Jason Leopold has so thoroughly aggravated naturally-secretive government agencies that he has earned the nickname “FOIA terrorist.” He routinely files two dozen FOIA requests a week, along with MDRs (Mandatory Declassification Reviews), which force the government to more closely examine documents it has previously withheld in full.
In the course of these activities, Leopold has also filed numerous FOIA lawsuits against government agencies for withholding documents, not performing thorough searches or exceeding the statutory time limits for responses.
Several government agencies hate him. One government agency hates him so much it offered him a one-time deal bordering on illegality.
In his testimony in front of the House Committee on Oversight and Government Reform, Leopold gave up both the agency and its questionable offer.
Leopold: The Office of Net Assessment (ONA) is the Pentagon’s in-house think tank. They spend millions and millions of dollars putting together reports — reports that they contract out about perhaps some futuristic warfare, or what the situation in the Middle East is going to look like with regards to oil. I asked for those reports. I filed a FOIA request; they refused to comply with my FOIA request. They said it was too broad. I narrowed it, they still said it was too broad. I sued them. Recently they said that ‘We’ll give you some documents as long as you promise to never file a FOIA request again and don’t have anyone else file a FOIA request on your behalf.’
Rep. Mark DeSaulnier (D-Calif.): How is that legal?
Leopold: I don’t know but they put this in writing and I’m really looking forward to the day when I write this story up.
This is what one agency was prepared to do just to keep Leopold out of its file cabinets.
But it’s not just overt actions like these. It’s the little things agencies do to frustrate FOIA requesters, especially journalists like Leopold who are looking for timely information rather than just information. In his testimony, Leopold points out that agencies routinely stonewall journalists in hopes of discouraging them from making further inquiries. If they can delay a release past the point of relevance, it’s a PR win for them, especially if the information requested is less than flattering.
As you know, FOIA requires an agency to make a determination on releasing records within 20 business days. An extension of 10 business days is available in “unusual circumstances.” I have submitted thousands of FOIA requests to dozens of different agencies, and in my experience, fewer than one percent of my requests have been decided within the timeframe required by FOIA. My colleagues have had similar experiences.
I routinely experience delays of several years…
Case in point: Leopold’s FOIA request for information related to incoming DOJ head Loretta Lynch.
My request to the Executive Office of the United States Attorneys for records about Loretta Lynch illustrates the problems that investigative journalists face in using FOIA. I submitted my request the day that Loretta Lynch’s nomination was announced by President Obama. I sought expedited processing because the records I was requesting relate to Lynch’s performance of her duties as United States Attorney for the Eastern District of New York. When the agency did not rule on my request for expedited processing within the time period allowed by FOIA, I immediately filed suit. The agency conceded that the topic of my request is a “matter of widespread and exceptional interest,” but insisted that it should not have to even begin releasing records for several months. My attorney filed several emergency motions requesting that the Department of Justice process my request and produce records before Lynch’s confirmation hearing, but the judge presiding over the case indicated that he would not have time to rule on the motions for more than a month.
After Lynch was confirmed, my request for expedited treatment became moot. To date, the agency has still not processed the documents I requested.
As he points out, this sort of behavior achieves exactly what the foot-dragging agencies hope it will: it discourages journalists from using FOIA requests in their news gathering. And every journalist persuaded to look elsewhere is one more chance to keep information out of the public’s hands.
Then there are the loopholes. Some of these abused exemptions have been addressed by amendments to FOIA laws, but there are still plenty of exploitable areas.
Congress deliberately chose the words “records or information” when it amended Exemption 7 in 1974. Prior to that time, investigatory files compiled for law enforcement purposes were exempt. The problem was that agencies could simply place documents that they wanted to withhold from disclosure inside an investigatory file, and then treat the document as exempted simply because of its location. The 1974 amendment was designed to fix this problem by eliminating the blanket exemption for government records simply because they were found in investigatory files compiled for law enforcement purposes.
Notwithstanding Congress’s clear intention and the plain language of FOIA after the 1974 amendment, the FBI continues to withhold information where the record requested “is located in an investigative file which is exempt from disclosure pursuant to 5 U.S.C. 552(b)(7)(A)” (emphasis added). I have received dozens of denial letters from the FBI based on this erroneous interpretation of FOIA, and the Department of Justice’s Office of Information Policy has affirmed the FBI’s decision in every administrative appeal I have filed. The FBI has not defended its position in court, but instead conducts a new review applying the proper standard once litigation has commenced. As a result, the issue becomes moot.
According to Leopold, the worst agencies to deal with in terms of FOIA requests are the usual suspects: the FBI, the DOJ and the US Southern Command. Thanks to Snowden’s prompting of additional interest in the “intelligence community,” the NSA has been added to that list.
The oversight committee has its eye on FOIA reform and the government could use a swift kick right in the exemptions. But whether or not a so-called “terrorist’s” assertions about near-bribes and SOP stonewalling will push it in that direction remains to be seen.