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Feds Blame 'Self-Styled FOIA Terrorist' for Their Own Stonewalling

Journalists shouldn’t have to sue to get public information.

Tetra Images Tetra Images/NewscomTetra Images Tetra Images/NewscomBuzzFeed 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:

Photo Credit: Tetra Images Tetra Images/Newscom

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  • CatoTheChipper||

    There's an easy way to avoid the nuisance FOIA requests and lawsuits. Make government transparent.

    Of course, that's not gonna happen.

  • SomeGuy||

    The solution is when we rewrite the Constitution there is a clause that stats all government information is public record and is posted online. So any spying and data collection on US citizens is 100% public. That allow will make people care about what the government guzzles up.

    Government of the people by the people means the people have a right to all government information and all government knowledge is public. Problem fucking solved.

  • SQRLSY One||

    Also let's take 5% or so of "defense" (Empire-building) spending, and do a Manhattan-style research program to develop an honest and accurate brain-scan lie-detector-type machine, and pass a new law:

    All employees of Government Almighty will be brain-scanned; else they don't get the job. The public gets to see their brain-scan reports, especially concerning their "asshole factors" and "power-mad" factors.

    The tech, really, is here already. All it needs is some polishing and standardizing...

    This would also be a great tool to deploy at the border! MUCH better than discriminating against people on the basis of their religion, origin, etc.!

  • SomeGuy||

    your a statist asshole. Fuck SPEC scan or whatever those are called.

  • Snort||

    I thought SQRLSY One (whatever the hell that means) comment was cute. Let's add in detection for corruption and add a gate that leads directly to a firing squad while we are at it. America would be better off. Well, except for those who would destroy America.

  • SQRLSY One||

    Hi Snort,

    Thanks for your kind words... SQRLSY stands for Scienfoologists Questing for Religious Liberty, Sincerely… Why Squirrels? Because the "Church" of Scientology, for a LONG, time, dating all the way back to chief nut-job Hubba-Bubba, has called those of us who want to "steal technology from the Church of Scientology", yes, "squirrels"…
    To learn more about Scienfoology, please see www.churchofSQRLS.com
    I have been trying to get Government Almighty to give us Scienfoologists the same kinds of religious freedoms as what Scientologists get; So far, with little apparent success…

  • Snort||

    I know very little about the actual church of Scientology and most of that was what I learned waiting to see if Kenny got killed. Or do I have the wrong religion? South Park anyone? Oh, That religion. I actually went to a lecture he gave. About all I remember him talking about was damming a waterfall behind his house to generate electricity. He seemed nice enough.

  • American Memer||

    Naive.

    There is an anime about cops using (essentially more advanced versions of) that tech for precrime.

    Psycho-Pass, look it up.

  • SQRLSY One||

    Slippery slope logic… If we demand a brain-scan report before we vote for a given politician, next thing you know, we'll be in a "pre-crime" world.
    If we allow Government Almighty (or the private police or local vigilante gang for that matter) to restrain murderers, next thing you know, they'll be locking us up forever, for spitting on the sidewalk!
    We live on countless slippery slopes already… What's one more?
    (PS, I can NOT allow you to drink that cup of water… Next thing you know, you'll be drinking the oceans dry!)

  • Darksafi||

    You could charge the agencies the 25,000 for each request. A good start.

  • Fatty Bolger||

    Understandable. With a mere 2.7 million civilian employees, how are they supposed to find the resources to get this done?

  • AlexInCT||

    The bulk of those people are too busy looking at porn, and not doing any real work...

  • SomeGuy||

    Yep that was my NCO/SNCOs in the Marine Corps. On the phone watching porn all day.

  • Snort||

    There is a short video floating around in the cloud somewhere showing one of Americas fine outstanding congressmen pulling up a porn site during a congressional session. The fine outstanding congressman closed the page as fast as he could and blamed it on being hacked or some such thing.

  • C. S. P. Schofield||

    I'd love to see legislation making an agency that tries to deny or delay an FOIA request lose money from its budget. Won't happen, but were I in charge (heaven help us!) I'd do something along those lines.

  • NotAnotherSkippy||

    If should come out of their pension funds. Same applies to local police depts.

  • Principal Spittle||

    This is precisely the system envisioned by those who would have otherwise voted against it 50 years ago.

    The government may have grown a lot in recent years but Bureaucracy is a prestigious line of work with a long sn glorious tradition.

  • Austrian Anarchy||

    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,"

    How the Hell do you do that? My FOIA requests frequently cost me money because the government rejects my classification of the requests as journalistic and demands money from me. Even though I have paid, published articles on the exact same subject. I had to start a GoFundMe to partly keep up with their charges.

  • Dr No||

    "Self-Styled FOIA Terrorist"
    Having read the article: not "self-styled", not a terrorist; some doubt on Freedom, Information and Act.

    "Of" seems to be accurate.

  • Inigo Montoya||

    Something tells me these fatass bureaucrats would quickly become quite transparent if the FOIA acronym was altered to mean Forest Products Instantly Atomized...in other words, wood chipper.

    (To any lurking govt attorneys: I'm clearly joking. My default reaction when presented with a sad situation is to make humorous remarks.)

  • Bubba Jones||

    The NSA has real time access to every electronic communication but they can't process FOIA requests in real time?

  • Snort||

    So, 'on principal', someone follows both the letter and intent of the law can be punished. That means for example, If I am going 65 in a 65 mph zone I can be ticketed because.... What?

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