The speakers at the “Information Lock-Up: When the Freedom of Information Act Is Not Enough” deep dive session spoke about the threat to First Amendment freedoms while also empowering attendees to take action within their newsrooms.
The discussion centered around the Freedom of Information Act (FOIA). It was enacted in 1967, allowing citizens to request federal documents, shedding light on the government’s internal processes. However, recently many states have been tightening laws and creating barriers to this free flow of information.
Georgia First Amendment Foundation President Emeritus Richard Griffiths began by discussing a number of legal challenges to FOIA. For example, Arkansas Gov. Sarah Huckabee Sanders cited safety and privacy concerns as reasons to overhaul state FOIA law in mid-September.
“Open-record laws are under attack at a state level and somewhat at a federal level,” said Jason Leopold, an award-winning investigative journalist. Leopold has spent countless hours filing FOIA requests in his career, and he warned attendees of the different hurdles he commonly faces.
FOIA laws come with exemptions that agencies can use to deny requests.
“Things like privacy concerns and national security are exemptions, but the most abused one is deliberative process, Exemption 5.”
FOIA Exemption 5 applies to agency records that are in the drafting process or contain deliberations between parties before a decision has been made. According to the Department of Justice’s FOIA guide, Exemption 5 is implemented to protect “decision making processes of government agencies,” but Leopold argues agencies misuse this privilege in many cases.
“Sometimes I’ll put in a FOIA request and it’ll be denied due to Exemption 5,” Leopold recalled. “But when I appeal it and finally receive the document, I’ll see that it had nothing to do with deliberations or deal. It’s just embarrassing info [to the agency].”
Attorney Kirby Thomas West suggested that journalists specify exactly what records they are requesting in their FOIA requests. “Specificity is important,” West explained. “If your record request is too broad, FOIA agents can find one item that is exempt and deny the whole request.”
Leopold agreed with this suggestion and added, “When I’m requesting a list of items on one FOIA request, I always add a line saying ‘Treat each item as a separate request.’ That way, even if one item gets denied, the other items can still be approved and disclosed.”
Another option Leopold suggested was to request “meta-FOIAs,” an additional FOIA request for documents related to the original FOIA request that was denied. He says this additional FOIA request can potentially shed light on the reasons the first request was denied. It could even result in the release of the initial desired information.
After exhausting these options, journalists may have to appeal their denied FOIA requests through litigation, a subject that West specializes in. She assured attendees that even if they do not have access to lawyers, they could reach out to local law schools’ legal clinics. Many offer pro bono services that encompass FOIA appeals.
Leopold also added that organizations such as the Reporters Committee for Freedom of the Press and the National Freedom of Information Coalition can help journalists struggling with FOIA issues.
If all other options fail, the three speakers emphasized the power of reporting on denied FOIA requests. “Don’t underestimate the power of shaming agencies for stonewalling you,” Leopold said. “This is information that we are entitled to.”