News Reporters Drive Growth in Media FOIA Litigation

Whether measured in sheer numbers or as a proportion of all Freedom of Information Act suits filed in federal district courts, the number of FOIA cases brought by reporters and news organization has substantially increased during the last four years.

This recent trend is exactly the opposite of what many commentators have suggested is now occurring. As the FOIA Project previously noted, the growing financial pressures that the industry has been experiencing was thought to make marshaling resources needed to mount such suits more difficult, while others also believed that the media as a whole has simply become less willing to haul federal bureaucrats to court.

This surprising and substantial recent jump in media-led federal FOIA litigation is clearly evident in the time series plot shown in Figure 1 covering October 2000 through November 2016. Shown is the month-by-month profile of the actual number of media organizations and reporters who filed federal FOIA lawsuits. Plotted is the moving yearly average of media plaintiffs filing suit. Month-to-month natural variation is averaged out over a 12-month period so that trends can be more clearly seen.[1] During the last four years, the substantial jump in the volume of media plaintiffs is clearly shown.

Figure 1. News Organizations and Reporters Filing Federal FOIA Lawsuits, October 2000 – November 2016

The results are the first of several findings that have emerged from FOIA Project’s prodigious effort to systematically gather detailed information documenting each lawsuit filed by reporters and news organizations since FY 2001. 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 nine thousand individual names of plaintiffs to identify those that were media related. The result was published as The News Media List.[2]

While many commentators and surveys[3] have bemoaned the supposed decline in willingness of the news media to challenge unlawful withholding by court action, this is the first comprehensive national research study that examines the actual behavior of news organizations and reporters over a long sweep of time.

Key Findings

For the first dozen years (FY 2001 – FY 2012), our research documents modest year-to-year fluctuations in media litigation activity. Thus, if the focus in the earlier years was on a narrow slice of time, the records show that the activity sometimes is slightly up and sometimes slightly down.[4] But over the longer term, the level of activity was essentially steady. Media lawsuits for over a decade or more were neither consistently increasing nor decreasing.

In total, media filings during the eight years of the Bush Administration and first four years of the Obama Administration averaged roughly 12 per year. This represented only 3.5 percent of all such matters that went to court.

But during the last four years, a marked change occurred with media-filed FOIA suits rising sharply: 21 in FY 2013, 39 during FY 2014, and 56 in FY 2015. While the number fell to 35 during FY 2016, this level was still nearly three times the level of roughly 12 per year that had previously prevailed.[5]

During the last four years there has also been an overall rise in the total number of FOIA suits filed by all parties. See FOIA Project December 2016 report. Nonetheless, media-filed lawsuits which represented 3.5 percent of total filings during the earlier years jumped to comprise more than one out of every ten FOIA suits (10.8%) at their peak in FY 2015.

There is little evidence that this rise had anything to do with whether or not the level of government secrecy changed. Few challenge unlawful withholding by actually bringing a case in court, and the factors that influence whether a suit is brought are diverse.

What then fueled this sharp rise? While there has been speculation about the possible impact of the “new media” in driving change, as discussed below, this component was not responsible for the overall increases. The force that has largely driven this startling rise is the burgeoning number of individual reporters filing suit on their own behalf without any news organization as a co-plaintiff. Reporters filing individually now account for the majority of all media FOIA lawsuits. In fact, as shown in Figure 2, during the last four years reporters filing individually accounted for over 60 percent of the media suits filed.

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

Examining News Organizations That File FOIA Suits

This research conducted for the FOIA Project by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University further shows that most news organizations from FY 2001 – FY 2016 filed just a single suit. This means that the specific identity of media organizations filing FOIA lawsuits changes markedly across time.

While the identity of news organizations may change, a second question addressed by the research is whether more media organizations are now filing suit.

On this latter question, the data show little evidence that more media organizations are actually going to court. There were 30 media organizations that brought suit during the first four years of the Bush administration; 28 during the second four years of the Bush presidency, 17 media organizations that filed suit during the first four years of Obama’s administration, and 30 so far in the last four years of Obama’s presidency.[6]

Thus, it is clear that the rise occurred primarily because some news organizations went to court more often, not that more media organizations were bringing suits. In fact, as shown in Table 1, among the media filers there were a small number of clearly dominant players. Just three news organizations – The New York Times, the Center for Public Integrity, and the Associated Press — accounted for one out of every three suits filed by news organizations during the entire sixteen year period. The specific FOIA cases filed by these three are shown on The News Media List.

The New York Times filed at least 36 federal FOIA lawsuits over the past 16 years. While a number of news organizations could be said to have similar resources, the Times demonstrated that it is not so much resources but commitment from the top that determines if a news organization undertakes FOIA litigation. David McCraw, the Times’ vice president and assistant general counsel, said FOIA was crucial to the paper’s work. “Simply,” he said, “we feel that using this law is an essential part of our mission.”

Indeed, the Times was the entire source for the upsurge in media organizations filing lawsuits seen earlier in Figure 1. A total of five (5) FOIA lawsuits were filed during the entire Bush Administration years, while the remaining 31 were filed by the Times during Obama’s presidential years with two thirds (20) of these filed over the last three years.

The second most active news organization in filing FOIA lawsuits was the Center for Public Integrity. It filed a total of 17 FOIA lawsuits. These were split almost down the middle between the Bush and Obama years. CPI has been a notable pioneer in creating and sustaining a new model for the delivery of investigative reporting. It also clearly demonstrated that it is not necessary to be a large legacy news organization to sustain an active profile in litigating FOIA matters.

The third most active media organization during this period was the Associated Press. AP filed a total of eight (8) FOIA suits. Slightly over half (5) of these were filed during the Bush years, while the remaining (3) were filed during Obama’s presidency.

Other frequent filers demonstrate that smaller and specialty news organizations can and did play important roles. Tied for fourth place as the most active news organizations with six FOIA lawsuits each filed during this period was the San Francisco Bay Guardian and the organization, Tax Analysts. The latter has for many years covered issues in the tax world.

All news organizations that were identified as filing three or more FOIA lawsuits since FY 2001 are listed in Table 1, along with the number of suits each filed during the Bush versus the Obama years. These included the Fox News Network that filed 5 suits, and three news organizations that filed four suits each: the Los Angeles Times, Prison Legal News, and the Daily Caller News Foundation.

The Expanding Number of Reporters Filing FOIA Suits

Just as was the case for news organizations, most reporters filing FOIA lawsuits brought just a single suit during this entire period. And thus, the project’s research shows the specific identity of reporters filing FOIA lawsuits continually changes across time.

Unlike news organizations, however, the data indicate that more and more individual reporters are bringing FOIA lawsuits. A total of 17 different reporters were plaintiffs in FOIA lawsuits during the first four years of the Bush Administration. This rose to 20 in the second half of the Bush Administration and to 25 during the first four years of the Obama Administration. During the last half of the Obama Administration, the number of reporters who were named plaintiffs in FOIA lawsuits jumped to 65. The News Media List identifies each of these reporters and provides details on the particular cases they filed.

Part of this increase was due to the increasing tendency for news organizations to include their reporter as a named plaintiff in the FOIA lawsuit. This accounted for most of the rise during the initial years. Reporters filing lawsuits by themselves did not materially increase over the 2001 – 2012 period. However, their numbers jumped during the last four years and grew to account for the vast majority of all media lawsuits (see earlier Figure 2).

While some of these individually filing suits were financed by the news organizations they worked for, individual reporters also found attorneys willing to take on such litigation. Driving factors almost certainly involved various changes in the basic FOIA law. A provision for the award of attorney fees was first added in the 1974 amendments to the Act when the requester “substantially prevailed.” However, the meaning of “substantially prevailed” was significantly enlarged by amendments to FOIA contained in the 2007 OPEN Government Act.

Now, for example, even if the agency decided “voluntarily” to change its position after the suit was brought an award of attorney fees is possible. Since FOIA lawsuits are frequently successful in producing so-called “voluntary” release of documents once the federal agency is forced to defend its withholding in court, this greatly enlarged the odds that a reporter would substantially prevail and thus an attorney might be willing to undertake the case. It is noteworthy that this change in the law did not produce a similar increase in the number of news organizations filing suit. Yet the greater availability of an award of attorney fees and other litigation costs would apply equally to them.

So clearly other factors must be influencing the greater number of reporters who are now filing suit. Another possible factor is a second change in the 2007 OPEN Government Act which greatly expanded who could qualify as a “representative of the news media.” Among other things the modified law made it easier for freelance and web-based journalists to qualify for the waiver of search fees when making FOIA requests. Thus, initial administrative requests were no longer stopped in their tracks by the required payment of search fees. The reduction of processing fees – understood to have long been a barrier – may have indirectly contributed to the growth in court actions by encouraging more reporters to use FOIA. The growing availability of pro bono FOIA attorneys able and willing to take on these cases for individual reporters also played a role.

Frequent Filers Among Reporters

Over the course of the study period, 22 reporters filed more than a single FOIA lawsuit and they accounted for slightly over half of media lawsuits filed by reporters, while 88 reporters were involved in only a single suit. The names of reporters who filed three or more suits during this period are listed in Table 2.

Jason Leopold, currently with VICE News, has been far and above the most active FOIA litigant. He filed at least 32 federal FOIA lawsuits, the first of them in 2012. All of his suits have been filed individually and not jointly with a news organization. Leopold began filing suits as a freelancer, and has continued this activity since he joined VICE News.

The reporter who was a named plaintiff in the second highest number of FOIA suits (14) was Charlie Savage of The New York Times. Savage is an investigative reporter based in the paper’s Washington bureau. All of his suits were filed jointly with the Times and his litigation activity began in 2010.

In third place was former New York Times investigative reporter, David Burnham, with 9 suits. His suits were filed across both the Bush and Obama Administrations. Now a journalism professor at the Newhouse School at Syracuse, he has continued writing and is an author of several books and numerous articles examining federal agencies. He is also the founding co-director of TRAC and of its FOIA Project and has filed his suits jointly with the other founding co-director, Susan B. Long, a statistics professor at the Whitman School at Syracuse.

Similar to Burnham, the individual tied for the fourth highest volume of FOIA lawsuits is a journalist now in academia. Charles Seife, formerly a writer for Science magazine and currently a professor of journalism at New York University, was a named plaintiff in five FOIA suits since 2001. The first of these was filed in 2011.

Jeff Stein, who tied with Seife with five FOIA suits, is the national security correspondent for Newsweek. Before joining Newsweek, Seife held various positions, including at UPI, Congressional Quarterly, and the Washington Post. The first of his FOIA suits was filed in 2012.

Conclusion

Fifty years ago news organizations and associations were central backers in the movement that led to the passage of the original Freedom of Information Act. The natural expectation was that news organization would be in the forefront of efforts to ensure that government agencies then complied with FOIA requirements after the law was passed.

However, the way FOIA is structured relies upon individual requesters to enforce FOIA requirements by taking agencies to court to compel compliance. Who plays a greater or lesser role in this vital enforcement process influences how the law is shaped through this litigation. And ultimately, it helps determine how well or how poorly FOIA performs its role in ensuring that the public’s business is open to public scrutiny.

Up until now most of the discussion around bringing FOIA lawsuits has focused on the role of news organizations and has largely ignored the vital part that individual reporters can and do play. The results of this research reveal that reporters have already emerged as an increasingly potent force in their own right to help ensure through litigation that agencies comply with the law.

[1] The moving 12-month annual running average is computed by summing up media plaintiffs filing FOIA lawsuits during the 12-month period ending with that month. Thus, the units shown on the vertical axis reflect at any point in time media plaintiffs on an annual basis over the previous 12 months.

[2] Note that this list is periodically updated. This report reflects the coverage of the list that was published in December 2016.

[3] See, for example, an April 2016 report from the John S. and James L. Knight Foundation in association with American Society of News Editors (ASNE), Associated Press Media Editors (APME) and the Reporters Committee for Freedom of the Press finding that leading editors felt the news industry is less able now than 10 years ago to pursue legal cases involving First Amendment-related issues, including those involving information access and government transparency. Also see results reported by the National Freedom of Information Coalition (NFOIC) and the Media Law Resource Center (MLRC) from a 2013 Open Government Survey that both resources devoted by media organizations to FOIA and open government issues as well as the kind of reporting that requires assertive legal actions had declined.

[4] For example, FOIA Project’s 2013 study of FOIA lawsuits filed by legacy news organizations during the last four years of the previous Bush Administration versus the first four years of the Obama Administration showed modest declines. A similar trend for this same period using a broader definition of news media lawsuits is also shown in Figure 1.

[5] The number of media plaintiffs shown in Figure 1 is higher than the number of suits filed, rising to 67 in FY 2015 and falling back to 56 during FY 2016. This is because some suits involved multiple media plaintiffs.

[6] For purposes of this study, any organization that describes itself as being a news organization, or uses some comparable descriptive term, was counted as a “news organization” in this report. This included legacy media, as well as specialty and newer forms of news organizations. In contrast to the definition employed here, under the even broader scope of the term “media requester” incorporated in the FOIA statute, many additional nonprofit organizations also qualify as news media for FOIA purposes. The FOIA Project is currently working on a separate study that examines FOIA lawsuits brought by these nonprofit public interest and advocacy organizations.