The United States has slipped so far with respect to transparency that some open-government groups now rank it behind Yemen, Kyrgyzstan and Liberia. Today, the Freedom of Information Act – our country’s signature right-to-information law – is alarmingly dysfunctional.
It is impeding the ability of the press to do its job.
Consider what happened to Sharyl Attkisson, a journalist with five Emmy Awards, when she asked the Centers for Disease Control and Prevention last October for records related to a virus that had possibly killed 14 children and paralyzed another 115. The CDC still hasn’t turned over a single document in response. This isn’t the first such experience for Attkisson. She recently told a congressional committee that it took the Department of Defense 10 years to respond to a request she made in 2003.
It is a sad turn of events that FOIA has become so unhelpful to journalists. The newspaper industry played a leading role in pushing the law through Congress in 1966, working closely with John E. Moss, a congressman from Sacramento. When President Gerald Ford vetoed post-Watergate amendments aimed at strengthening the law, newspaper editorials helped spark a congressional override.
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But today, like many other citizens who make requests under FOIA – which allows any person to request federal agency records for any reason – journalists face backlogs, excuses for withholding, and delays.
“Non-responsiveness is the norm,” Karen Kaiser, general counsel of The Associated Press, told a Senate panel in May.
This stonewalling comes at a time when the news business is ill-equipped to fight it. It has fewer resources to engage in battles over information and is trigger-shy about suing.
Beyond economic pressure, journalists have little patience for bureaucracy and delays. And their bosses are no different. Media companies are investing less in the type of costly and time-consuming investigative reporting that may rely on government records and more in determining how to make the garden-variety news story go viral. Federal agency officials understand these economic and business realities, and they have likely been emboldened to reject, delay or otherwise fail to fully comply with media FOIA requests.
Last year, the FOIA Improvement Act died after the House of Representatives failed to vote on it before adjourning for the year. The bill, which enjoyed widespread support, would have codified a directive by President Barack Obama to agencies that they administer FOIA with a presumption of openness. This year, reform legislation is again pending, and Congress should take action.
But beyond reform, agencies could do a far better job of enforcing FOIA as it is written. This alone could be of great help to news organizations watch-dogging government. Notably, agencies need to faithfully adhere to a provision of FOIA that allows journalists’ requests to go to the front of the queue when there is an “urgency to inform the public.” As it stands, agencies reject these so-called “expedited processing” requests the vast majority of the time.
Journalists also can do their part to make FOIA more effective. While prolonged litigation can be costly, media companies still need to sue agencies that are wrongfully withholding records. Successful FOIA requesters often are able to recoup their legal fees, which can take some of the sting out of suing.
In an encouraging sign, online news sites have started to take on the FOIA enforcer role. BuzzFeed and ProPublica recently sued over access to records, and one journalist from Vice News has filed five FOIA lawsuits this year.
The United States should aspire to again be at the vanguard of right-to-information laws instead of deep in the scrum. We should not let journalists continue to be the victims of FOIA’s dysfunction. Journalists aren’t seeking government records for their own edification, but all of ours. When the government fails to respond fully and promptly to FOIA requests, we are all the worse for it.
Erin Carroll is an associate professor of legal research and writing at Georgetown University Law Center.