Media Making Fewer Challenges to Government Secrecy in Federal Court

Syracuse, NY — A search by the Transactional Records Access Clearinghouse (TRAC) of thousands of federal court records indicates that media organizations as a whole appear to be challenging government secrecy at the federal level less often than in the past.

For example, during the last four years of the Bush administration (FY 2005 – 2008), news organizations filed a total of 22 lawsuits asking the federal courts to order the release of withheld government records under the Freedom of Information Act (FOIA). By contrast, during the first four years of the Obama administration (FY 2009 – 2012), that number had fallen to 18 FOIA court actions.

Figure 1. Freedom of Information Lawsuits Filed by the Media

The decline does not seem to be related to a drop-off in the problem of government secrecy because, as noted in a recent FOIA Project study, the total number of FOIA lawsuits brought by all kinds of plaintiffs during the Obama administration’s first term was higher than in the last term of President Bush. An alternative interpretation is an increasing interest by a range of different FOIA users and a decreasing interest by the news business.

Why?

A range of different reasons are offered for the decline. “Newsroom budgets have been slashed so it is no surprise that there is less time to pursue freedom of information litigation and less willingness to put time into stories where government may delay responding for long beyond the statutory limits,” said David Cay Johnston, now president of Investigative Reporters and Editors.

“I don’t think there is any question but news organizations are less zealous about FOIA matters than ever,” said David E. McCraw, vice president and assistant general counsel of The New York Times. But, after noting budget constraints and long court delays as being among the many causes for the decline, McCraw added that the growth in open government laws at both the federal and local level “have been successful in helping to foster a culture of greater openness.”

Thomas M. Susman, now director of the American Bar Association’s Government Affairs Office, has been a leading figure in the development of the FOIA since the late 1960s, when he was in the Justice Department’s Office of Legal Counsel and then became a staffer on the key Senate subcommittee on FOIA matters.

“For all of the economic and other reasons, I’m not surprised by the data suggesting that media interest in FOIA suits is declining,” Susman said. But because of the significant development of third party groups like the American Civil Liberties Union, Judicial Watch, Public Citizen Litigation Group, the Electronic Privacy Information Center and others who have aggressively sought critical information, he was not certain that the overall media coverage has been negatively affected. “The news services,” he said, “in some ways have outsourced their investigative work.”

The Media’s FOIA Record

TRAC compiled figures on the media’s FOIA record by harnessing the detailed information on FOIA lawsuits it has gathered and makes available on FOIAproject.org. Case details and documents are available for each lawsuit classified by the federal courts as a Freedom of Information Act suit and filed since October 1, 2004.

To locate suits filed by media organizations, TRAC reviewed the names of plaintiffs in each suit. A total of 40 lawsuits were identified as filed by media requestors during the eight year period of FY 2005 – 2012^[1]. See Table 1.

Except for an upward bump in filings during the year immediately following a presidential election, the number of lawsuits filed by the media appear quite modest as compared with the total of 2,562 FOIA lawsuits that were filed during this same period. These 40 media lawsuits represent only 1.6 percent of total filings. See Table 2.

A year-by-year examination is more revealing. During the last four years under President Bush, 1.8 percent of FOIA filings originated from the media. By comparison, during the first four years in President Obama’s first term, media cases slid to 1.4 percent of the total. In the last year of Mr. Obama’s first term only 3 FOIA matters — 0.9 percent of the total — were filed by news organizations.

Who Are the Filers?

A very small number of news organizations were responsible for filing these 40 cases during the two presidential terms. Dominating this list, with 12 filings, was The New York Times. Second with five filings was the Fox News Network. Third with four court complaints was the Associated Press. And with just two cases each were Bloomberg, The Los Angeles Times, the Reno Newspapers and the Washington Post.

Almost as noticeable as those on the list of most active media in this area were the well-known news groups who were absent. They included USA Today, the Wall Street Journal ^[note], McClatchy Newspapers, Reuters, Time, Newsweek, ABC, CBS and NBC. Also missing were new media organizations such as the Huffington Post.

There is some irony in the fact that among those leading the battle for the passage of the original Freedom of Information Act in 1966 and later amendments — against a reluctant executive branch — were organizations like the American Society of News Editors (ASNE) and the editorial boards of hundreds of news organizations.

Administrative Level FOIA

The court records show the media are not the most active when it comes to filing FOIA lawsuits. But news organizations are using the FOIA in other ways. Under the law, the process starts at the administrative level by making a written request asking for federal agency records. To address the wider issue of FOIA usage, one needs data on how often the media submit FOIA requests to federal agencies.

Information on the actual FOIA usage by the news organizations is hard to come by partly because of the sheer number of these requests: 640,000 in FY 2011 alone. Several years ago, however, the former Coalition of Journalists for Open Government — an alliance of more the 30 journalism-related organizations — made an attempt to answer a part of the question by analyzing 6,439 FOIA requests made to 11 cabinet-level departments and six large agencies in September of 2005. The coalition found that news organization accounted for only 6 percent of these requests.

For this study, a different approach was adopted that began with obtaining and studying the details of over 30,000 FOIA decisions that were made by a single agency — Immigration and Customs Enforcement (ICE) — from October 2010 to August of 2012. These records, based on the agency’s augmented FOIA logs, have just been added to FOIAproject.org. Since these decisions relate to requests that were sent to a single agency they obviously cannot be generalized to the whole government. Given that immigration matters have figured prominently in the news during this period, however, the results from this one agency may be illuminating.

TRAC analyzed a total of 32,913 FOIA matters handled by ICE in the study period. Of this total only 233 — less than one percent (0.7%) — could be identified as coming from the news media^[2]. At first glance this is an even lower proportion of media-related FOIA activities than was seen in the federal courts.

However, the requests that ICE receives are overwhelmingly dominated by individuals and their lawyers seeking agency files on that individual. Indeed, fully 31,368 out of the 32,913 FOIA requests acted upon by ICE involved an alien’s files (“A-Files”) and similar records on named individuals (see Table 4). Because of privacy protections, such files are not open to reporters. Thus it is not surprising that the media make few requests for the files on named individuals.

But, as suggested above, FOIA requests for information on matters other than individual files were much rarer: amounting to only 1,545 of the total. Thus, relative to this much smaller number, the total of 233 requests submitted by media organizations suggests the media during the past two years for this one agency were relatively active.

Media Topping the List

At total of 27 media organizations accounted for over two-thirds (160) of the 233 requests. Each of these had made two or more requests. The list of media organizations with multiple requests are shown in Table 5, where the method used in identifying these is also described.

Topping the list was the Associated Press with 23 requests. Next, with 17 each, were the Center for Investigative Reporting and the Houston Chronicle. Then came Muckrock Communications with 14 and SAE Productions with 9.

There was a much larger list of news organizations that accounted for the remaining third (73) of all media requests. Each of these had submitted a single request during this two-year period. Their names are listed in Table 6. While quite a number of national media are on these two lists, it is also interesting how many smaller papers and local TV stations are also represented.

In an interview, Ted Bridis, head of the AP’s investigative team, attributed the relatively large number of administrative requests aimed at ICE to a formal and informal effort by the organization to teach its reporters and editors how “to file them and how to do it better.” In addition, he said, AP has developed a series of templates to help reporters improve the wording and relevancy of their initial filings.

The result, he said, was that improved AP filings seem to be “getting better results” and are “much more cost effective.” Bridis added that the outcomes from AP’s administrative appeals to agency denials also “are getting better.”

However, in contrast to the AP, the story behind the large number of FOIA requests submitted by media organizations who tied for second place is quite different — the Center for Investigative Reporting (CIR) and the Houston Chronicle (HC). In each of these cases, a single reporter — Andrew Becker (CIR) and Susan Carroll (HC) — was responsible for submitting all or virtually all requests from each organization. These two reporters stand as great examples of what many more reporters could be doing but currently aren’t: using FOIA requests to ferret out important news stories.