BuzzFeed News reporter Jason Leopold is a prodigious Freedom of Information Act (FOIA) requester who files hundreds of public records requests and dozens of lawsuits a year against federal agencies. In fact, the only news organization that filed more FOIA lawsuits against the government last year was The New York Times.
Most transparency advocates and journalists would think of this as a feather in Leopold's cap, but according to government lawyers, filing too many lawsuits against agencies for failing to abide by federal records law is a good reason to delay further transparency.
U.S. Justice Department lawyers filed a motion Monday in response to one of Leopold's many FOIA lawsuits, asking a federal court to allow the National Security Agency to delay releasing a large tranche of documents to him, citing in part his extensive litigation to get public records.
The documents in question, reports from the agency's inspector general, contain roughly 22,000 pages concerning allegations of misconduct at one of the country's top spy agencies during 2013 and 2014.
The motion, which asks the court to allow the NSA to delay processing Leopold' request until it comes up in the long backlog of pending requests, says the NSA has been overwhelmed with FOIA requests since the 2013 leaks by Edward Snowden that revealed the agency's dragnet surveillance programs. However, the motion also goes to some lengths to paint Leopold as someone who is abusing the FOIA system.
In the government's motion, the NSA cites a Poynter article that says Leopold makes a living "by deluging the federal government with Freedom of Information Act requests," and that he styles himself as a "FOIA terrorist." (This is somewhat inaccurate. According to Leopold, the moniker originally came from government officials who were displeased with his work.)
"NSA has experienced a significant increase in the number of requests by a small group of requesters," the agency says in its motion. "These requesters also levy complex, multi-part, multi-subject requests simultaneously on various government agencies. Then these individuals often commence judicial action immediately after statutory requirements for exhausting administrative remedies have been satisfied. They presumably intend to jump to the front of the queue, ahead of requesters who have chosen not to litigate, many of whom almost certainly lack the necessary financial resources."
Leopold's lawyer, Joseph Creed Kelly, calls the government's motion "ridiculous."
"To pick on people who make a lot of requests and insinuate that they're taking advantage of the system, that sets a bad precedent," Kelly said. "People are entitled to information, and it doesn't matter how many requests they've filed or what kind of information they've sought in the past. Or in Jason's case, he's trying to make his living doing reporting on issues of public concern, and for the agency to insinuate he's somehow abusing the system is ridiculous."
Federal agencies are well aware that they have virtually unlimited money and time to drag out court fights, while the average FOIA requester very much does not. Even among large news organizations there are dwindling resources to spend fighting public records lawsuits against obstinate government agencies.
Leopold and the handful of other high-volume requesters and litigators are only outliers because of their persistence in fighting back against agencies that flout the spirit and, quite often, the letter of federal record law. The FOIA at best is clunky and half-useless for reporters, who often must wait years to get documents back. For example, I've been waiting since March 2015 to get a memo published by the Justice Department's Office of Legal Counsel. Another time, the Drug Enforcement Administration sat on one of my FOIA requests for its policies on GPS tracking for three years before transferring it to the Justice Department for further review. This is the sort of activity that led to an all-time high in FOIA lawsuits against the government during the Obama administration—a trend that likely will continue, given the media and public's intense interest in the Trump administration.
Yet the NSA apparently thinks that aggressively working to pry public records loose is some sort sign of nefarious intent. It's bad argument and a worse look for an agency already suffering from a deficit of public trust.
"The public's right to know is at the heart of FOIA," the Reporters Committee for Freedom of the Press tweeted Tuesday. "Intimidating journalists who are using FOIA to seek out information is wrong."
I wrote earlier this year about how the Obama administration pledged unprecedented transparency but in fact set the stage for even more secrecy by future administrations. I also wrote last year about the 50th anniversary of the improbable passage of the Freedom of Information Act.
Also check out ReasonTV's video on how the FBI is changing it's FOIA rules to become even less transparent: