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How a Proposed Rule to Increase Access to FOIA Documents May Actually Undermine Transparency

April 25, 2019

Journalists already take advantage of the fact that FOIA requests themselves are public information. “Meta” applications of FOIA enable an individual to obtain a log of all requests received and processed by an agency in a given period. The log is like a guest book: each time an agency receives a request, it notes the requestor’s name; the date of the request; and a description of the requested records.

Even if the proposed new rule is finalized, journalists may still be able to take advantage of the myriad benefits of FOIA logs. First, the logs draw contours on an otherwise limitless universe of requestable documents. So vast and unknowable are the inner workings of an agency, a FOIA log helps us understand the records retained by an agency by revealing documents released to other requestors. Second, FOIA logs can help a requestor obtain information quickly and cheaply. Generally, when someone requests a record that has previously been released to another requestor, agencies process the subsequent request more rapidly and for free. A FOIA log usually provides a unique identifier for reach previous request: by citing this code in a request, a requestor simplifies and expedites the process. Finally, an agency’s responsiveness to requests for a FOIA log may provide useful information that informs future interactions with the agency. Federal agencies are required to keep FOIA logs. If a request for a FOIA log returns no responsive documents, it implies that the agency does not track incoming FOIA requests, indicating a lack of organization.

Reporters who use FOIA logs can encounter three difficulties. First, like any records request, the FOIA request for a log may be subject to long delays and non-responsiveness. Second, the logs may be produced in a hard-copy paper format or as non-searchable PDFs. Third, agencies frequently redact the identifies of requestors from FOIA logs, invoking Exemption 6, which protects the privacy of personal information contained in government records. Yet when withholdings on this rationale are challenged in the courts, litigants routinely win. e. See, e.g.: Kwoka v. IRS, No. 17-CV-1157 (DLF), 2018 WL 4681000, at *4 (D.D.C. Sept. 28, 2018) (holding that Exemption 6 does not “justif[y] a blanket withholding of Kwoka’s request for FOIA requesters’ names and organizational affiliations.”); Holland v. CIA, CIV. A. 92-1233, 1992 WL 233820, 16 (D.D.C. Aug. 31, 1992) (holding that a researcher requesting records with government assistance is similar to a FOIA requester whose identity is not protected by Exemption 6).

But, while journalists can currently submit duplicate requests by examining FOIA logs, the “Release to One, Release to All” practice would raise the specter of journalistic scooping in a way that the status quo does not. Currently, even though journalists can use FOIA logs to determine which documents have been requested by other publications, and even though they can obtain those same documents, there is a lag. The initial requester gets a head start against her competitors. Under the new rule, the lag would disappear, temporally equalizing access for requesters and non-requesters. The value of the documents to the requesting newspaper might be extinguished if another publication reviews the documents, identifies newsworthy information, and beats the original requesting newspaper to the story.

Journalists have argued for their proprietary interests in released documents, advocating for a modification to the proposed rule to incorporate a delayed release that mirrors the lag for FOIA-log duplicators. Jason Leopold, a BuzzFeed investigative reporter whose work relies heavily on FOIA, stated that the rule “basically kills long investigations.” Steven Rich, the database editor for investigations at the Washington Post, agreed with Leopold, adding that the proposed policy “would have killed portions of [the Post’s] asset forfeiture investigation.” Leopold and Charlie Savage, a reporter for The New York Times, have both argued that requesting reporters should have a chance review the documents before the agencies publish the documents online. Savage suggests a one-week lag.

To gauge the prevalence of these concerns, the Reporters Committee for Freedom of the Press surveyed more than one hundred self-identified journalists. A majority expressed concern with the current rule proposal: approximately 60 percent said they would support the policy only if modified to include a lag period. But the report also noted that some of the surveyed journalists view the rule, even absent a lag period, as producing important benefits, including increased access to federal records for those with limited resources and the elimination of duplicative requests. Some respondents also “expressed doubt that access to records requested under FOIA alone would enable other reporters to scoop a story.”

If FOIA poses a scooping concern right now, it lies with FOIA logs and the information contained therein. The built-in lag decreases incentives to duplicate in-progress requests from other publications. The new “Release to One, Release to All” policy could upend the current journalistic ecosystem with FOIA, perhaps for the worse by demoralizing journalists’ efforts, or perhaps for the better, by equalizing access for all.