FOIA: USELESS FOR JOURNALISTS?

By William Fisher

When Lyndon B. Johnson signed the Freedom of Information Act in 1966, he did so kicking and screaming. He wasn’t so much afraid of ‘the people’ getting access to government documents – he doubted they would be interested. He was afraid of the press.

That was back in the days when citizen interest groups were far less numerous and far less powerful. Today, these are the groups that file most of the FOIA requests, while an increasing number of journalists and news organizations find the law virtually useless.

For the media, the main reason is time. It can easily take up to three years to obtain documents through a FOIA request. Frequently, government agencies that hold requested documents claim an exemption or simply refuse to produce them. At that point, the case moves to the courts, where information-seekers can sue the government.

For journalists, the story is usually dead by the time documents appear. That’s one of the reasons so many published quotes these days are attributed to unnamed officials who speak “on condition of anonymity”. Journalists cultivate their own sources. And the need for speed has only been exacerbated by the 24/7-news cycle.

Anonymous sourcing is nothing new (remember ‘Deep Throat’?). But the practice has proliferated exponentially over the past decade.

One reason is the ‘PR-izing’ of government. The number of so-called public affairs officers in the public sector has increased dramatically since the Clinton Administration, and even more under President Bush. Both used pre-packaged ‘news’ to get their messages out, but our current president’s media machine has brought this dubious artform to a new level altogether. Even though the Government Accountability Office has labeled the practice as illegal ‘covert propaganda’, President Bush is relying on other legal opinion and shows no inclination to desist.

But for advocacy groups like the American Civil Liberties Union or People for the American Way or hundreds of other similar organizations, FOIA still represents arguably their only avenue toward disclosure of ‘un-PR-ized’ original information.

But the process can be expensive. The Department of Homeland Security recently told People for the American Way it would cost close to $400,000 for them to compile the requested documents.

The obsessive secrecy of the Bush Administration has triggered a fourfold increase in the numbers of documents categorized as ‘classified’ – and a corresponding spike in FOIA requests.

Most of what we know about the abuses perpetrated by U.S. military personnel at Abu Ghraib, Guantanamo Bay, and other numerous locations, has come from unclassified but ‘sensitive’ documents obtained by advocacy groups after FOIA requests. Likewise, whistleblowers, lobbyists, drug companies, detainee renderers, and so forth.

Thus, the organizations that have endured the delays and spent the considerable sums involved in requesting documents and then going to court to get them have themselves become prime news sources for journalists. The interest of the media is to get the news out right away. The interest of the Bush Administration is to stop disclosure altogether or delay it as long as possible.

The current government’s vale of secrecy also generated a virtual cottage industry of ‘open-the-government’ programs, such as the Government Secrecy project of the American Federation of Scientists, OMB (Office of Management and Budget) Watch, and many others. And these too have become news sources for journalists.

Among news organizations, there have been some FOIA exceptions. For example, The Associated Press filed a FOIA request and subsequent lawsuit to compel disclosure of President Bush's Vietnam-era Air National Guard service. Documents made public by the Pentagon in response to a 2003 FOIA request from the St. Petersburg Times, indicate that since the 1991 Persian Gulf War, thousands of pounds of explosives, hundreds of mines, mortars, grenades and firearms and dozens of rockets and artillery rounds have been lost or stolen from U.S. stockpiles and have possibly been misused. And there have been others.

But even if more news organizations were prepared to dig into their deep pockets to file FOIA requests, many consider it to be a fruitless exercise. Given the time it takes them to actually obtain government documents, the story they originally wanted to report goes un-reported – or is reported citing anonymous sources -- and the story becomes the struggle for disclosure.

Given the Bush Administration’s penchant for ‘staying on message’, we shouldn’t expect this media dilemma to go away any time soon.