NSA Tries To Stonewall Jason Leopold's Requests Because He's A 'FOIA Terrorist' Who's Paid To 'Deluge Agencies' With Requests

Legal Issues

from the barely-partially-true dept

Journalist Jason Leopold (currently in residence at Buzzfeed) has been given the nickname “FOIA terrorist” for his numerous requests and almost as numerous FOIA lawsuits. The government has taken notice of Leopold’s activity. The Pentagon once offered Leopold a stack of documents in exchange for him leaving it alone. (He declined.) The FBI played keepaway with James Comey talking points, telling Leopold they were all exempt from disclosure. This obviously wasn’t true, as these same talking points had been handed over to Mike Masnick by the agency months prior to the bogus denial it gave Leopold.

Now, it’s the NSA using Leopold’s “FOIA terrorist” nickname against him. (This is weird because federal employees gave Leopold the “terrorist” nickname. He didn’t come up with it himself.) In Leopold’s ongoing FOIA lawsuit against the agency, the NSA has asked for an “Open America” stay. What this would do is push Leopold’s request back in line with the others the NSA has received. The agency argues that Leopold’s decision to file a lawsuit over the agency’s lack of a timely response shouldn’t give his request precedence over FOIA requests that arrived before his did.

The agency points out its FOIA workload has increased significantly since “a former NSA contractor began a series of unprecedented, unauthorized, and unlawful disclosures” in 2013. The agency still processes thousands of FOIA requests a year, but it’s unable to keep up with the increase in FOIA traffic.

What the NSA wants is more time. Three of Leopold’s requests — two of them dating back to 2014 — are at the center of this lawsuit. The NSA wants to prevent Leopold’s lawsuit from letting him jump the queue. From the filing [PDF]:

Given NSA’s limited number of FOIA personnel, if the Court orders defendant to process plaintiff’s requests at a rate greater than 400 pages per month, the individuals who filed the 1,603 pending requests in NSA’s current backlog, many of which were filed well before plaintiff’s, will be disadvantaged.

It also wants to process no more than 400 pages per month for him, despite there being more than 20,000 responsive pages.

In defense of its attempt to keep Leopold from litigating his way to the front of the line (and for delaying its already-delayed responses even further), the NSA attempts to use Leopold’s press bio against him.

[P]laintiff Jason Leopold is “a self-styled ‘FOIA terrorist’” who, according to a recent press release by his new employer, BuzzFeed.com, makes his living “by deluging the federal government with Freedom of Information Act requests.” He proudly claims to have “brought more FOIA lawsuits by himself than any other news organization except the New York Times.”

Again, Leopold may be a “self-styled” FOIA enthusiast, but the government called him a “terrorist” first. And, again, the number of lawsuits means nothing. If the government replied in a more timely fashion, withheld fewer documents, and generally made a better effort at being transparent, it’s unlikely Leopold would be chasing every FOIA request with a FOIA lawsuit.

While I agree with the NSA FOIA requesters shouldn’t be able to use litigation to move their requests ahead of others (who may not have the financial means to engage in litigation), the fact is without litigation, most government responses would be delayed indefinitely. Agencies are statutorily required to respond within a certain time period. After that time has elapsed, the only option in most cases is to bring a lawsuit. Periodically reminding the agency about your outstanding request has almost zero motivational effect.

Handing out litigation stays doesn’t mean requesters who haven’t filed a lawsuit will be receiving faster responses. All it means is litigating requesters will be receiving their responses more slowly. The NSA’s inference that Leopold’s requests are somehow less legit simply because there are so many of them is bogus. I’m sure Leopold would rather have faster request fulfillment than the double-duty of tracking dozens of open requests and multiple concurrent FOIA lawsuits.

If the problem is staffing, there are solutions available — but agencies have to want to be more responsive, not just shrug their way through FOIA lawsuit filings complaining about how impossible it is to keep up. They have direct lines to the legislators that pass their budgets. If they really wanted to do more, FOIA-wise, they’d have asked for more help already.

Filed Under: doj, foia, foia terrorist, jason leopold, nsa