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Even when the FOIA deck is stacked against you, don’t cash in your chips

From the Fall 2005 issue of The News Media & The Law, page 13. By Seth Borenstein Filing Freedom Of…

From the Fall 2005 issue of The News Media & The Law, page 13.

By Seth Borenstein

Filing Freedom Of Information Act requests just after a disaster is much like playing solitaire on your computer. It’s lonely, something to occupy your mind while you’re waiting for callbacks, and sometimes no matter how smart you play, you will lose because the cards are stacked against you. Yet I still FOIA frequently enough to use the initials as a verb.

Unlike FreeCell, where if you play smart you can always win, FOIAing after a disaster is often an exercise in frustration. That doesn’t mean don’t file, it just means don’t get your hopes up. As much as I tell myself this, I unfortunately can’t get that message through my brain and I usually file a FOIA and think “I’m going to find something good.”

There’s another reason that I tend to avoid FOIA requests after disasters: the agencies do have something better to do, namely respond to disasters.

After Katrina, I was not thinking FOIA. I was reporting on the government’s response, but as a member of the Society of Environmental Journalists, I am on its list-serv. The weekend after Katrina’s landfall, there was a plea from Mark Schleifstein, a friend and prescient colleague who covers environment and hurricanes for The (New Orleans) Times-Picayune. Homeless and writing for a city of Katrina victims with immediate environmental life-and-death concerns, Schleifstein had been unable to get any real environmental data about water, air and soil testing from the U.S. Environmental Protection Agency. He filed a FOIA but said he couldn’t follow up as urgently as he normally would. He asked for help.

I filed a similar FOIA. SEJ President Perry Beeman of The Des Moines Register wrote a column about our problems. And then we waited. Sure, EPA put some data on its Web site and had a handful of press conferences, but after the agency withheld reports following the Sept. 11 World Trade Center collapse, many of us wanted to see all the documents. Trust but verify, to quote Ronald Reagan. We waited some more. I called EPA’s FOIA office, which used to be responsive, quick and a model of efficiency. I was assured that we’d get expedited review. As I write this six weeks have passed. Nothing, except a fee waiver and promises.

Even the Federal Emergency Management Agency was faster.

In late September, Schleifstein called the same FOIA officer from EPA who’d kept assuring us. It was 3:30 p.m. New Orleans time, 4:30 p.m. Washington time. The FOIA officer, Schleifstein said, couldn’t talk because he had to get to his son’s baseball game. Schleifstein didn’t say anything, but he later pointed out to me that his son lost his apartment and everything, and he’d love to be rushing out to visit his son’s ballgame. That put priorities in perspective.

Schleifstein &#151 who should be writing this column but has more important things to do, such as put his life back together &#151 said he felt victimized, first by the hurricane and then by EPA in the FOIA process.

“They have not been helpful at all,” he said. “The state [of Louisiana] has been extremely helpful at every point.”

Because good reporters such as Schleifstein have limited resources in the wake of this disaster, the rest of us have had to redouble our efforts to get access to public records.

A larger Knight Ridder team that’s covering the response to the hurricanes, preparedness for them and government contracting afterward has filed more than a dozen FOIA requests with different agencies. Alison Young, an investigative reporter in the Knight Ridder Washington Bureau, is the first post-Katrina FOIA requester listed on FEMA’s FOIA log.

FEMA has a new FOIA officer and he has been surprisingly speedy. One of my first FOIA requests to FEMA was for the daily situation reports &#151 the interagency versions, not the sanitized public ones put on the Web &#151 leading up to Katrina’s landfall and just afterward.

My FOIA was dated Sept. 12. My response, with documents and a disk, was dated Sept. 20. I think that’s the fastest I have ever heard from a federal agency on a FOIA request.

Unfortunately on each day’s page when it comes to the section titled “FEMA Readiness Alert Status” everything is blacked out. This is hiding the answers to the key questions: Were they ready? What was ready? What wasn’t?

Edward G. Buikema, FEMA’s acting response division director, wrote in his answer to my request that these sections were withheld under FOIA Exemption 2, which is “predominantly internal information, the disclosure of which would risk circumvention of agency regulations or impede an agency’s law enforcement capabilities, including readiness status.”

FEMA said it was withholding 15 pages and releasing a total of 124 pages.

Of course, since the hurricane is over, it is hard to figure how this would impede law enforcement capabilities or readiness status. The only thing it could impede, it seems, is revealing that FEMA was unprepared.

Many more FOIA requests are still pending. I’m not optimistic. I know I’m playing the game right, but I’ll probably lose anyway.

Although the deck is stacked against us, it’s our duty to keep trying.

Seth Borenstein is a national correspondent with Knight Ridder Newspapers’ Washington Bureau.