When leaks dry up, we turn to FOIA

The Boyertown Area Times - - OPINION - Lata Nott is ex­ec­u­tive di­rec­tor of the First Amend­ment Cen­ter of the New­seum In­sti­tute. Con­tact her via email at lnott@new­seum.org, or fol­low her on Twit­ter at @LataNott

When we talk about the im­por­tance of a free press, what we’re re­ally talk­ing about is how im­por­tant it is for the press to serve as a watch­dog on the govern­ment. The high­est re­spon­si­bil­ity of jour­nal­ism is to sup­ply the peo­ple with in­for­ma­tion about what their govern­ment is do­ing, so that the peo­ple can hold the govern­ment ac­count­able, and make the best pos­si­ble de­ci­sions when they vote.

But if you’re not a jour­nal­ist (full dis­clo­sure: I am not), you may not give a lot of thought to how jour­nal­ists get that in­for­ma­tion in the first place. Of­fi­cial govern­ment press re­leases and brief­ings aren’t re­ally the place to find in­for­ma­tion about govern­ment mis­con­duct. Ob­vi­ously, leaks are a much bet­ter source when it comes to get­ting the real dirt. But the re­cent em­pha­sis on pros­e­cut­ing leak­ers is likely to have a ma­jor chill­ing ef­fect on that source of in­for­ma­tion.

But there is a way that jour­nal­ists can get their hands on FBI records, se­cret mil­i­tary pol­icy memos, and NSA email ex­changes with­out hav­ing to worry about their sources get­ting ar­rested or fired.

They can ask the govern­ment for them.

The Free­dom of In­for­ma­tion Act (FOIA) is a law that re­quires the govern­ment to hand over its records if some­one asks for them. The act ap­plies to fed­eral govern­ment agen­cies, but ev­ery state has laws that al­low the pub­lic to ac­cess its govern­ment records. Any­one can re­quest in­for­ma­tion, whether they’re a U.S. cit­i­zen or for­eign na­tional. And any­thing can be re­quested.

A govern­ment agency can, of course, deny your re­quest if it de­cides that the in­for­ma­tion you’re seek­ing falls into an exemption cat­e­gory, like in­for­ma­tion that would threaten na­tional se­cu­rity, or in­vade some­one’s pri­vacy. But if you think your FOIA re­quest was un­fairly de­nied, you can ap­peal, and if that doesn’t work, you can sue.

Nabiha Syed, as­sis­tant gen­eral coun­sel for Buz­zFeed, is in­ti­mately fa­mil­iar with this process. A large part of her job in­volves get­ting govern­ment agen­cies to give up in­for­ma­tion that they would rather not share — in­for­ma­tion that of­ten ends up be­ing cru­cial to Buz­zFeed’s re­port­ing. She sees the right of the pub­lic to ac­cess govern­ment in­for­ma­tion as an ex­cit­ing First Amend­ment fron­tier. “For the most part, the First Amend­ment says, ‘This is hands off, the govern­ment’s not go­ing to be in­volved, you guys fig­ure out speech,’” Syed says. “And then you have the First Amend­ment right of ac­cess, which says, ‘Yes, but also, we are go­ing to al­low you to use the law as a sword to get ac­cess to ju­di­cial pro­ceed­ings, to of­fi­cial records ... to ad­min­is­tra­tive pro­ceed­ings.’”

Re­quest­ing — or fight­ing for — govern­ment records is an in­stru­men­tal part of Buz­zFeed’s re­port­ing strat­egy. Such records have al­lowed the Buz­zFeed News team to re­port on mis­con­duct in death penalty ex­e­cu­tions, for-profit fos­ter care scan­dals, and the wide­spread abuse of sea­sonal mi­grant work­ers. Just last month, Buz­zFeed News ob­tained a se­cret Depart­ment of De­fense re­port that stated that Chelsea Man­ning’s dis­clo­sure of Iraq-re­lated doc­u­ments would be un­likely to have any im­pact on U.S. op­er­a­tions in Iraq (di­rectly contradicting the govern­ment’s po­si­tion at Man­ning’s trial).

To be sure, the sys­tem is far from per­fect, as many in­for­ma­tion-seek­ers can at­test.

As Jason Fagone wrote in his ar­ti­cle “The Se­cret to Get­ting Top-Se­cret Se­crets,” “The Free­dom of In­for­ma­tion Act, passed in 1966 to in­crease trust in govern­ment by en­cour­ag­ing trans­parency, has al­ways been a pain in the ass. You write to an un­car­ing bu­reau­cracy, you wait for months or years only to be de­nied or redacted into obliv­ion, and even if you do get lucky and ex­tract some use­ful in­for­ma­tion, the world has al­ready moved on to other top­ics.”

But when it does work, the pay­offs can be enor­mous. As Nabiha Syed says, “How do we at least in­ject the in­for­ma­tion we need into the com­mons, into the pub­lic square, to try and heighten the con­ver­sa­tions we’re hav­ing? At least get­ting the un­der­ly­ing facts out there, in ways that are hope­fully more au­thor­i­ta­tive than anec­do­tal, I think would be re­ally help­ful.”

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