Journalists Want Transparency, But Not Right Away

Reporters clash with open government advocates over the merits of a new FOIA policy.

It didn't take long for journalists to criticize the flaw -- for them -- in the federal government's new pilot program on making public all responses to Freedom of Information Act requests. It didn't take much longer for open government advocates to suggest the reporters were putting their interests ahead of the public's.

"Get this," tweeted Erik Wemple, media critic at The Washington Post. "Federal government is implementing a FOIA reform that could actually hurt journos."

"Evil genius," tweeted Radley Balko, who covers criminal justice, the drug war and civil liberties for The Washington Post. "The federal government has figured out a way to undermine transparency by being more transparent."

"The government is now giving away your FOIA scoops," warned the Poynter Institute, a nonprofit journalism school.

Not everyone is buying this line of thinking.

"Bet government workers are having good chuckle over journos who don't want their FOIA responses made public," tweeted Seth Hall, a software engineer in San Diego. "Sad betrayal of public by journos IMO."

The pilot program will follow a "release to one, release to all" policy at seven federal agencies over the next six months. Essentially, that means the material released under a FOIA request that one media outlet may have pushed for months will be made public at the same time the outlet receives it. Some journalists suggested a small head start for the original FOIA requester would be fair.

But Hall, for instance, argued against "any unreasonable delay" in releasing such information to the public, holding that the public interest in rapid disclosure of source data transcends the journalists' interest in getting a scoop. In Hall's view, since the taxpayers paid for the work to respond to reporters' FOIA requests, the taxpayers should be able to see those responses with no delay. "I would consider all unreasonable exceptions or delays to FOIA to be fundamentally harmful to public interest," he tweeted.

Former journalist Lisette Garcia, an open government activist who now runs the FOIA Resource Center in Washington, D.C., wasn't impressed with the argument against the pilot program either.

"Any media outlet seeking delays to protect scoops shows it cares more about profits than about the communities they purport to inform," she said in an interview with The Huffington Post.

"On the basis of this position alone, any media outlet lobbying for an embargo carveout should be denied FOIA fee waivers going forward since the basis for the waiver is their promise to disseminate widely and rapidly," Garcia said. "What could be faster than right now?"

Steven Rich, an database editor at The Washington Post, expressed some concern about the impact of this policy on journalists working on longer investigations.

Rich tweeted that the new FOIA policy "would have killed portions of our asset forfeiture investigation," a major project that the Post published last year.

Journalists, he said, "might fight for months for something and someone else might benefit first." If other outlets can scoop portions of a rival's long-running investigation as a result of the government's FOIA disclosures, he warned, editors may choose to abandon some investigative reporting.

Jason Leopold, a reporter at Vice News who has broken major stories based on FOIA requests, supported the pilot program but agreed that immediate disclosure could be an issue for him.

"[I am] not opposed to releasing it all," tweeted Leopold. "I'd just like lead time in reporting docs I worked to obtain. I already post all docs w/my [reporting]."

Charlie Savage, an investigative journalist at The New York Times, said the same. "Release to all but give the requester a head start. A week would be nice," he tweeted.

"A modest delay gives requester and plaintiff time to read documents and write an exclusive article about them, preserving the incentive to go to time and effort," explained Savage in a follow-up message.

Garcia was not particularly sympathetic to these concerns.

"Reporters who complain that the risk of being scooped will eliminate all incentive to engage in journalism are apparently unaware that crimes happen all the time in broad daylight without any interruption in coverage," she said. "Viewers choose to count on sources they can consistently trust to be first and accurate."

Carl Malamud, one of the nation's pre-eminent open government advocates, was similarly unmoved.

Nate Jones, director of the Freedom of Information Act Project at the National Security Archive, agreed with the idea that journalists should get lead time on releases but cautioned in an interview with Fedscoop that "it's the Freedom of Information Act, not the Get a Good Scoop Act."

"[I] wish the pilot announcement would have explicitly stated lead time would be built in," tweeted Jones, who went on to point out to journalists upset about the "good new proactive FOIA pilot" that their requests may already be online in the form of FOIA logs.

Open government advocates have hailed the news, with the Sunlight Foundation expressing hope that the pilot program means the Obama administration "is still serious about improving public access to government information." It wrote in a blog post Monday:

The Sunlight Foundation has supported legislation currently being considered in both the House and the Senate that would modernize and improve the FOIA in other important ways, but neither proposal would require public disclosure of responses after just one request instead of three. Accordingly, this new policy could actually improve FOIA practices beyond what is currently being considered by Congress, if the pilot is successful.

Rick Blum, coordinator of the Sunshine in Government Initiative at the Reporters Committee for Freedom of the Press, blogged that the pilot program "should do more good than harm for transparency and accountability in government."

While he was sensitive to the concerns expressed by journalists, Blum ultimately concluded that "the media benefits when agencies makes available documents previously requested." He explained:

FOIA has for decades suffered from long delays, processing headaches, and a belief that agencies can find a way to delay or not release records when they do not want to release information.

We’ve heard some journalists complain agency X has played games upon receiving an adversarial request by releasing embarrassing documents online at the moment the agency releases the documents to the requesting journalist, thereby blunting the impact of a negative story. A consistent approach to online posting eliminates the discretion, and therefore the ability to abuse that discretion, when an agency is tempted to play such games.

Further, the original FOIA requester will in many cases know the context of the story best and should be able to quickly move an explanatory story before another colleague can put it together.

The bottom line is that under the FOIA statute, journalists don't have to be treated differently.

"The 'equal access to all' policy is most welcome by the FOIA Resource Center," Garcia said. "Any editor who disagrees is apparently unfamiliar with judicial precedent establishing that, in America, there is no proprietary interest in facts and sweat of the brow will only take you so far. If you want to be best, from now on, you'll need to be first and correct, not just the most clever."

Next year, when the pilot program comes to an end, the Justice Department and the federal FOIA ombudsman at the Office of Government Information Services will have to decide where the public interest lies.

"Make it public, I say," tweeted Charles Ornstein, an investigative journalist at ProPublica. "Open government is open government."

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