Journalists Using Law to Pull for Government Transparency

While newsrooms are finding their budgets lighter and lighter, some news outlets including Hearst Corp. and the Associated Press are still spending more money on lawyers by bringing the fight for information in-house. Most often, news outlets outsource their legal battles to big law firms who handle each issue on retainer. However, as the New York Times reports, companies like Hearst and AP have taken to hiring in-house counsel to tackle the issue of government transparency.

According to the article, last year the AP appealed more than 40 denied Freedom of Information Act Requests (FOIA) and 24 of those were resolved successfully. The NYTimes parent company Hearst, filed 18 FOIA lawsuits last year, the most ever for the news company. Upon the resolution of a successful FOIA request or litigation, Hearst and AP make the information available either through reporting on specific stories or releasing the thousands of pages of documents they received online. The EFF pursues a similar route with its FOIA Litigation for Accountable Government.

Mired in the paranoia and fear of the Cold War, Congress passed the FOIA (5 U.S.C. 552)in 1966 reaffirming the concept of government transparency and a well informed citizenry. However, the Act contained nine exemptions to protect things like “national defense,” “trade secrets,” and “data concerning wells.” The Act was later strengthened by the Privacy Act of 1974 (5 U.S.C. 552a) which gave a citizen the right to view any report kept by the government on oneself, subject to some restrictions.

One of the most compelling things about the FOIA is that “any person” can fill one out. This includes citizens of the U.S., foreign nationals, corporations, and organizations. Furthermore, a one’s motivation for completing the FOIA request never has to be disclosed to the government agency.

However, the Act has been criticized for its scope and the government’s ease of further restriction the legislation. The Bush Administration took numerous efforts to hinder citizens’ access to FOIA through legislation and executive orders. Most notably, Bush’s Executive Order 13233 restricted access to his presidential records for twelve months after the end of his presidency, likely in anticipation of any litigation against his administration for war crimes. This order was later revoked by Obama’s Executive Order 13489.

The use of FOIA by news agencies illustrates the effectiveness of a well-equipped, well-organized citizenry fighting for information. And while big outlets like Hearst and the AP have the cash to pay the attorneys, smaller newspapers across the country are finding it hard to justify the expense. As the New York Times reported, community papers aren’t able to commit the time and resources to FOIA: “They are all saying access litigation is really struggling,” said Ms. Dalglish. “I think we’re in trouble. I know we’re in trouble.”

What does this mean for the media bar? More solicited pro bono work from newspapers.

Make your own information request using the FOIA Request Generator from RCFP.org.

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