DoJ Ignores FOIA Requirements and Congressional Intent, Continues to Deny Fee Waivers to Bloggers

Posted on February 12, 2013 by

by Matthew L. Schafer

The Department of Justice is refusing to follow its own interpretation of the Freedom of Information Act (“FOIA”) by declining to grant fee waiver requests to independent journalists and bloggers.  This comes despite Congress’s intent to make such fee waivers available to journalists who do not fit neatly into the traditional definition of a journalist.

In 1966, Congress passed the FOIA in order to give citizens a right of access to information about how their government works or, for that matter, does not work.

As a Senate committee report on the FOIA said, “The committee feels that [the FOIA] would establish a much-needed policy of disclosure . . . .  A government by secrecy benefits no one.  It injures the people it seeks to serve . . . .  It breeds mistrust, dampens the fervor of citizens, and mocks their loyalty.”

On signing the bill into law, President Lyndon Johnson agreed, at least in writing, with the Senate committee, writing, “This legislation 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.  No one should be able to pull curtains of secrecy around decisions which can be revealed without injury to the public interest.”

Since its passage in 1966, the FOIA “has become a cornerstone of American democracy, making it possible for Americans to find out what their government is doing and to hold it accountable for its actions.”

Unfortunately, many think that the FOIA is broken.  These opinions spring from a variety of perceived deficiencies.  One of the most glaring deficiencies, however, comes to the fees that agencies charge citizens who request information.

Normally, agencies charge requesters for costs of searching and duplicating documents.  These costs can be in the hundreds and thousands of dollars.  Because Congress was concerned that these costs may dissuade citizens from taking advantage of the FOIA, it decided to provide certain fee waivers.  Thus, in 1986, Congress amended the FOIA, directing agencies to waive fees for a search of responsive documents when “a representative of the news media” makes a request.

Senator Patrick Leahy, who along with a colleague in 1986, offered the amendment modifying fee waivers, explained that “[i]t is critical that the phrase ‘representative of the news media’ be broadly interpreted if the act is to work as expected.”  Indeed, with the rise of telecommunications and digital communications in the 1980s, Congress was concerned that agencies would deny fee waivers to new forms of media.

As the Senator explicitly acknowledged, “As new technologies expand, there are new methods of communications which disseminate information to people through media other than traditional print or broadcast media, and these entities should be considered as ‘representatives of the news media.”

Unfortunately, the 1986 amendments to the FOIA did not define the term of “representative of the news media.”  That task was left to the Office of Management and Budget (“OMB”).  The OMB adopted a relatively restrictive definition of “representative of the news media”: “The term ‘representative of the news media’ refers to any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public.”

This definition effectively made it impossible for independent journalists to receive fee waivers, leaving them subject to the prohibitive fees that the amendments intend to assuage, because they did not work “for an entity.”

Realizing this, in 2007, Congress again attempted to make fee waivers available to more people under the “representative of the news media” with the passage of the Open Government Act.  That Act did not adopt the OMB’s definition of “representative of the news media” as “any person actively gathering news for an entity.”

Instead, it changed the language to read: “In this clause, the term ‘a representative of the news media’ means any person or entity that gathers information.”  No longer then was a representative of the news media required to work for an entity; instead, any person or entity could qualify, which made fee waivers available to independent journalists.

At the time, the Act’s sponsor, Senator Leahy explained on the floor, “The bill ensures that Federal agencies will not automatically exclude Internet blogs and other Web-based forms of media when deciding whether to waive FOIA fees.”

Senator Cornyn, a co-sponsor of the Act, felt the same way: “[The Act] grants the same privileged FOIA fee status currently enjoyed by traditional media outlets to bloggers and others who publish reports on the Internet.”

The DoJ protested the 2007 changes.  In a letter to Senator Leahy, then Acting Assistant Attorney General Richard A. Hertling acknowledged that “Section 3 of the legislation, titled ‘Protection of Fee Status for News Media,’ expands the definition of ‘representative of the news media.’“

Mr. Hertling also admitted that the Act’s amendments were intended to extend fee waivers to bloggers: “Section 3 of the legislation amends subclause (II) so that an agency ‘may not deny [to a representative of the news media] status solely on the basis of the absence of institutional associations of the requester, but shall consider the prior publication history of the requester’ including Internet publications.”

Guided by an understanding of the plain language of the amended FOIA, scholars agreed with the DoJ’s assessment of the changes to FOIA: “The Act opens the definition of news media to apply to bloggers and [I]nternet journalists who are not associated with a media institution.”

That was then.  Since the Act was passed, at least one DoJ division has asserted that the change of the law actually affected no change to the law.  In a recent request by Lippmann Would Roll for documents relating to subpoenas against the news media, the Civil Rights Division at the DoJ has refused to grant a fee waiver for a search of documents.

In the denial of fee waivers, the Civil Rights Division wrote that “current case law has not recognized blogs to constitute news media for purposes of a fee assessment.”  And, for that reason, it did not grant the fee waiver request.  An appeal is currently being drafted by LWR.

This denial is in direct conflict with the intent of Congress, and, more importantly, the plain language of the FOIA.  As the Senate committee report on the FOIA amendments explained, “[The amendments] make clear that independent journalists are not barred from obtaining fee waivers solely because they lack an institutional affiliation with a recognized news media entity.”

Moreover, the denial conflicts with the Office of the Attorney General’s views of fee waiver requests by bloggers.  At least in the case of LWR, the Office of the Attorney General agreed to grant a fee waiver to LWR in the past under the same circumstances as the request to the Civil Rights Division.  The Civil Rights Division’s denial of these fees, then, are even inconsistent with the apparent policy of the Office of the Attorney General.

All that should matter when it comes to requests for fee waivers under the “representative of the news media” waiver is whether the requester is actually gathering and disseminating news related to the requests.  Indeed, the history of waivers is one the bends toward a broad view on interpreting who qualifies as a representative of the news media.

DoJ divisions, as well as other government agencies, should begin to grant fee waivers consistent with the intent of Congress.  If they do not, they are essentially gutting a valuable provision of the FOIA that is aimed at making more information about the government available to the new breed of journalists to share with citizens around the country.

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The Case of the Misleading Wired Headline: The Importance of Legal Reporting Getting It Right

Posted on January 30, 2013 by

The First Amendment on the wall of the Newseum in Washington, D.C.  flickr/baekken

by Matthew L. Schafer

Understandably, most people are not acquainted with ins and outs of our legal system except for the most basic concepts.  For that reason, legal reporting, like other types of specialized reporting, must be undertaken carefully with an eye toward informing readers as to the facts and context, but, at the same time, not bogging readers down with unnecessary minutiae.  Unfortunately, and all too often, reporters fail at this task.

“Legal journalism is foundering,” the American Bar Association wrote in the late 1990′s.  “And the consequences are worse for the legal profession than for journalism.”

The ABA is not alone in its assessment of the state of legal journalism.  Others, from lawyers to judges to interested parties, often complain that legal journalists are under-informed or focus too much on the horse race of a trial without explaining to the audience the process itself.

David Shaw, a former giant at the Los Angeles Times, who was often critical of the media, once said that legal reporters often “make serious mistakes, miss good stories, overlook important legal issues, misinterpret major court decisions and fail to follow up their stories.”

Misstatements by journalists can be especially dangerous in today’s media environment.  Often news outlets – stressed for resources – will simply rewrite another news outlet’s story that contained a factual error.  In this environment, factual errors can spread like wildfire.

One recent example is especially telling: Recently, the Fourth Circuit Court of Appeals affirmed a district court judge’s decision to deny a motion to dismiss as to a man’s First Amendment claim.

The motion to dismiss came in a case where a man, shortly before entering a body scanner at an airport, removed his sweatpants (revealing gym shorts) and his t-shirt to reveal the Fourth Amendment written on his chest.  The man believed the scanners violated his constitutional rights.  Because of his actions, he was detained and later arrested.  In his lawsuit, the man requested $250,000 in damages from TSA agents and airport police officers, among others, for his detention and subsequent arrest.

The district court dismissed all claims at issue (originally the man claimed a violation of the First, Fourth, and Fourteenth Amendments) against the police officers and two other federal defendants, but refused to dismiss the First Amendment claims against the TSA agents.

The remaining federal defendants appealed the decision that could have potentially kept them on the hook for damages, arguing that the lower court erred because, among other things, “Mr. Tobey did not allege a facially valid First Amendment claim . . . .”

In rejecting the federal defendants’ appeal, the Fourth Circuit explained, “While the sensitive nature of airport security weighs heavily on the Court, protest against governmental policies goes directly to the heart of the First Amendment.”

The coverage of this case has been relatively light.  Only a dozen or so outlets wrote a story about it.  Unfortunately, some of the outlets that covered the case got the story wrong – or at the very least misled readers.

Wired reporter David Kravets was one of the first reporters to cover the Court’s decision.  He titled his article, “Man With 4th Amendment Written on Chest Wins Trial Over Airport Arrest.”

The problem with this headline is this: no trial has been held yet so the man cannot have won his trial.

The problem with this headline is this: no trial has been held yet so the man cannot have won his trial.  As mentioned above, the case was before the Fourth Circuit on a motion to dismiss.  A motion to dismiss is, by definition, a pre-trial motion.  It is only after a motion to dismiss, in most cases, that a case will proceed to trial.

Despite this, Kravets begins his article writing, “A Virginia man who wrote an abbreviated version of the Fourth Amendment on his body and stripped to his shorts at an airport security screening area won a trial Friday in his lawsuit seeking $250,000 in damages for being detained on a disorderly conduct charge.”

Of course, this language would lead most readers to believe that this Virginia man is $250,000 richer.  He is not though – at least, not yet.

A few things could actually happen now.  The government could ask for a rehearing in front of the entire Fourth Circuit or the Fourth Circuit could order one.  These are, however, uncommon.  More likely, the case could go back to trial court for discovery and a motion for summary judgment.  Only after surviving this likely motion from TSA agents will the case continue to trial.

In Kravets’ defense, he would later go on to write that the case would be “sen[t] . . . to trial, unless there’s a settlement.”  This important information, however, is found four paragraphs into the story and only after the misleading information.

The other news outlets that covered the story after Kravets’ article illustrate how easily journalists can spread errors and misinformation through linking back to an original story with an error like the one in Kravets’ article.

For example, one outlet, which cited to the Kravets’ Wired article, explained in its own article that “[a] Virginia man won a trial Friday in his lawsuit seeking $250,000 in damages for being detained on a disorderly conduct charge.”

Another, also citing Kravets’ article, titled its article, “TSA Protester With 4th Amendment Written on Chest Wins Trial Over Airport Arrest.”

And yet another citing Kravets explained, “Man Detained by TSA for Having 4th Amendment Written on Naked Chest Wins Case.”

All of these sentences leave the impression that the man has actually won his case.  Of course, he has not.  They are plainly inaccurate.

As the Fourth Circuit said, “The question of whether Mr. Tobey’s conduct was so ‘bizarre’ and ‘disruptive’ that Appellants’ reaction was reasonable or whether Mr. Tobey was targeted because of the words on his chest cannot be decided [on a motion to dismiss].”  The Court would  go on to suggest the the federal defendants could raise alternative arguments further down the procedural road or challenge the man’s view of the facts.

Luckily other news outlets fared better.  An Australian news outlet explained, “A PASSENGER who was arrested after partially undressing as part of an airport protest is a step closer to winning a $250,000 lawsuit over the incident.”  (This article did make a mistake, however, suggesting that the lower court had dismissed all of the man’s claims.)

Words mean something and failing to use the right words in the right places can leave readers with the wrong idea.

A different news outlet said it this way: “Airport Protest, First Amendment Lawsuit Moves Forward.”  This article does not appear to have cited Kravets Wired article either.

Finally, Business Insider, which cited Kravets, was nonetheless more clear about the proceeding.  It did not say that the man won his lawsuit.  Instead, the headline read: “Guy’s Fight With The TSA Over ‘Magic-Marker Protest’ Will Likely Go To Trial.”

The author of this article contacted Kravets about correcting his error.  I wrote, in part, “Just because the appellants lost their motion [to dismiss] does not mean that the arrested man won his trial.  They will still have to go through discovery, a motion for summary judgment, and only then to trial. . . . Just thought you may want to add this clarification.”

Kravets refused to make the correction.  In a short email, he instead argued that his article was accurate.  If something can be both accurate and misleading then perhaps Kravets is right, but this is not the case.

Kravets refused to make the correction.  In a short email, he instead argued that his article was accurate.  If something can be both accurate and misleading then perhaps Kravets is right, but this is not the case.

As explained, even though Kravets’ article goes on to clarify one potential result of the decision, his headline and his lede are both inaccurate and deceptive.  This is especially the case when readers only read the title of an article or the first few paragraphs, which tends to happen.  As one report found, “A full 44 percent of visitors to Google News scan headlines without accessing newspapers’ individual sites.”  (Wired is available via Google News.)

There should be little excuse for refusing to correct such a glaring error.  Frankly, it is irresponsible.  Now, because Kravets has refused, both readers and other reporters will continue to fall victim to inartful and inaccurate reporting.  Hopefully, Wired corrects the misleading headline and lede before more readers and journalists are led to believe that this man won his trial.

Legal reporting is tricky business.  It takes time and an understanding of the legal system.  It requires reporters to make judgment calls about how much information is too much information.  More to the point, it demands that reporters use the right words.  Words mean something and failing to use the right words in the right places can leave readers with the wrong idea.  Unfortunately, the wrong judgment calls were made in this case.

Edited for typographical errors at 7:40 PM, 1/30/2013 and for a more serious omission at 12:35 AM, 1/31/2013, where the article originally omitted the “court” from the following sentence: “More likely, the case could go back to trial court for discovery and a motion for summary judgment.”  As always, I regret these errors and omissions.

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Broken Promises: A Lack of Executive Branch Transparency in Obama’s First Term

Posted on January 22, 2013 by

by Matthew L. Schafer

President Obama’s Administration has prosecuted more government whistleblowers than all other presidents combined and has subpoenaed nearly as many journalists as President Bush did during his first term.  Some also suggest that agencies under Obama have released fewer government documents than Bush’s Administration did.  In light of these precedents, President Obama’s open government supporters have recasted their roles as adversarial ones.

“I’ll make our government open and transparent, so that anyone can ensure that our business is the people’s business,” Obama said on September 22, 2008 during the 2008 campaign.  “No more secrecy.”

Obama seemingly kept this promise.  Shortly after being sworn in in 2009, Obama signed two executive orders aimed at increasing government transparency.  One order was issued to emphasize that requests for information about executive agencies’ activities should be met with a presumption that the information ought to be released.  Another was issued to limit former presidents’ ability to invoke executive privileges.

At the time, the Sunlight Foundation, a non-profit dedicated to an open and transparent government, called the signings “extremely heartening.”

“While we don’t know yet if he will be signing any [more] executive orders, rest assured that if he does, none of them will be about making government more open and less corrupt,” the Sunlight Foundation said today.

The Sunlight Foundation is not the only transparency advocate that has criticized the Obama Administration’s approach to openness in government.  In the context of prosecuting whistleblowers for disclosing classified information, the National Press Club called the Administration’s approach a “war on leaks.”  Mother Jones, a liberal publication, said Obama was waging war against whistleblowers.  And, POLITICO explained that the Obama Administration “unleashed an unprecedented wave of prosecutions over leaks.”

However the Administration’s approach to maintaining secrecy is styled, it is clear that it has embraced the Espionage Act to punish whistleblowers more than other administrations.  The Act is a hundred-year-old law passed during World War I that allows the federal government to prosecute anyone who divulges classified information under certain circumstances.  Originally, it carried the Orwellian title the Defense of Secrets Act.

Over the past four years, the Obama Administration has prosecuted seven whistleblowers under the Espionage Act. Before the Administration’s seven prosecutions, the Act had only been invoked three times since 1917.

Over the past four years, the Obama Administration has prosecuted seven whistleblowers under the Espionage Act.  Before the Administration’s seven prosecutions, the Act had only been invoked three times since 1917.  While some of the seven whistleblowers charged are no longer being prosecuted, others have been sentenced to years in prison.

Among those charged is John Kiriakou, a CIA analyst, who detailed the CIA’s use of waterboarding against suspected terrorists.  The criminal complaint against Kiriakou argued that he unlawfully disclosed information about the “Central Intelligence Agency’s Rendition, Detention, and Interrogation Program.”

On August 6, 2012, the Obama Administration filed a criminal complaint against James F. Hitselberger, a contract translator who allegedly disclosed secret documents to the Hoover Institution at Stanford University.  This comes despite the government conceding that Hitselberger “has no history of violence and did not disseminate the classified information to a ‘foreign power.’”

The Fourth Circuit is currently considering another Espionage Act case.  In that case, Jeffrey Sterling, a former CIA analyst, allegedly leaked documents to James Risen, a New York Times reporter.  The information leaked detailed a botched U.S. attempt to sabotage Iranian nuclear operations.  The Fourth Circuit will decide whether the government can force Risen to name his source at trial.

It is impossible to say how much less transparent the Obama Administration has been than previous Administrations, if at all. If nothing else, however, the Obama Administration’s promise to increase transparency has made the lack of transparency all the more stark.

Risen is not alone.  Under the Obama Administration, several journalists have been subpoenaed.  These subpoenas either ask for unpublished notes from journalists or the names of journalists’ sources.  While it is impossible to tell exactly how many subpoenas are issued against journalists, the numbers appear to be on the rise.

“An unusually large number of subpoenas seeking the names of anonymous sources has been issued by federal courts in a remarkably short period of time to a variety of media organizations and the journalists they employ,” one prominent First Amendment lawyer told the Senate in 2005.

At the federal level, all subpoenas against journalists must be approved by the Attorney General, according to Department of Justice regulations.  Under those regulations, the government must first make “[a]ll reasonable attempts . . . to obtain information from alternative sources before considering issuing a subpoena to a member of the news media.”

Lippmann Would Roll recently requested information from the Offices of the Attorney General, Deputy Attorney General, and Associate Attorney General regarding the number of subpoenas made under the regulation.  According to the Department’s response to LWR’s Freedom of Information Act (“FOIA”) request, the Department of Justice  considered 54 subpoena requests and approved 43 in the past eleven years.

According to the Department, subpoenas against the media were sought for cases relating to “murder, terrorism, trafficking in narcotics, bribery, leaks of sensitive information, public corruption, insider trading, gang activity, jury tampering, bomb threats and other serious crimes.”

Under a request to the Criminal Division of the Department, the Reporters Committee for Freedom of the Press discovered that 89 subpoenas were approved by the Attorney General for use by the Criminal Division over a similar time span.

The disparity between the two FOIA requests is most likely attributed to “the Offices of the Attorney General, Deputy Attorney General and Associate Attorney General . . . not maintain[ing] all media subpoena files.”  As such, more subpoenas may be on file with the Criminal Division, Civil Rights Division, National Security Division, the Tax Division, or any other division of the Department.

Unfortunately, the Department invoked three exemptions to FOIA in responding to LWR’s request, which allowed it to deny releasing the 382 documents it had relating to the enforcement of the Department’s regulation relating to subpoenaing journalists.  Appealing these types of denials to a FOIA request is very difficult.

The total denial of this FOIA request may evidence the Obama Administration’s approach to FOIA requests in general – deny them.  This, of course, runs counter to the presumption of disclosure under FOIA, which was emphasized in Obama’s first executive order.  Anecdotal evidence aside, however, it is still unclear whether the Administration is statistically less likely to release documents than other administrations.

In 2012, for example, the Department of Justice under Obama either fully or partial granted 49% of the FOIA requests it received.  At the same point in 2004, the Bush Administration fully or partially granted 56% of the FOIA requests made to the Department.  In 2010 and 2011, the Department complied with more than 55% of requests either in whole or in part.

It is impossible to say how much less transparent the Obama Administration has been than previous Administrations, if at all.  If nothing else, however, the Obama Administration’s promise to increase transparency has made the lack of transparency all the more stark.  Looking at the Administration’s record thus far in the cases of prosecuting whistleblowers, subpoenaing journalists, and granting FOIA requests there is little reason to expect increased transparency in Obama’s second term.

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