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SPECIAL REPORT:

Few Journalists Use the
Federal Freedom of Information Act

A Study by the Center for Media and Public Policy
The Heritage Foundation

By Mark Tapscott and Nicole Taylor

Prominent among American newsroom icons is the federal Freedom of Information Act, which guarantees public access to most government records. Journalists have based countless news stories on information gained through the FOIA since it became law in 1966.

Venerated as it is by journalists, however, journalists appear to be among the least frequent users of the public access law, according to a Center for Media and Public Policy analysis of 2,285 FOIA requests submitted to four federal agencies during the first six months of 2001.

Fully 40 percent of the requests were from corporations, while lawyers and individuals not identifying their employment accounted for 25 and 16 percent, respectively. Individuals representing non-profit advocacy groups submitted 8 percent of the requests. A mere 5 percent of the requests were from individuals identifying themselves as journalists.

GRAPHIC: Few Journalists Use the Federal Freedom of Information Act

The Media Center asked for copies of FOIA logs at the U.S. Departments of Education and Transportation, as well as the General Services Administration, Environmental Protection Agency and the Health Care Financing Administration (since renamed the Center for Medicare and Medicaid Services), for the period of Jan. 1, 2001, to June 15, 2001.

These federal agencies were selected because each has significant policy and budgetary responsibilities and thus would be a likely candidate for significant media attention.

The EPA, for example, is the focal point of federal environmental regulations and programs, while the Education Department is at the center of an issue that consistently tops opinion polls as the most important concern of most Americans.

Similarly, HCFA administers Medicare and Medicaid, the Transportation Department is a key player in the Smart Growth and highway safety debates and GSA is the federal government's "housekeeping agency," with a long history of corruption and mismanagement.

A total of 1,475 FOIA requests were sent to EPA during the period studied. The Education Department received 398, the Transportation Department 222 and GSA 190. Despite repeated requests, HCFA officials failed to provide the requested information.

The overall pattern of few media FOIA requests, compared to those from attorneys, businesses and non-profits, was found at all four of the agencies that responded to the Media Center's inquiry.

Only at the Transportation Department did the media's share of all FOIA requests reach double figures, at 18 percent. Next was GSA at 7 percent, the Education Department at 6 percent and finally EPA - probably the most controversial of the agencies - at 3 percent. Corporations and lawyers were first or second at all four agencies.

The paucity of journalists' FOIA requests may surprise non-journalists, especially considering that the 1966 law - as well as the many state level equivalents adopted in the years since - was pushed vigorously by news organizations and is trumpeted regularly by journalists as a significant tool in their quest to serve the "public's right to know."

Indeed, a sure way for a politician to incur media wrath is to be seen as tampering with the FOIA. Do so and protests are sure to follow, as Attorney General John Ashcroft discovered recently.

Ashcroft issued an Oct. 12 guidance memorandum to federal civil servants who process FOIA requests assuring them that the Justice Department would defend them in court if they used a lawful exemption to deny access to journalists or other members of the public seeking government information.

The memo was quickly and roundly criticized among journalists. Typical was an Oct. 18 letter to the Attorney General from the Society of Professional Journalists, which claimed the Attorney General's policy "threatens to fundamentally alter the presumption of openness inherent to the FOIA, and sends the wrong message about open government to the federal bureaucracy."

Further, argued SPJ, the Ashcroft policy "signals willingness by your office to use the pretense of national security to support a retreat from principles of openness clearly stated by previous administrations."

The latter point was a reference to a 1993 memo from Janet Reno, Ashcroft's predecessor, in which the Justice Department's official guidance encouraged federal FOIA officers to release information even if it was protected by a legal exemption, as long as no harm would result to the public interest.

The 1993 Reno memo, however, should be put in context: The Clinton years were marked by widespread violations of essential transparency in government, beginning with the administration's 1993 refusal to hold public meetings of the White House National Health Care Task Force and continuing thereafter in a Kafka-like series of delays, denials, snubs and outright violations of federal court orders, congressional subpoenas and the FOIA.

Hundreds of examples of flagrant abuse of the FOIA were described in a 1997 report on Clinton's first term from the Reporters Committee for Freedom of the Press, a journalism watchdog group.

The examples cited by the Reporters Committee ranged from making The Washington Post wait two years for documents concerning Deputy Secretary of State Strobe Talbot's expenses on a foreign trip to repeatedly denying FOIA requests for information on the White House's $25 million telephone system.

That little changed during President Clinton's second term is seen in the October 2000 denial of a journalist's FOIA request for the names of all presidential guests at Camp David because, an administration official argued, making the list public "would not significantly contribute to the public understanding of the operations or activities of government."

These facts bring to mind the truth of an observation by Defense Secretary Donald Rumsfeld, then a young Illinois Republican congressman, during debate in the U.S. House of Representatives on the FOIA that "no matter what party has held the political powers of government, there have been attempts to cover up mistakes and errors."

Media professionals offer a variety of explanations for the low numbers of journalists making use of the FOIA. Some, like University of Minnesota Media Ethics and Law Professor Jane Kirtley, argue that journalists often are able to get the information they seek without recourse to the FOIA, thanks to more informal sources, including such traditional journalistic tools as finding and cultivating officials who are sympathetic to the media or who simply think their policy agendas will benefit from strategic leaks.

"This doesn't mean, of course, that the informal requestors aren't benefiting from the existence of the FOIA. They are," Kirtley said. "The 'informal approach' would be far less successful if there were no FOIA to back it up - in other words, records custodians provide records based on an informal request because they know they would have to respond to a formal request."

Kirtley also said "some reporters have become very savvy about Computer-Assisted Reporting. In the wake of the electronic FOIA amendments, much agency information is now available online."

Similarly, Paul McMasters, a former Associate Editorial Director of USA Today and now the First Amendment Ombudsman at the Freedom Forum, said "journalists have developed other ways of getting the information they need from federal agencies" largely because the FOIA exists.

"The crucial point, however, is not how often journalists use the FOIA but what they do with the requests they do make. Important news stories affecting public policy are published literally every day somewhere that would not have been possible," he said.

Second, even when relatively few journalists are using the FOIA, the fact that many other individuals and organizations are, including non-profits and individual activists, demonstrates the value of the law, said Rebecca Daugherty of the Reporters Committee.

"Information requested by public interest groups may be reported in their own internal or external newsletters," Daugherty said. "They may use the information in press releases. They may alert media in other ways to problems uncovered from requested information." Among the benefits of this collective pressure on government is greater openness overall for the media.

A third explanation for the small number of media FOIA requests is found in the needless bureaucratic obstacles often used by government officials to delay responses, perhaps in the hope the requestors will give up, according to Rosemary Armao, managing editor of the Sarasota Herald-Tribune.

"Put in a request for federal records and you are likely to wait for weeks, even years for a meaningful response," said Armao, who is a former executive board member of Investigative Reporters and Editors, a group based at the University of Missouri.

"You are likely to find your request denied or responded to with records so heavily redacted as to be unusable. Ask any journalist who does use the act regularly and you will hear horror stories," Armao said.

The accuracy of Armao's comments were borne out by the Media Center's experience as well. The Media Center's initial requests were mailed to the five federal agencies on June 15, 2001. By Sept. 28, three of the five agencies had not responded despite the FOIA law's requirement that all requests either be granted or denied within 20 working days.

At the Education Department, the Media Center request wasn't even logged on the agency's FOIA log until Aug. 7, 2001. Only after numerous telephone calls and discussions with three department information office employees was a copy of the log produced on Oct. 10, 2001, almost four months after the original request was mailed.

At the Transportation Department, an information office spokesman told the Media Center its request could take as much as a year to fulfill because of staffing shortages. When the log was received Nov. 1, much information was redacted, making it extremely difficult to read and tally.

At HCFA, numerous telephone calls and faxes resulted in an Oct. 25 promise by an agency official that a response was forthcoming. As of late November, 2001, nothing has been received from HCFA.

A possible fourth explanation for the media's failure to pursue vigorously FOIA requests is the declining number of journalists actually covering federal departments and agencies, a trend that was well-documented earlier this year by the American Journalism Review's Lucinda Fleeson. Fewer newspaper journalists covering federal agencies inevitably means fewer FOIA requests.

"The notion of news organizations assigning a full-time reporter to cover a Washington bureaucracy has become as antique as the typewriters on which stories used to be written," Fleeson said in an installment of "The State of the American Newspaper," AJR's landmark series.

"Reporters so rarely go to federal agencies anymore that many press rooms have grown dusty and little-used, or in some cases have been completely eliminated," Fleeson said. The result? "Less public accountability by the government."

The trend is even more evident at the state level where routine coverage by beat reporters of state government agencies and programs is also declining rapidly. The trend is exacerbated by the fact that, even with the federal law's many administrative deficiencies, few state FOIA laws approach its effectiveness.

 
 
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