from the obey-the-law,-doj dept
We’ve been writing about journalist Jason Leopold for many years, either focused on his FOIA adventures or the amazing (and important) scoops he achieves through them. If you look back through our archives, you’ll see that Leopold knows how to use freedom of information laws basically better than anyone, and thus wields them effectively to help better inform the public of just what our government is up to. That, of course, is the entire point of freedom of information laws in the first place. Our government is supposed to be transparent with us over what they do. FOIA makes that possible, and it only works when it’s used. And Leopold uses it.
Years back he was called a “FOIA terrorist” by a government official, which is just laughable no matter how you look at it. But Leopold has adopted the moniker as his own now.
One thing that he’s clearly learned is that when the government stalls and denies, it often makes the most sense to just sue. Under the federal FOIA, agencies have a very short term before they need to respond, and they almost never actually comply with that (often taking years, rather than weeks). At some point, you just need to sue to force the matter.
So, that’s what happened in this case, where he sued the DOJ back in April 2021 due to their FOIA shenanigans. I won’t go into all of the details, but Leopold was seeking information on the January 6th insurrection, and what was happening inside the DOJ following that date. He filed a FOIA with the Executive Office of Immigration Review. There were some disagreements over which agencies/departments he should be filing the FOIA requests over, but eventually the government handed over some documents he had requested (again, which belong to the public). Leopold’s lawyer asked for fees over having to have filed the lawsuit, and it appears that the EOIR and the DOJ are being incredibly and ridiculously petty about it, and filed an opposition to the fee request by just attacking Leopold personally.
It’s a really bad look for the government to go after a journalist for literally using the law for what it’s supposed to be used for (and for which the government has resisted obeying that law).
The filing opens by saying that they didn’t even have anything interesting to hand over to him in response to the FOIA. Basically, they seem very put out that they had to obey our FOIA law and give Leopold what he asked for. That it wasn’t something juicy does not matter. I don’t see anywhere in FOIA where it says that the government only has to hand over stuff that makes for juicy scoops. The way that journalists like Leopold find the important stories is by requesting lots of documents and figuring out what’s actually newsworthy. I mean, this entire paragraph seems unbecoming for the DOJ to file:
EOIR had initially withheld only one e-mail chain under Exemption 5. But after Plaintiffs pressed the agency, EOIR relented for the sake of transparency and judicial and party economy and determined to make a discretionary release of the requested material. Unsurprisingly, given EOIR’s role, the record did not include information of great social value. To the contrary, it included discussion drafts of an e-mail to EOIR personnel in the Washington, DC area telling them to go home early because of the curfew Mayor Bowser had imposed on January 6, 2021. It is no different than the type of e-mail chain that many managers throughout the region may have sent to employees on that day. Instead of contributing something valuable to the public, the released e-mail chain provides Plaintiffs and the public little more than the satisfaction of reviewing the emails of EOIR leadership.
The DOJ shouldn’t be getting snarky about the contents of the document they were required to hand over by law. But the filing gets worse.
Despite accomplishing almost nothing by filing this suit against EOIR, Plaintiffs seek to have the taxpayer finance it.
That framing is so obnoxious. The taxpayers pay you to do your job, DOJ and EOIR. And you didn’t. And that’s why Leopold had to file the FOIA request in the first place. Don’t try to pretend that this is some sort of scam on the taxpayer.
The DOJ makes its various legal arguments for why it believes the fee request is improper, but can’t resist oddly petty personal attacks on Leopold. It keeps insisting that it was crazy of Leopold to seek records from EOIR regarding January 6th, but as Leopold explains he’d heard rumors of numerous people within the DOJ — including those with no obvious connection to everything that was happening — were either planning to resign or to publicly side with Donald Trump. Given that, it makes perfect sense to send the FOIA broadly to many different DOJ divisions. But the DOJ just seems really mad that he sent one to EOIR.
But then it basically says that the DOJ shouldn’t pay his legal fees… because he sends so many FOIA requests:
Indeed, as this Court has explained, “almost a quarter of th[is] district’s entire civil docket” is comprised of FOIA cases and FOIA plaintiffs like Jason Leopold and Buzzfeed, Inc. “create much of that backlog.” Am. Ctr. for L. and Just. v. U.S. Dep’t of Homeland Security, 573 F. Supp. 3d 78, 83 (D.D.C. 2021). Jason Leopold self-identifies as the “FOIA Terrorist,” see https://twitter.com/JasonLeopold (bio) (Sept. 19, 2022), and one report calls him “the most active individual FOIA litigator in the United States today,” https://foiaproject.org/2021/01/13/foialitigators2020/. According to the report, Leopold is second only to the New York Times in total cases filed by media plaintiffs between 2001 and 2020, even though he only started filing cases in 2012.
Again, this is Leopold’s job. He’s an investigative journalist, who has been successfully using FOIA to bring tremendous transparency about our government’s actions to the people they, in theory, represent. Complaining about the fact that he’s good at his job and that the government is bad at its job of responding to FOIA requests is quite an argument.
And, really, it’s the height of arrogance for the DOJ to complain that so many FOIA cases are filed in this court. If the government did its job and responded to FOIA requests fully and in a timely manner, that wouldn’t happen. Don’t blame Leopold for your own failures, US government.
The DOJ then argues that it shouldn’t have to pay legal fees… because the document it eventually turned over wasn’t that newsworthy. But what kind of standard is that? You only get legal fees if you happen to find the government was hiding the really newsworthy stuff? That makes no sense at all, and actually discourages FOIA requests and transparency by saying that (1) the gov’t will withhold documents, and (2) then make it more expensive for you to force them to comply with the law… That can’t be how this works.
Plaintiffs do not provide a single example of how the information demanded was used. And EOIR cannot fathom what is newsworthy about the those e-mails.
The DOJ also argues that because Buzzfeed (who Leopold worked for at the time of the FOIA request) is a bigger media organization, it doesn’t need legal fees:
Buzzfeed Inc. is a for-profit organization reporting that it delivers significant profitability to its investors from its advertising, content, commerce, and other revenue. See Buzzfeed Inc. Investor Presentation, August 2022, https://investors.buzzfeed.com/static-files/740e1de3-921f-4e48-9f51-61bc177fa38f
This whole thing seems petty. All of it could have been avoided if the government had just done what the law requires in the first place. The DOJ seems to be demanding all sorts of passes that it would be unlikely to offer anyone if the roles were somehow flipped.