A chat with our talented FOIA fighter

Gordon Witkin
Updated

The Center for Public Integrity is proud to have been cited in a recent survey as among the news media leaders in its use of Freedom of Information Act litigation to obtain data from government agencies.

In fact, the Center ranked second among outlets in its filing of FOIA suits since 2000, with a total of 17, according to recently updated research by the FOIA Project, a new initiative from the Transactional Records Research Clearinghouse at Syracuse University. That put the Center behind only the New York Times.

The FOIA Project report said the Center was among the "small number of clearly dominant players" in filing FOIA suits." The report went on to say that the Center "has been a notable pioneer in creating and sustaining a new model for the delivery of investigative reporting," adding that the Center "also clearly demonstrated that it is not necessary to be a large legacy news organization to sustain an active profile in litigating FOIA matters."

Much of the credit for the Center's FOIA work belongs to our research editor, Peter Newbatt Smith. Smith is a man of many hats at the Center; he meticulously fact-checks every major story produced by our journalists, but as an attorney, he is also the Center's indispensible resource on all matters FOIA. Smith receive his bachelor's degree in medieval Europen history from Harvard University, and obtained his law degree from American University. He joined the Center in 1999.

Smith is planning to file another FOIA lawsuit this week. But he found time recently to discuss the FOIA process.

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The Freedom of Information process begins with a letter, right? Why does it become necessary to sue?

We bring a lawsuit either when it takes too long for a government agency to respond to our request, or when they do respond but withhold records that we believe should be disclosed.

Why has the Center pursued FOIA suits so vigorously? How does the Center differ from other organizations in that regard?

In one sense, we’ve been very restrained — our reporters have filed thousands of FOIA requests since 2000, and we’ve sued 17 times. But we use FOIA, and FOIA litigation, more than most other newsrooms do. Most small news organizations can’t afford to bring a lawsuit because they don’t have an attorney on staff. At a larger media company, the legal department is probably focused on other issues, including business operations and libel claims. At the Center, the larger part of my responsibilities is editorial, working with the Center’s reporters and editors on fact-checking our reports, but I’m given the support I need when I have to devote a chunk of time to a legal case. Apart from news organizations, of course, there are also several advocacy organizations with in-house lawyers who regularly file FOIA suits.

How long does the litigation process typically take, and how does it work?

Most of our lawsuits have lasted from several months up to a couple of years. After we file a lawsuit and serve process, a federal agency has 30 days to file a response with the court. After that, the assigned judge will set a schedule for the remainder of the case. Typically, that includes a deadline for the agency to finish processing the FOIA request. It’s often possible for the Center and the agency to reach a compromise and settle the case. If not, the agency files a “motion for summary judgment,” together with a written legal argument that attempts to demonstrate that the agency has produced all the records it is legally required to and is justified in withholding the ones it has not. I then file a “cross-motion,” arguing why the agency should release additional records or make fewer redactions. After one more round of written arguments from each side, the judge gets the case and prepares a written opinion that decides the issues based on the evidence and arguments.

What kinds of information has the Center gotten from FOIA suits that it couldn’t obtain elsewhere?

Some examples include records involving government contracts related to Iraq and Afghanistan, George W. Bush’s initiative to fight AIDS in foreign countries, and audits of the Medicare Advantage program.

For which Center stories/projects have FOIA litigation results proved essential?

I’d say that litigation has been critical in several projects that centered on the analysis of government data. For instance, through a settlement in 2010, we were able to obtain about two terabytes of Medicare claims data that we used in “Cracking the Codes” to show how some medical providers were inflating the bills they submitted to the federal government.

Which agencies have proven particularly difficult to deal with regarding FOIA requests?

The State Department stands out in that respect. For as long as I’ve been at the Center and involved in FOIA requests, State has been taking not weeks or months to respond to their average FOIA request, but years. That’s according to their own reports. In addition, they handle almost all FOIA requests through one central office, so there aren’t some divisions that do better and some worse — the delays are uniformly terrible.

President Obama talked a strong game about transparency and freedom-of-information, but what was the reality?

Obama and his first attorney general, Eric Holder, announced some changes that were supposed to direct federal agencies to withhold or redact less information in response to FOIA requests, but those were relatively small changes at the margins. The available statistics suggest that FOIA requests still get denied at the same or higher rates and that response times are still unacceptably long. The most significant improvement I’ve seen, which was beginning to occur before the Obama administration but has continued, is that most agencies have become more professional and organized in the way they respond to FOIA requests. When you try to ask them, “When will you have a response to my FOIA request?” you can usually get a response by phone or email. But the answer is likely to be, “Another month or two.”

Do we have any signals/indications about President-elect Trump’s policies in this regard?

I’m not aware that President-elect Trump has said anything specifically about FOIA. It’s not clear how much practical effect the president’s attitude has on how FOIA is implemented, but the signals Trump has sent by refusing to disclose his personal tax returns aren’t encouraging. At his recent news conference, he said, “You know, the only one that cares about my tax returns are the reporters, okay? … I don’t think [the American people] care at all.”

Given your depth of experience in these matters, what quick tips would you give to journalists pursuing FOIA requests?

As best you can, try to describe the records you’re looking for in a way that will make sense to the agency employee searching for them. So mention the name the agency uses for the program you’re looking into, and give them a case number or other identifying number if you have it. Remember that FOIA doesn’t require government employees to answer the questions you have; it only requires them to give you copies of the records that you specify.

Another tip: When you know of one specific record, and you also want other records like it, give a description of both. For example, “Inspector General’s Report #16-301, dated March 2016, and all other Inspector General reports from January 2016 to the present concerning allegations of sexual harassment by agency employees.”

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Copyright 2017 The Center for Public Integrity. This story was published by The Center for Public Integrity, a nonprofit, nonpartisan investigative news organization in Washington, D.C.