Government Displeases Journalists Who Rely On FOIA Requests With Plan To Release Documents 'To All' Simultaneously

from the a-win-for-the-public-somehow-a-'loss'-for-a-much-smaller-'public' dept

Tue, Jul 14th 2015 11:04pm — Tim Cushing

The US government has come up with a rather decent idea: rather than limit FOIA releases solely to the requesting party, why not release it to everyone simultaneously? On its end, this would possibly save it the trouble of dealing with multiple requests for the same information, as well edge it closer to the ideals of the Freedom of Information Act.

This isn't a new idea. Several UK government agencies already post responses to public records requests publicly, ensuring that these documents can be seen by as many people as possible. (Of course, this may change, considering the efforts being made to dial back the reach of the UK's open records law.) This decision makes sense, as the point of the FOIA is to provide records to the general public -- not just certain individuals who may or may not make them public -- in the interest of government transparency.

Oddly, there's been some backlash against this announcement, coming from some people who have somehow managed to prioritize their personal interest above the public interest.

“I do share the concern of other journalists that this could hurt the journalist who made the original request,” writes Washington Post Investigations Editor Jeff Leen via e-mail. “It could also affect long-term investigations built on a number of FOIA requests over time.”

“FOIA terrorist” Jason Leopold has big issues with the approach. “It would absolutely hurt journalists’ ability to report on documents they obtained through a FOIA request if the government agency is going to immediately make records available to the public,” writes the Vice News reporter via e-mail. Leopold has already experienced the burn of joint release, he says, after requesting information on Guantanamo Bay. The documents were posted on the U.S. Southern Command’s Web site. “I lost the ability to exclusively report on the material even though I put in all of the work filing the requests,” he notes.

While I do sympathize with some of their concerns, I'm not all that impressed with the idea that public documents should somehow be considered proprietary, even when taking into consideration the effort made to obtain them. This argument basically boils down to journalists staking claims on public records, turning a government transparency tool into a scoop-generation device.

There's a downside to this proposed release system, but "losing" this "exclusivity" isn't part of it. Just because everyone will have access to the same documents at roughly the same time doesn't diminish the value of knowledgeable interpretations of the released information, especially if provided by the person who knew what to ask for and has considerable expertise on the subject matter.

What's more concerning is what the government is basically asking of FOIA requesters, while giving them very little in return. It's asking requesters to take the hit financially for the good of the nation -- a burden the government should be bearing, not members of the public. If requested documents qualify for the government's new "release to one, release to all" policy, then all associated fees should be waived -- no matter who is requesting them. The FOIA fee exemption applies to documents released to the public, rather than for commercial reasons. If the government is posting responsive documents "for all," even the most commercial of requesters should have all fees waived, no matter how many expenses are incurred fulfilling the request. (That the government even charges fees for public documents is still absurd, but for the sake of this argument, we'll pretend it's legit.)

More concerning is how often the government ties up FOIA requesters in litigation. This can generate significant expenses for the requester, who will never have the "unlimited" funds to battle tenaciously unresponsive agencies. It's a bit rich for the government to drag requesters through court, only to deny them whatever small financial benefits they may have received from "exclusivity" by dumping the documents into the public domain at the same time.

In addition, the government's more proactive approach will need to be watched closely. One method used to shake loose additional documents covering the same subject matter is to file multiple FOIA requests. If the government considers a single response to be final word on a particular subject, this new era of "transparency" will forever be burdened by the addition of scare quotes. It's well-known that certain agencies will knowingly perform incomplete/incomprehensive searches if they feel they can get away with it. When another request comes along looking for documents covering the same subject matter as a previous request (but with different search parameters), agencies may just point to existing online releases, rather than perform additional/more comprehensive searches that might result in new responsive documents.

Ultimately, the policy change will be a win for the greater public. A more transparent government has greater value than the perceived "exclusivity" of documents requested by media members. Hopefully, this new openness will trickle down to the many news outlets that still believe legal filings should only be quoted, but never posted where others (including competitors) can freely access them. There's a reason we include as many filings as possible when covering stories. There's no "exclusivity" in public records.

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Filed Under: foia, journalism, transparency

28 Comments

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BentFranklin (profile), 14 Jul 2015 @ 9:09pm

Those journalists can still try for exclusivity in their reportage.
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Anonymous Coward, 14 Jul 2015 @ 11:13pm

Re:
Journalists can compete on the quality and depth of analysis too.
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MDT (profile), 14 Jul 2015 @ 11:49pm

Less about transparency, and more about stopping people from pasting together the entire document...
This is almost certainly less about transparency and more about being able to redact once and not have to worry about different people redacting the same document in different ways and thus revealing the entire document after 2-3 requests.

Never attribute to reason and good sense what can be attributed to paranoia and general desire to release the absolute minimum amount of data required.
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Anonymous Coward, 15 Jul 2015 @ 12:32am

Re: Less about transparency, and more about stopping people from pasting together the entire document...
I was thinking that if they can no longer argue 'mosaic theory' then maybe they would take a more nuanced approach to how they apply the black marker. In retrospect, I think this is unlikely, and that MDT is correct.

Instead, I think that this provides even more reason to redact heavily: take the broadest FOIA request available on a given topic, squeeze in every document it can possibly argue is responsive, redact as much as possible back to the page numbers, and file that as the response.

Then, any time somebody wants to take a more nuanced approach in the hope of actually gleaning detail, the organisation can argue they won't be addressing new FOIA requests as they've already addressed the topic and responded 'fully'.
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toyotabedzrock (profile), 15 Jul 2015 @ 12:53am

I fear the funding for journalism would dry up without a compromise here.
Maybe a set delay after the documents are returned, a few months or maybe a week after the story was published?
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Anonymous Coward, 15 Jul 2015 @ 1:33am

Re:
As it well should with public statements such as these.

"I lost the ability to exclusively report on the material even though I put in all of the work filing the requests"

How can any upstanding journalist even think to say anything like this in public? Also reporting shouldn't depend on the information being reported being secret.

Also if what he says is true, and he really did all the work, then without him and others like him the pool of released documents would decrease over time so it's not like his work as a reporter has lost its value.
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Anonymous Coward, 15 Jul 2015 @ 2:33am

Re:
at the time you enter your foia you should already have a research headstart on the subject, and only use the foia to fill up the missing gaps. If you still get outrun by other journalists thtat didn't take a headstart ... well hand over your press pass please :p
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Anonymous Coward, 15 Jul 2015 @ 2:43am

Response to: toyotabedzrock on Jul 15th, 2015 @ 12:53am
Imo, if they need to pay to get the documents then there should be some benefit to them. As you suggested, this is pretty easy to deal with. All you need is to design the web interface/database to only show records that are more than x days since initial release to the requester.

I'd go with a short time frame, like a week. The point is to get them out there and that is enough time for the original requester to get a story out or at least get a significant jump on anyone else.
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Ninja (profile), 15 Jul 2015 @ 4:27am

Re: Re:
That. I'd rather have a well developed, based article that's not the first to come out.
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Coyne Tibbets (profile), 15 Jul 2015 @ 5:31am

Scoop-generation device important to editors
But FOIA as a scoop-generation device is important to journalism. No corporate editor wants to be running the same story as everyone else; they want scoops, so they can drive customers to their news.

If the scoop is no longer possible, the editor will be saying, "Well then, why bother to file an FOIA request? Particularly when we must spend $x00,000 or $x million to force the government to comply with the FOIA request?"

I can't agree this is good: This is actually nothing but an evil little invention of government intended to discourage journalists from filing "nuisance" FOIA requests.
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Designerfx (profile), 15 Jul 2015 @ 6:09am

Re: Less about transparency, and more about stopping people from pasting together the entire document...
This is exactly what I thought too - a single redaction, thus less information gets out.

The government seems to enjoy being antagonistic towards those who own them.
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Anonymous Coward, 15 Jul 2015 @ 6:25am

Re: Re: Less about transparency, and more about stopping people from pasting together the entire document...
I think "mosaic theory" is as much (or more) about "forming a picture through requesting different documents" than about piecing together separately redacted copies of the same document.
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BentFranklin (profile), 15 Jul 2015 @ 6:30am

Re: Re:
I guess that's what I meant.
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Anonymous Coward, 15 Jul 2015 @ 6:37am

LMAO.

Have to hand it to journalists, they love their FOIA requests as long as their FOIA requests aren't released to the public. I find it especially hilarious that FOIA requests are not confidential and the fact that anyone can requests that same information. Journalists just don't want anyone knowing what information they are requesting.

Get over it, Journalists. Your sources may be confidential to you, but not your FOIA requests.
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Josh (profile), 15 Jul 2015 @ 6:43am

New job opportunity
Doesn't this then open up for a person to become a FOIA requester for people who want information, but don't want to spend the time/energy/money to request it?
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Anonymous Coward, 15 Jul 2015 @ 6:45am

Re: Re: Less about transparency, and more about stopping people from pasting together the entire document...
In reality, they hired a web programmer that made a little script that returns a PDF with a random number of pages and everything, including the page numbers and title redacted. Now we can have instant FOIA responses.
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Tech42 (profile), 15 Jul 2015 @ 7:28am

Here's a thought....
How about they just don't lock information away to begin with?
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Anonymous Coward, 15 Jul 2015 @ 7:29am

Re: Re:
Does this mean they should leave out the bias? Until the bias is gone, I will not watch most lamestream media news.
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Anonymous Coward, 15 Jul 2015 @ 7:32am

Sounds like the hot news idea
Sounds like they want to lock up the hot news so they can capitalize on it before anyone else. Since they spend money to get it, I can see the argument. On the other hand, it is government info, that should probably be public to begin with, I can't see granting someone exclusivity either.
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Anonymous Coward, 15 Jul 2015 @ 8:06am

Value Add
As I see it, any reporter complaining that this will harm their ability to report on a FOIA request is really just admitting that they have no real value to add once the information is released from the government.
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nasch (profile), 15 Jul 2015 @ 9:00am

Re: Scoop-generation device important to editors
I can't agree this is good: This is actually nothing but an evil little invention of government intended to discourage journalists from filing "nuisance" FOIA requests.

That's exactly what I thought of when I read this: "It's a bit rich for the government to drag requesters through court, only to deny them whatever small financial benefits they may have received from "exclusivity" by dumping the documents into the public domain at the same time." This has nothing to do with the public good*, and everything to do with discouraging FOIA requests. I also like the point about redaction above.

* which you could conclude from just the headline really
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jupiterkansas (profile), 15 Jul 2015 @ 9:21am

A better idea
Why must free information be requested? If it's free to be released, the government should simply release the documents.
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And then right back to court, 15 Jul 2015 @ 9:32am

Re: Re: Less about transparency, and more about stopping people from pasting together the entire document...
And then right back to court. Neverending circles.
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Here's a novel idea, 15 Jul 2015 @ 9:42am

The easy way
All the government really needs to do is open up their systems for the public to do their own searches. Imagine the cost savings in government workers labor time.Have an individual repeatedly doing FOIAs for turd shaped UFOs? Great! Its on their time not the departments.

Redaction might be an issue for some... but OHHHHHH! the money savings.

this world is still a really great place.
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Difster (profile), 15 Jul 2015 @ 10:07am

Why Not Both?
The original requester should get the documents first and then they should be released to the public 10 business days later. That should satisfy all involved.

Also, documents that are released should include the parameters used to retrieve them and the legal basis for what is excluded/redacted.
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Pragmatic, 16 Jul 2015 @ 5:41am

Re: Scoop-generation device important to editors
Errrmmmmm... it's the analysis and angle that makes the story. Remember the furor over the recent Planned Parenthood video release? That was made available to the public so nobody got a scoop over it, but the range of reporting on different media platforms ensured that every possible angle was covered from multiple viewpoints.

What about Wikileaks? Same thing.

The point is, nobody suffered or lost out because of lack of exclusivity.

While there may be value in exclusivity, no one ought to be allowed to own the news, particularly when that news comes from a source paid for by the public. Anyone could put any slant they liked on it if it was not made public in its raw form. No, I don't like that at all. Sorry, no exclusivity on FOIA requests. No exceptions.

Expenses can easily be reimbursed by editors, etc.
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Anonymous Coward, 18 Jul 2015 @ 8:06pm

Hate to sound like a shill, but why does no one ever acknowledge the real cost to the public to process a public records request? Everything I read says it's absurd that there should be a cost at all and that the public should get it for "free", but completely ignores the fact that the public is the one paying the government employee(s) to compile the response in the first place. So why should a reporter get to use public tax dollars (in the form of employee salaries) to further his/her own career?
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nasch (profile), 18 Jul 2015 @ 8:36pm

Re:
So why should a reporter get to use public tax dollars (in the form of employee salaries) to further his/her own career?

To me the question is how best to promote transparency, openness, and accountability (I know, three words that are anathema to government). If public funding and public releases of FOIA responses is the best way, then we should do that regardless of who wants to further their careers. If private payment and private release is best, then fine. But private payment with public release seems the worst possible solution - which is presumably why the government wants to do it that way.
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