2004 National FOI Day keynote speech

Tuesday, March 16, 2004

When I think back over the 20-plus years that I’ve spent litigating Freedom of Information Act cases, the first thing I realize is that this is a skill that I never set out to acquire. I came to Washington in 1980 with an interest in civil rights and civil liberties issues. In the post-Watergate period, the potential abuse of government investigative powers and the proper role of agencies like the FBI and the CIA were questions still fresh in many minds. While many believed that the reforms put in place after Watergate and the revelations of the Church Committee were important checks against a possible recurrence of those abuses, others characterized those reforms as an overreaction that unduly tied the hands of law enforcement and intelligence agencies.

As I began working on those issues, it quickly became apparent that the FOIA provided a critical means of public oversight. It also became apparent that writing to a federal agency and invoking the act was often an exercise in futility, and that FOIA’s judicial review provision frequently offered the only real hope of enforcing the public’s right to know. So I realized that, in order to be an effective civil-liberties advocate, I needed to learn how to pry information out of the hands of a reluctant bureaucracy. FOIA litigation skills were a means to an end, an important tool to obtain information relevant to ongoing policy debates. Little did I know that I would spend most of my time during the next two decades squabbling over documents with an array of agencies (some not yet even born!) through a succession of administrations.

It’s unfortunate that some of us need to be professional FOIA litigators, and that public-interest groups need to have litigation capabilities in order to conduct serious policy research. The process shouldn’t be that difficult, and average requesters should not have to find themselves, as they all too often do, at the end of their quest for information when they read those magic words in an agency’s response letter: “You have the right to seek judicial review … .” Citizens shouldn’t need to find lawyers when they seek to exercise a right as basic and fundamental as the one that FOIA purports to grant.

As anyone who has ever waded into the FOIA process knows, agencies often throw up procedural hurdles before the merits of exemption claims even arise. In fact, most of the battles that I’ve fought over the years have involved these kinds of preliminary obstacles, which often appear to be concocted by agencies that simply don’t want to be bothered with a document search or a substantive response. I’ll provide some examples.

The first incident is probably the most outrageous. In the early 1980’s, after the FBI’s harassment of Martin Luther King, Jr. had been well-documented, his widow, Coretta Scott King, requested a copy of her own FBI file. Incredibly, the Bureau denied her request for a public interest fee waiver, refusing to process her request unless she agreed to incur substantial costs. The Bureau had recently completed its release of Dr. King’s file, which had generated extensive media coverage, and it was hard to imagine a subject of greater public interest than FBI surveillance of the King family. The FBI finally relented after Jack Anderson publicized the dispute in his column, but the episode clearly illustrated the Bureau’s view of what served the public interest and what didn’t.

The next example is a bit more involved. In the late 1980s, as counsel to the National Security Archive, I represented former Ambassador Kenneth Rush in a FOIA dispute with the State Department. In 1971, while Rush was serving as ambassador to West Germany during the Nixon administration and negotiating with the Soviets on the future status of Berlin, he was instructed by Nixon to use a secret “back channel” to communicate with Henry Kissinger (then the national security adviser) and to conceal the arrangement from the State Department.

When Rush left government service in 1977, he sent his set of the cables, along with his other official papers, to the State Department. Nine years later, when he was writing his memoirs, Rush sought declassification of the material and the department denied his request. (It’s worth noting here that Kissinger retained his set of the documents when he left the government and freely referenced them in his own memoirs). After we filed suit to challenge the withholding, the department argued that the papers were not subject to FOIA at all, but were instead covered under the Nixon Records Act. Noting that the State Department had exercised control over the documents for 12 years, the court ruled that they were, indeed, subject to FOIA.

Much of my time at the National Security Archive was devoted to the issue of processing fees. In 1986, Congress amended the Act in an effort to remove the obstacle of fees for educational and news media requesters. Despite the archive’s clear intention to widely disseminate the information it requested, the Reagan administration drew a line in the sand and refused to grant the archive preferred-fee status. The D.C. Circuit Court of Appeals ultimately ruled in the archive’s favor, holding that an organization is entitled to “news media” status if it “gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw material into a distinct work, and distributes that work to an audience.” Most of us thought that was obvious from the outset.

Everyone assumed that the “news media” issue had been resolved by the archive case in 1989, but the Defense Department resurrected its discredited position in 2002, when it denied media status to the Electronic Privacy Information Center. I experienced a strange sense of déjà vu as I found myself grappling with this issue once again. Despite EPIC’s eight-year long record of dissemination, including regular, biweekly publication of an electronic newsletter, we were forced into a yearlong battle that resulted in a favorable court decision last January. The court had no trouble finding that EPIC fell squarely within the “news media” definition that had been established law for 13 years. But the dispute delayed the processing of our request for details of the Total Information Awareness project, a controversial initiative that was little known when we initiated our request. The only silver lining was that DOD, which had sought to collect fees from EPIC, ended up paying attorneys’ fees to us.

Processing delays have plagued the FOIA world for many years, and Congress sought to address the problem in 1996 when it created a statutory right to expedited processing when requesters could show a “compelling need” for disclosure. A case that EPIC is now litigating shows how narrowly the Justice Department applies that standard. Last summer, it was reported that DOJ had instructed all 94 U.S. attorneys around the country to lobby against pending legislation that would have limited implementation of a controversial provision of the USA Patriot Act. Major newspapers, including The New York Times and The Washington Post, ran editorials questioning the propriety of the directive, and Rep. John Conyers, ranking member of the House Judiciary Committee, asserted that the department may have violated the Anti-Lobbying Act.

In the wake of this media attention, EPIC submitted a request to DOJ for documents detailing the efforts undertaken by U.S. attorneys in response to the directive. We requested expedited processing, citing department regulations requiring expedition when a request is submitted by a news media requester and there is “an urgency to inform the public” about the subject, or when the request involves “a matter of widespread and exceptional media interest in which there exist possible questions about the government’s integrity.” We argued that the requested information was relevant to an unfolding controversy involving the Patriot Act — one of the most hotly debated pieces of legislation in decades. We noted that the nation’s leading newspapers and a key member of Congress had raised questions concerning “integrity.” But DOJ refused to expedite the request and, as a reminder that the courts are often hesitant to second-guess agency FOIA decisions, the district court ruled for the department. We have appealed that decision to the D.C. Circuit and anticipate the support of a broad coalition of media and public interest groups.

Most recently, DOJ seems to have adopted a new position with respect to EPIC’s entitlement to expedited processing, one that would disqualify us based upon our status and regardless of the subject matter of a particular request. In court papers filed last month, in another case involving expedited processing of material concerning the Patriot Act, the Justice Department asserted that EPIC is not entitled to the expedition of its requests because it is not “primarily engaged in disseminating information” — despite the judicial finding just last year that our dissemination activities qualify us for “news media” fee status. So we might find ourselves fighting this same battle once again.

My point in citing these examples is not merely to regale you with war stories. It is to illustrate that procedural obstacles are all too often put in the way of important and legitimate requests. You will notice that none of the disputes I’ve discussed involved the actual content of requested records or whether information was properly exempt from disclosure — in all of these cases, those issues were still a long way off and the requesters were simply trying to get to the point where those matters ultimately could be addressed.

These examples, which date back over 20 years, also show that bureaucratic resistance to the FOIA process has been with us for a long time. A congressional report on FOIA administration cited several major problems; the first two were “the bureaucratic delay in responding to an individual’s request” and “the abuses in fee schedules by some agencies.” The only thing about these findings that might surprise some of you is that they were contained in a report issued in 1972. Although these abuses led to enactment of the comprehensive FOIA amendments of 1974, it is fair to say that the process is far worse today. The 1972 report disapprovingly noted that agency response time averaged 33 days, and decisions on administrative appeals took an additional 50 days. Today’s requesters should be so lucky!

There are many aspects of the FOIA process that need to be fixed, but time is short so let me address two related problems — delays and expedited processing. Federal agencies have exhibited a great deal of creativity in throwing up obstacles, so supporters of open government must also be creative in crafting solutions. Here are two approaches that Congress should consider in order to give FOIA a fighting chance of working as intended.

First (and that is not a new suggestion), it is time for Congress to put its money where its mouth is and adequately fund agency FOIA administration. The old joke (which isn’t really funny) is that the government spends more each year on military bands than it does on FOIA. The years-long backlogs in many agencies will never disappear until there are adequate and specific budget line items for FOIA compliance, and aggressive congressional oversight of agency performance. If Congress wanted to address the persistent processing delays, it would ask some basic questions. What percentage of an agency’s public affairs budget, after the promotional videos, VIP junkets and self-aggrandizing Web sites goes into the FOIA process? How much money does an agency actually recover in processing fees from the “commercial” requesters who create much of the FOIA workload? Would agencies have more incentive to aggressively collect those “commercial” fees if they could plow the proceeds back into the FOIA process? As is often the case, money (or the lack thereof) is the root of the problem.

The second solution would go a long way towards eliminating disputes over expedited processing. Once a requester qualifies for “news media” fee status, it should automatically be entitled to expedited processing of its requests. The fee category regime already reflects a congressional determination that media requesters, based upon their intent to publicly disseminate information, are entitled to preferred treatment. It makes no sense to encourage and facilitate those kinds of “public interest” requests through reduced fees and then allow them to languish for months or years while they sit in line behind commercial requests or other requests that are not likely to inform the public. To avoid potential abuses of an automatic “news media” right to expedited processing, Congress might consider imposing an annual quota on each preferred requester, permitting the requester to prioritize among its own requests and designate only the most time-sensitive for expedited treatment.

Both of these reforms — providing adequate resources and streamlining media entitlement to expedited processing — would help to eliminate some of the most persistent procedural obstacles that have made the FOIA process so frustrating. They would, perhaps for the first time, make the act a viable research tool for journalists and might even reduce the FOIA caseload in the courts.

I began this talk by recalling how I was led into FOIA litigation during the post-Watergate debates over government surveillance activities. It is worth noting that this year marks the 30th anniversary of both the 1974 FOIA amendments and the Privacy Act, two of the key reforms that emerged as a result of Watergate. Today, in the wake of Sept. 11, the debate over the proper scope of government investigative authority is perhaps more critical than ever before, and the effectiveness of those congressional actions 30 years ago is being put to the test.

We are all familiar with James Madison’s observation that, in a democracy, the people “must arm themselves with the power knowledge gives.” But there is another Madison quote that is particularly timely today: “The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse.” The Freedom of Information Act, if aggressively invoked and fairly administered, provides one of the principal checks against such abuse. Now, when we need it the most, let’s ensure that the public’s right to know is not diminished.

Thank you.