Originally published in California Publisher, Fall 2016.
Government records are journalist Jason Leopold’s most important sources, and the federal Freedom of Information Act is his most important tool. He hopes new amendments to FOIA, passed by Congress and signed by President Barack Obama this summer, will improve government transparency.
“I think in some respects the revisions are pretty significant,” said Leopold, senior investigative reporter for Vice News based in Los Angeles and one of the most prolific FOIA journalists working in the country today.
Leopold, 47, has broken many national stories as a result of FOIA requests and follow-ups. He won the 2015 FOI Award from Investigative Reporters and Editors for a series about the CIA’s spying on U.S. Senate investigators.
Other FOIA scoops include the release of a white paper detailing the government’s targeting killings of citizens abroad and an internal army report showing procedure breakdowns related to a detainee’s death at Guantanamo Bay.
Leopold has filed at least 700 FOIA requests while working at Vice News since 2014. In all, he estimates he has 2,000 requests awaiting responses, dating back eight years. He works with D.C.-based FOIA attorney Jeffrey Light to litigate denials or delays for requests with the potential of producing newsworthy information.
“There are times I’ll file 10 requests per week, but I try to average 10 per month,” Leopold said. “I go with the news cycle. I filed hundreds of requests with the NSA after the Snowden disclosures to get more insight into what takes place at that agency.”
One government employee annoyed with Leopold’s requests called him an “FOIA terrorist,” a title Leopold wears as a badge of honor. One agency offered to give Leopold records if he promised to never file an FOIA request again.
Leopold was among transparency advocates who pushed Congress to pass the FOIA Improvement Act of 2016, the most significant amendment to FOIA in a decade.
The Freedom of Information Act turned 50 years old on July 1, 2016; it was signed into law begrudgingly by President Lyndon B. Johnson in 1966.
The general idea behind FOIA — and its counterparts in state laws — is that the public has a right to know what its government is doing.
“The First Amendment might be the single most definitive indicator of the type of democratic republic established in the years following the American Revolution,” writes W. Wat Hopkins, a communications professor at Virginia Tech and editor of Communications Law and Policy, which recently devoted an issue to the problems with FOIA.
“Key to the proper working of that democratic republic is the notion that speech of self-governing importance is most effective when the populace has access to information about how the governing occurs,” Hopkins wrote. “That’s why the federal Freedom of Information Act … is important.”
While millions of government records have been disclosed annually under FOIA — and more than 700,000 requests were filed in 2015 — access problems abound, including long delays, high costs, denials and redactions, to name a few.
Navigating the labyrinth from request to response can be daunting. This fall, the Reporters Committee for Freedom of the Press and other groups launched the “FOIA Wiki,” an online tool to help journalists and citizens learn the nuances the law (at www.foia.wiki).
For years, transparency advocates have lobbied for legislative reforms to address myriad access problems.
In 2008, President Obama sparked hope for reform when he signed a memorandum on his first day as president calling on government agencies to “usher in a new era of open government.”
Ironically, Leopold and others used FOIA to unearth documents showing that federal agencies, including the Justice Department, opposed efforts in 2014 and 2015 to amend FOIA to encourage more disclosure.
The 2016 revisions codify Obama’s call for openness into the statute. They also require agencies to make more disclosures electronically and create a central online request portal. They limit fees when an agency doesn’t respond in time. And they open up records involving internal agency deliberations after 25 years, a win for historians.
Leopold is cautiously optimistic about the effects of the amendments.
“The presumption of transparency codified as the law of the land is a big deal,” Leopold said. “It remains to be seen how these government agencies will carry that out. Right now, it’s just on paper. No one has seen the impact of the new law yet.”
Some experts think the amendments are unlikely to address longstanding problems.
“The law is broken,” David Cuillier, chair of the Society of Professional Journalists’ Freedom of Information Committee and director of the University of Arizona School of Journalism, told the Senate Judiciary Committee in July.
Cuillier told lawmakers the new revisions are a step forward, but “much, much more work is needed” for FOIA to work as it was intended.
“I hear from journalists and citizens nearly daily about their problems in maneuvering an intimidating system fraught with delays, confusion and excessive fees that often result in no records or pages delivered in unusable formats blacked out entirely or in part,” Cuillier testified. “What we have created over the past 50 years in our nation’s governments — at all levels — is a growing culture of secrecy.”
Cuillier said data showed requests were being denied at rates significantly higher than in the past, and the United States was falling behind on access indexes internationally.
“Journalists are merely proxies for the public,” Cuillier said. “This is about our citizenry and the very nature of what we aspire to be as a nation. If we do not act now I fear the trend toward secrecy will continue, and this country will look very different in the next 50 years.”
Cuillier offered the Judiciary Committee five additional reforms, including FOIA training for all government employees, enforcement mechanisms including attorney fees and fines for arbitrary and capricious denials, streamlined processes that increase fees for commercial requesters and speed responses for non-commercial requests, more proactive electronic disclosures, and reigning in statutory exemptions and over-classification.
Leopold also knows firsthand the problems that remain. For example, Leopold recently checked in with the National Security Agency about a request he filed a year ago. The agency told him they expected to respond to the request in December 2019.
“Three years from now, that will be a little old and I will probably have long moved on from the story I’m looking at,” Leopold said. “The problem is, I’m sympathetic because they have a massive backlog. The length of time from request to production of documents in many cases can take years.”
Still, Leopold persists. He chases the journalistic scoop with an obsession with FOIA that has earned him distinction as a journalist — and has also given him professional redemption. In his autobiography, “News Junkie,” he recounts past personal and professional screw-ups, including publishing dubious stories based on anonymous sources that could have ended his journalism career.
For Leopold, the truth these days can be found in mining government documents using FOIA, despite its imperfections and no matter how long it takes.
Jason M. Shepard, Ph.D., is chair of the Department of Communications at California State University, Fullerton. His primary research expertise is in media law, and he teaches courses in journalism, and media law, history and ethics. Contact him at email@example.com or on Twitter at @jasonmshepard.