‘FOIA terrorist’ says Obama whiffed on transparency
By Benjamin Mullin • March 16, 2016
Editor's note: This is the third in a series of articles being published by Poynter to commemorate Sunshine Week. View the rest here.
Jason Leopold has spent his career digging up unsavory news about the United States government. Once dubbed a "FOIA terrorist" by an agency he bombarded with public records requests, the VICE News reporter is more or less constantly in a tug-of-war over sensitive information.
The last eight years have made that battle difficult. Despite promises to the contrary, the Obama administration has obstructed the flow of public information and frustrated attempts to reform the Freedom of Information Act, Leopold says. As newsrooms and First Amendment advocates kick off the annual celebration of open government known as Sunshine Week, Poynter conducted an email Q-and-A with Leopold about the state of information freedom in the United States and its outlook so far in the 2016 election.
Last week, you dropped a big disclosure — ironically gleaned through a FOIA request — that the Obama administration worked to sabotage passage of FOIA reform despite a publicly held position in favor of disclosure. As someone who wages FOIA battles with the government on multiple fronts at once, were you taken aback by the argument against transparency?
I was taken aback by the extent to which the Obama administration opposed FOIA reform. It wasn't just certain aspects of reform the administration opposed. It was virtually everything contained in the reform legislation, even the creation of an online FOIA portal that would make FOIA work efficiently. That was a huge surprise. Importantly, the Justice Department, speaking on behalf of the administration, opposed codifying into law Obama's presidential memorandum in which he instructed agencies to act with the "presumption of openness." To see the administration memorialize its position in documents was shocking.
When President Obama took office, he promised to usher in an unprecedented era of transparency to the White House. In your opinion, has he lived up to that pledge? Why or why not?
He has not. As I noted, in January 2009 he instructed all government agencies to act with the presumption of openness and Attorney General Eric Holder followed it up a few months later with guidelines for government agencies. But the agencies have not acted in that manner.
In my opinion, the reason this administration's rhetoric doesn't match its track record is because the Department of Justice's Office of Information Policy, or OIP, has not been enforcing the Holder's guidelines. That's OIP's job. They are supposed to encourage these agencies to abide by the guidelines and they have not been doing so. Additionally, and this is very important, it was only three months after Obama signed his presidential memorandum that he and his senior officials worked to weaken FOIA and to block the disclosure of detainee abuse photographs that were supposed to be released in response to an ACLU lawsuit.
So right out of the gate the president's first act after signing this historic memo about ushering in a new era of transparency and open government was to get Congress to tweak FOIA and allow the Secretary of Defense to withhold photographs and other media about the treatment of detainees from requesters. I think that set the stage and the tone for how government agencies would treat certain records requests. Moreover, there's a certain level of bureaucracy that exists within these federal agencies and we've been unsuccessful in cutting through it despite the explicit instructions from Obama and Holder that government agencies need to change their ways.
Has the rise of digital records and online databases made acquiring and sorting through records more or less difficult? On one hand, journalists have more information at their fingertips than ever. But on the flip side, that deluge of information can be hard to sort through, especially when many outlets are cutting down on staff.
It's a blessing and a curse. I think the Hillary Clinton emails, that VICE News successfully fought to get released, is a great example. Every month since last May, the State Department released a batch of emails, usually totaling in the thousands. They posted the emails on the State Department website and made the records searchable and indexed them by subject. That was hugely helpful and efficient. But because there was so much there to read through it made it very difficult for reporters to take the time to go through each and every one in search for news. I haven't even gotten through all of the emails largely because it's such an enormous investment of time.
As you undoubtedly noticed, election day will be here in a few short months. As a public records gladiator, do you think any candidate has made a sufficient pledge to transparency? Are you satisfied that the media has adequately vetted each candidate's record on access to open records?
No. Transparency isn't even a talking point on the campaign trail, and I do think that the candidates should at least be questioned about it. If any candidate should be questioned, in my opinion, it should be Clinton because of her email practices while Secretary of State. I certainly think that if a candidate were questioned about their stance on open records and transparency laws their responses would provide deep insight into the type of administration they would run. Whether they would follow through once they were elected is another story. With that said, the FOIA reform bill was one of the only bipartisan pieces of legislation that passed the House and the Senate during Obama's tenure. So the senators supported it. It's also important to remember that Congress is exempt from FOIA.
You noted in your story that there's currently a bill making its way through the legislature that would strengthen the Freedom of Information Act. Among other things, the bill would streamline the FOIA process and cut down on exemptions that federal officials could use to justify refusing a request. Are you optimistic that it will pass? What's your opinion on the bill?
It is a good bill, a strong bill, particularly on the changes proposed to Exemption 5, also known as the "withhold it because you can" exemption, which deals with records that are deemed to be deliberative. Government agencies have been citing this exemption, which is a discretionary exemption that agencies can waive but rarely do, to justify the withholding of all sorts of record such as ones that may embarrass the government. But what is disturbing about one version of the bill in the House of Representatives is the intelligence carve outs that would exempt certain records from disclosure under FOIA. For me, as a reporter covering national security, that would make my job trying to access certain records even more difficult.
Seven government agencies announced last year their intention to publish all public records requests they received online. This caused some consternation among reporters, who worried that the federal government was essentially giving away its FOIA scoops. What's your opinion on the matter? Is it a boon for transparency or an attempt to hamstring journalists?
I had issues with that pilot program, one of them being that it would not give journalist requesters, like me, the opportunity to sit with the documents and take the time to formulate a report or work on a longform investigative story. In other words, it would seem like the "release to all" would leave us feeling scooped. But having seen the way the program has worked over the past six months or so, I am no longer concerned because it requires a person to visit these government websites on a daily basis and regularly checking to see what they have posted. These agencies are not publishing a press release announcing the release of these records. Furthermore, the agencies have allowed the original requester to work with the documents for a week or two before posting them.
Sunshine Week, which began on Sunday, is a fitting period to pause and take stock of the climate of access and transparency in the United States. In your opinion, do citizens have more or less access to public records than they did when you started working? Are you optimistic for the future of FOIA, or do you think we're on a downward slide?
I think citizens have become keenly aware and educated on state public records laws and how FOIA works and I think social media has been hugely helpful in that regard. However, the public has to contend with massive fees for public records, which is often used as a way to discourage requesters from filing requests and also an attempt to thwart requesters from accessing public records. With that said, I think that the future of FOIA will remain bleak unless Congress reforms the law. Given that this year is FOIA's 50th anniversary, I am hopeful that the effort to improve it will continue.