cross-posted at Letters Blogatory
Short story: the government says my FOIA requests are not entitled to be processed as quickly as a newspaper reporter’s requests, because I write on a blog. Read on!
A quick recap of my FOIA case seeking information about lobbying connected with the Chevron/Ecuador dispute. In August 2011 I submitted my FOIA request to the State Department. Nearly two years later, having had no substantive response (the statute gives the government twenty days to make its determination about whether to comply with a request), I sued the State Department. The lawsuit has led to some interesting findings, for example, my conclusion that the contacts between Chevron and the State Department concerning Ecuador took place at a very high level, including Chevron’s CEO and the Deputy Secretary of State. The Republic of Ecuador cited my results in some detail in a paper it submitted to the arbitral tribunal in the BIT arbitration brought by Chevron.
However, as I noted back in April, the government had refused to produce some documents until it received clearance from an unnamed third party that had submitted them to the Department. Any guesses about who that third party is? Anyway, I submitted a second FOIA request asking the Department to provide records identifying the mysterious third party and to provide correspondence between the Department and the third party relating to my request. I also asked for expedited consideration on the grounds that I am a news media requester. Frankly, given that I had to wait almost two years and file a lawsuit to get the ball rolling on my first FOIA request, it would have been utterly foolish not to seek expedited treatment! The government denied my request for expedition, and I filed an administrative appeal. The Department has now denied that appeal on grounds that should concern everyone who gets at least some of their news online:
You also requested to be placed in “News Media” instead of the “All Other” requester category. Your basis for this request is because you publish information to a blog. A blog is generally considered a personal site and is used to post a topic to solicit public opinion. Therefore, based upon the information you provided, it does not appear that your request nor appeal meet the criteria to warrant a change of your requester category from “All Other” to “News Media.” You have not demonstrated an ability to disseminate the information to the public at large.
Them’s fightin’ words! The Department seems to be taking almost a per se position with regard to blogs, and in my view it disregarded the significant amount of detail I provided in my appeal regarding my coverage.
I’m a practical guy. I’m scheduled to speak with the government’s lawyer in a few days, and if I can get an agreement to get the documents I’ve requested produced in a timely way, then I’ll take it. But if not, then I do want to challenge the Department’s finding, which I think is ridiculous in 2014.
Jason Leopold, “FOIA Terrorist,” shares his transparency secrets This is an interview; the links below are to articles about him. I believe he’s also written a column about the specific techniques he uses, but I couldn’t find it right away.
Jason Leopold Talks Forensic Journalism
The Secret to Getting Top-Secret Secrets
Thanks, Kirth!
Sorry, but I would.
The sheer number of blogs, many of them incredibly detailed and with a readership of zero, begs for different treatment.
I’d be against them saying no, but a longer response time seems pretty reasonable.
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And I might grant the request for expedition based on that previous unfair delay, but in and of itself, I wouldn’t.
The statute requires a response in 20 days, whether or not the requester is a reporter.
The government should look at these things on a case-by-case basis and not apply a per se rule that ignores the reality of new gathering today. Many blogs will not meet the test. Some will, and should.
There are MILLIONS of blogs.
And for the ones that do, case-by-case analysis of the requests is necessary anyway. So I don’t see why Ted’s proposal is so unreasonable.
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But it’s also reasonable for the government to treat blogs differently. It’s not a binary situation.
How are freelancers treated? Do they really get replies in 20 days?
Freelancers can qualify for expedited treatment.
it depends who they’re freelancing for. I assume a stringer for the NY Times, who gets paid by the piece (rather than on salary), would qualify for expedited treatment?
It’s all online now. So it’s just a blog, right? Which means other blogs should have a shot at being treated however it is, depending on their actual ability to disseminate news.
The question, at the end of the day, is, “are you really a journalist who is making news available to the public, or are you sitting in a bathrobe in your folks’ basement?” You know what I mean.
making news available to the public, wearing a bathrobe – and a bow-tie?
The image I now have in my head is a cross between Hugh Hefner and Tucker Carlson:)
I had no intention of raising such a specter I was thinking more along the lines of Jimmy Olsen..
No one is asking the government to look at all blogs, but spending two minutes to see if a blogger making a request is doing real reporting or not isn’t a high burden. Some may define that as “doing one’s job.”
In any case, the government should reply in 20 days or less for everyone, as noted above.
I would’t automatically qualify as a news media requester if I published a hard-copy newsletter, right?
n/t
Seems to me that I as an individual citizen of the United States should be able to file a FOIA request and have it processed in the same manner as from a news organization.
Name-brand news organizations have been doing such an awful job of bringing information to the public, I think they’ve given up any claim to special privilege in getting information from the government.
If you’re making the news available to the public, then I agree. The question should be functional, not formal.
If I need non-classified information from the government for my own purposes I should be able to get that too.
But it’s a lower priority–appropriately, in my view.
would I.F. Stone say?