wake of the World Trade Center attacks of 9-11, the US government moved to clamp down on openness in government, and Bush administration said documents should be withheld “if there is a sound legal basis for doing so.” The change in wording was considered to be a significant blow to openness in government, and the Bush administration became known for a secretive approach to government.

In contrast, President Barack Obama, on his first day in office, signed an executive memo opening government documents, saying that in the face of doubt, openness should prevail.

Even so, there have been many protests by news organizations and FOIA watchdog groups over the lack of accountability and responsiveness by federal agencies during the Obama administration as well as those before it. The fact that many news reporters and photographers have been turned away from cleanup areas surrounding the BP Gulf of Mexico oil spill in the summer of 2010 was cause for a good deal of protest from the media.

There are many specific cases involving the FOIA that can be found in the http://openthegovernment.org/ and the Reporters committee for freedom of the press – rcfp.org

Exemptions to FOIA

Initially the idea behind FOIA was to open all records except in circumstances that were exempt: 

      • national security;
      • internal personnel issues;
      • trade secrets;
      • drafts of interagency memos;
      • records on individuals, eg medical, personnel;
      • bank regulation;
      • oil and gas exploration; and
      • law enforcement

The law enforcement exemptions include anything that would deprive person of fair trial, unwarrented invasion personal privacy, disclose confidential sources, disclose investigative techniques, endanger life or safety of anyone.

At the state level, major exemptions are similar. Although there is no national security exemption, there are law enforcement, personnel, and pending litigation exemptions, as well as property purchase or sale discussions, information about toxic waste, and over 100 loopholes in the law.

For example in Virginia, before the law was overhauled in 2000, routine requests for records in all kinds of areas were being denied. A state survey found that requests for information about incidents involving police were appropriately answered by only 14 percent of the state’s police jurisdictions.  

Current events in FOIA law include:  

  • A 2013  Wisconsin lawsuit concerning secret emails from the governor’s staff directing political campaigning by state employees while on the payroll;

 

Radford University incident influences state law

In 1999, an incident at Radford University showed how far the practice of the law had strayed from its original intended purpose. State police turned down a Radford University student newspaper request for a copy of a report concerning a student who was run over by a police car following a series of reckless acts by a city policeman.  The office was attempting to stop a street party with his police car by charging it into the crowd.  Following the student’s injury, the city policeman drove his car up onto a nearby lawn and pretended to be choking on a pork rind.  The state police investigated, but an FOIA request for the state police report was denied.   

In turning down the request, the state police did not take note of the FOIA law section that said: “The affairs of government are not intended to be conducted in an atmosphere of secrecy …” and that the FOIA “shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government.”

Instead, the request was denied since  another section said that anyone involved in an accident, and his or her attorney or insurance company is allowed a copy of the accident report. Apparently the pretense was that this was an exclusive list. (This of course was so transparently absurd that the report was actually leaked by a high level  state police supervisor to student journalists, and it revealed the the driver of the police car was at fault for the accident).

The state legislature took a dim  view of all this, along with similar incidents in other locations.  A sweeping review of Va. FOIA law was undertaken in 2000, supported not only by the Virginia Press Association but also the Society of Professional Journalists and the Virginia Library Association. The legislation  established a  Virginia Freedom of Information Council which can judge appeals and requests concerning FOIA problems.  The council has also pointed out that all state agencies have been required to post FOIA  information on their web sites — a requirement that many agencies seem not to have taken seriously. 

Making an FOIA request

Sometimes not only is an FOIA useful, it also be necessary.  Many state agencies require FOIA process for the simplest kinds of information in order to make it appear that the agency was not being too willing to disclose information to the public.

The process is simple: you write a letter or email stating you wish to see certain records and have a right to do that under FOIA. A member of the press may also include a request for a waiver of costs because the information will be publicly disseminated.  The state agency usually has 10 days to respond (a federal agency 20 days). 

The response is usually just to say that they have received your FOIA request and will do their best to find the documents you asked for, but it will probably take a long time.  They’ll call you when they find them.

Other problems include very long lead times for reporting and very heavy editing, such as in the example from the OSM above.  In 1996, Congress passed Electronic FOIA Act, requiring agencies to make decision about documents before request and publish some on line: also detailed indexes to make it easier to know what is held; and established a stricter timetable. 

More information about the FOIA is available from the Reporters Committee for Freedom of the Press web site. There is also an  RCFP comparison of state by state FOIA laws. 

Sunshine laws

Sunshine laws are similar to FOIA laws, but require that local, state or federal legislative or executive hearings take place in public buildings with adequate notification to the public. Executive sessions are possible under some circumstances (personnel, legal issues, for example) but all decisions must be made in public sessions.

Buckley Amendment
1974 — said colleges that dont keep records private may be ineligible for federal aid. This has been widely applied to crime and judicial boards on college campuses.

Bauer v. Kincaid, 1991, a federal appeals court said state laws requiring open records overrides federal law. Still, the debate over campus privacy versus freedom of information is not settled.