The media’s problems with FOIA

From the Winter 2007 issue of The News Media & The Law, page 6.

The Ashcroft memo. In October 2001, then-Attorney General John Ashcroft instructed agencies that the Department of Justice would defend in court any FOIA denial that had a “sound legal basis.” This supersedes the previous policy, established in 1993 by then-Attorney General Janet Reno, that so long as there was a legal reason to disclose the information, the agency should do so.

Wait times. Many agencies have a backlog of FOIA requests that they cannot effectively process within the time frames in the current statutory framework. Some agencies claim this is due in part to the lack of resources for agency FOIA offices. FOIA is not a “line-item” appropriation, which means that each agency draws from its general operating funds to run its FOIA office. When other areas of an agency need funding, the information office can be the first place extra money is diverted from.

(b)(3) exemptions. FOIA is increasingly circumvented by the use of so-called (b)(3) exemptions, which allow for documents to be withheld in spite of FOIA when another federal law allows. Thus, Congress can pass a law and simultaneously exempt from FOIA the documents generated under the law. Even when Congress has not explicitly exempted a law, agencies can point to vague language within a statute to justify a (b)(3) exemption.

Recovery of attorney fees. Sometimes the only way to motivate an agency to turn over public documents is to file a costly lawsuit. Under the current rules, a requester can recoup attorney fees only if he receives a favorable judgment from the court. That means if an agency relents and releases documents before a judge has a chance to rule on the merits of a case, the requester cannot win attorney fees even though the lawsuit was the last-ditch catalyst for getting the documents. — NW