Media Lawsuits Seeking Government Records Jump Under Trump

The annual number of lawsuits filed by news organizations and reporters to obtain federal government records was up sharply during the first year and a half of the Trump Administration. On an annual basis, news media Freedom of Information Act (FOIA) filings rose above 100 for the first time. See Figure 1. This is a dramatic increase compared with levels during the presidency of George W. Bush and the first term of President Obama when the annual number of media FOIA suits usually fluctuated year-by-year between 10 and 20 filings[1].

Figure 1. Growth in FOIA Lawsuits Filed by Reporters and News Organizations through June 2018

While FOIA suits brought by nonprofit organizations and others has also grown during this same period, news media lawsuits seeking federal government records have grown the fastest, and during the first year and a half of the Trump Administration now account for 10.7 percent of all FOIA filings. This compares with only a 3.1 percent share filed by the news media during the first term of President George W. Bush.

As the FOIA Project previously reported, suits brought by individual reporters – in contrast to news organizations – initially fueled much of this growth. Suits filed by reporters alone which made up only one in four of FOIA filings during the twelve year period between FY 2001 – FY 2012, accounted for slightly over 60 percent of all FOIA news media suits during FY 2013 – FY 2016. The growth during the last year and a half, as shown in Figure 2, has been shared more equally. Suits seeking federal government records filed by news organizations, frequently also including their reporter as a plaintiff, accounted for just over a half (54.2%). FOIA lawsuits filed by reporters alone made up slightly less than half (45.8%).

Figure 2. Media FOIA Lawsuits Filed by Reporters Alone and Not by News Organizations

Who Are the Media Filers?

This report accompanies an update of the News Media list which provides a directory of the news organizations and reporters who brought FOIA lawsuits since October 2000. Now updated through June 2018, this News Media List contains information on a total of 567 news organizations and reporters who have brought Freedom of Information Act lawsuits. Starting with the case-by case records on virtually every FOIA suit now available on FOIAproject.org, the project team examined and classified each of the nearly fifteen thousand individual names of plaintiffs for cases filed in federal district courts since the beginning of FY 2001 to identify those that were media related.

The News Media list is actually an interactive tool that not only identifies each media organization and reporter, but also provides direct access to a variety of details about each case they have filed. To see who the most active FOIA media filers are, you can sort by media plaintiff’s name, or by time period and media category.

For more recent cases, a useful synopsis is given, along with descriptors of the specific issues involved. Click on a “case detail” link to pull up the court docket, the actual complaint and court opinions (where available), and an up-to-date listing of the events and proceedings that have taken place.

The updated list includes 91 separate news organizations and 161 reporters who have been named plaintiffs in lawsuits challenging federal government withholding since President George W. Bush assumed office. Most of these filed a single suit. In fact, almost three out of every four (73%) news organizations and reporters on the list filed only a single suit during this entire period. A total of 12 percent filed 2 suits. And only 15 percent filed as many as three or more suits.

In terms of numbers rather than percentages, just 38 reporters and news organizations filed three or more FOIA lawsuits during the past 18 years. Their relative importance in helping shape FOIA interpretations through their lawsuits was much larger than their small numbers might suggest. These more active filers accounted for fully 57 percent of all filings during this 18-year period.
See Figure 3.

Figure 3. Active Filers Are Relatively Few but Account for Majority of FOIA Lawsuits

Among these frequent filers, the “Top Ten” most active news organizations and news reporters each filed at least seven FOIA lawsuits during this period. See Table 1. Leading the list was The New York Times Company with 55 suits filed. In second place was Jason Leopold, now with Buzzfeed Inc., who has filed 46 lawsuits during this period. The Center for Public Integrity was in third place with 26 suits.

On the top ten, six are news organizations. Two of these six are legacy news organization – The New York Times and the Associated Press. The remaining four, in addition to the Center for Public Integrity, include Buzzfeed, the Daily Caller News Foundation and the Center for Investigative Reporting (CIR).

Five reporters also made the top 10 list. (Because of a tie for 10th place, five rather than four reporters made the list.) After Jason Leopold, New York Times reporter Charles Savage with 23 suits placed fourth. Former New York Times investigative reporter and now a Syracuse University journalism professor and TRAC Co-Director, David Burnham was in sixth place with 11 FOIA suits. Charles Seife and Josh Gerstein tied for tenth place with 7 lawsuits each. Formerly a writer for Science magazine, Seife is now a New York University journalism professor. Gerstein is a White House reporter for POLITICO specializing in legal and national security issues.

Accounting for the Growth Rate: Bush, Obama, and Trump Presidencies

Because of the outsize role frequent filers play in terms of numbers of FOIA media lawsuits filed, an important question is whether the enormous rise in the volume of media suits since FY 2012 is because a few reporters and news organizations are becoming increasingly active, or whether larger numbers among the media community are taking the federal government to court.

Among news organization there has actually been a decline in the number of separate organizations filing suit. During the eight years of the Bush administration, 52 news organizations filed one or more lawsuits, while during the eight years of the Obama administration, the number fell to just 44. During the first year and a half of the Trump presidency, so far only 17 news organizations have brought a FOIA action in federal court. However, the average number of lawsuits filed has steadily grown and the proportion just bringing a single suit has fallen sharply. During the Bush years, news organizations on average filed 1.5 suits. More than four out of five (81%) filed just a single suit. During the Obama presidency, media organizations filed 2.4 suits on average, and the proportion of those filing a single suit fell to two out of three (66%). Despite the much shorter period thus far during the Trump presidency, media organizations filed on average 4.2 suits! And just four out of ten (41%) filed only a single suit. See Table 2

The number of news reporters filing lawsuits in contrast has rapidly increased during this period from 34 reporters during the Bush years, to 86 during Obama’s two terms. Thus a growing number of news reporters, rather than news organizations, are responsible for fueling the growth in FOIA lawsuits during the Obama years. And thus far during the Trump presidency already 63 different named reporters have filed suits. On average each reporter files fewer suits than news organizations do, and growth in the average number of filings has been much less. All told, the growth in media-filed suits during the Trump presidency has been primarily due to more reporters filing lawsuits, and a smaller number of media organizations who have become even more frequent filers.

Shifting Make-up of Active Filers

Table 3 provides a “Top Ten” list for each of the Presidential administrations. The majority are listed in the top ten for just a single period pointing to the changing make-up of parties filing suit.

Three news organizations – The New York Times, the Center for Public Integrity, and the Associated Press – made the top ten list during each presidential period. Two additional news organization – the Daily Caller News Foundation and Fox News Network – made the top ten in two out of three presidential administrations.

No reporter made the top ten list for all three presidential periods. However, four reporters – Jason Leopold, Charles Savage, Josh Gerstein, and David Burnham — made the top ten on two out of three of these lists.

Please Help Us Improve This List

Our work continues. We encourage others to contribute to this effort. Please email us at trac@syr.edu with the names of anyone we missed, and let us know if we have made any errors.

If you were the plaintiff or attorney in any of these cases, we would especially encourage you to contribute court documents – including summary judgment memoranda and declarations filed by either side — recording details of the case that you would be willing to share. Click on the “Case Detail” link at the right of your case on the News Media List. Each case detail page in addition to listing currently available documents on this case provides a convenient “Contribute Documents” link allowing you to upload additional documents. Note that to contribute documents you need to be logged in first. Use the “Log In” button at the top of any page.

Footnotes

[1] The project has been actively monitoring trends – both up and down — in media-filed FOIA suits for a number of years. Our initial March 2013 study found at that time news organizations were filing slightly fewer challenges to government secrecy in federal court. That study primarily focused on legacy news organizations and did not consider suits by reporters.