Muzzling the Freedom of Information Act

The federal government is making it increasingly difficult, and prohibitively expensive, for journalists to get files that agencies want to keep secret, despite President Obama's pledge of transparency, IRE President David Cay Johnston writes for Newsweek.

That's bad news for authors, editors, producers, writers, and publishers, as well as anyone else interested in democratic government. But it is great for ineffective, inefficient, and corrupt federal officials.

Federal agencies routinely flout the 1966 Freedom of Information Act, the so-called Open Government Act of 2007 that strengthens the 1966 law, and Obama's 2009 executive order directing agencies to err on the side of disclosure, not secrecy, a host of journalists, public-interest advocates and lawyers tell Newsweek.

Specialists in Freedom of Information Act requests say there has been a general tightening up and an increase in denials for both records and fee waivers for journalists. They attribute this to Freedom of Information staff budget cuts and the absence of pushback from Congress.

And what of President Obama's directive?

"All Obama's executive order did was give agencies that were good about disclosure something to back them, while requiring nothing of the bad actors" who gin up reasons to withhold, says Bradley P. Moss, a Washington lawyer who specializes in access to government records.

Moss and others cite the Central Intelligence Agency as obstinate, releasing hardly any information and refusing to comply with laws requiring machine-readable documents, like spreadsheets. The CIA only releases copies of records on plain paper.

An egregious example of flouting the law is a recent, undated Justice Department ruling denying a fee waiver to Dennis McDougal, a former Los Angeles Times reporter and author of 10 books, including investigative biographies of Jack Nicholson, Hollywood mogul and Democratic Party power Lew Wasserman and Times publisher Otis Chandler.

McDougal wants Drug Enforcement Administration records of David Wheeler, a shadowy entertainment industry figure who died in 2001. Wheeler was known to hang out in the DEA's San Diego office and make time with secretaries. McDougal (and others) believe he gave agents damaging information on his competitors and, in return, was allowed to run his criminal enterprise.

Such records seem to meet the legal standard of information "in the public interest because it is likely to contribute significantly to public understanding" of government operations.

Sean R. O'Neill, chief of the Justice Department appeals staff, denied McDougal's fee waiver request stating, "It appears that you seek the information to further your commercial interests." O'Neill did not respond to a request for an interview.

Corporations asking for government files to learn what competitors are up to are commercial interests that must pay for document searches, but the law treats authors and other journalists differently because they represent the public interest. Big companies and their lawyers flood agencies with such requests and pay the required fees.

O'Neill told McDougal he had not shown how the records would "shed new light" on government operations, so he must pay $1,900 just to have 17 files searched with no promise that any documents would be released.

And, O'Neill wrote, McDougal had not established that he was a journalist likely to get his work published, even though the research is for a biography of Bob Dylan, for which McDougal is under contract with Turner Publishing.

Moss, who does not represent McDougal, says such responses are now commonplace: "Federal agencies have essentially been nitpicking [Freedom of Information Act] requests to find ways to deny fee waivers and access to files."

A new tactic is claiming government documents are "personal" rather than public records or that the records are of no interest to the public. That forces journalists to give up or sue, which, with appeals, can take years and cost tens of thousands of dollars.

Two officials denied requests by author Greg Muttitt for his 2012 book Fuel on the Fire: Oil and Politics in Occupied Iraq, on what lawyer Kel McClanahan calls "the bizarre position that no one in America would care about this because they have more pressing issues" to consider.

(Disclosures: McDougal and I use the same literary agent, and I am editing an anthology for Muttitt's publisher, but learned of these matters independently.)

The federal government is also refusing to disclose records and grant waivers from small circulation periodicals on the theory that they cannot "contribute significantly to public understanding."

Those rejected range from IndyMedia.Santa Cruz.org, a one-person California blog, to High Country News, an environmental magazine with 25,000 paid subscribers and a much wider influence because of its award-winning watchdog reporting on government since 1970.

Writer Matt Jenkins says High Country News paid the Coast Guard for the records because the cost was less than an hour's fee for a lawyer, but he said the assertion that its circulation made it insignificant should offend everyone who believes government derives its powers from the people.

These rejections seem to clearly violate the 2007 Openness Promotes Effectiveness in Our National Government Act that makes disclosure, not secrecy, the legal principle. That law provides that "any person or entity that gathers information of potential interest to a segment of the public" and has an audience qualifies for fee waivers. The 2007 law makes no mention of audience size.

McDougal says he cannot afford a legal fight so he hopes to persuade a lawyer to take his case pro bono. "As a practical matter," McDougal argues, "we have given the right to define what a journalist is to bureaucrats.... By O'Neill's definition Thomas Paine would not have qualified as a journalist when he wrote Common Sense, which arguably incited the American Revolution, because Paine did not publish a newspaper or even a book, just the 18th century equivalent of a blog."