Pentagon Offered 'FOIA Terrorist' Jason Leopold A Stack Of Documents To Just Shut Up And Go Away Forever

from the citing-exemption-'for-the-love-of-god-leave-us-alone'-[(b)404] dept

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.

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Comments on “Pentagon Offered 'FOIA Terrorist' Jason Leopold A Stack Of Documents To Just Shut Up And Go Away Forever”

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10 Comments
Mason Wheeler (profile) says:

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.

I hope so. Mr. Leopold is fighting the good fight, and there are times that various parts of the government need to be reminded that they work for We The People.

GEMont (profile) says:

Re: Re:

” ….various parts of the government need to be reminded that they work for We The People.”

How can you even think this is still true, after reading article after article describing the myriad ways and means that the USG uses to avoid working for the American Public?

I think we can easily assume that this is another popular social myth designed to make Americans feel secure and empowered, while the ranchers fleece the sheep.

Anonymous Coward says:

Re: Re:

The point of the process is to not make documents available, its to give the illusion to the uncaring voting public who will never use the process that things are being kept transperant, while allowing them to delay and stonewall important information until nobody cares anymore.

If the agencies actually wanted the information to be free to be released, they’d at the very least comply with requests, and frankly, the fact that these people can say ‘Look, we’ll throw a bunch of stuff at you if you STOP utilizing a perfectly legal process for government transperancy’ is disgusting.

Its not even the fact that they aren’t complying with the law that bothers me about this anymore, it’s how childishly impudent they’re being about it! ‘Here, have this and stop asking for stuff!’ is what I expect a neglectful parent to tell their kid in the candy store…

Anonymous Coward says:

Re: Re:

If the information is free to be released, then why must it be requested? Why aren’t they simply placed in a document repository for anyone to view?

In some cases, the information is not entirely free to be released. If it requires any redactions at all, it is arguably more efficient for the government not to create the publicly-available redacted version until someone expresses an interest in it.

For documents that do not need redaction, they could be preemptively published, but they are often stored in a format that makes publishing enough trouble that preemptively publishing everything is not a good use of time. There is a good argument to be made that maybe they should not be using formats that are so hard to publish, but that is a separate discussion.

Anonymous Coward says:

Huh???

…US Southern Command…

So the other unified commands are good about FOIA requests? (I can understand SOCOM (Special Ops) stonewalling but they would be the only ones.) SOUTHCOM is responsible for Central & South America, so why would these areas merit stonewalling such requests? Countries in these areas might be economic threats to the US but they sure aren’t military threats.

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