From the Spring 2005 issue of The News Media & The Law, page 28.
By Rebecca Daugherty
The Freedom of Information Act still works to enhance reporting. Almost every day good stories that need to be told are based on FOI disclosures. The federal FOI stories from the first week in May are exemplary. But if you look closely, there are still missing parts.
• The Marine Corps Times forced the recall of more than 5,000 ballistic vests purchased despite their failure on performance tests, documented through FOI requests by staff writer Christian Lowe. Recall came as the story was being written.
• Robert McClure and Lisa Stiffler’s riveting “License to Kill” series in the Seattle Post-Intelligencer examined hundreds of permit exemptions to the Endangered Species Act that allow developers, miners, loggers and others to harm, injure or kill nearly extinct creatures. The reporters used 10,000 pages of records from federal and state FOI requests — and from leaks — to show animals in peril across the nation.
• Ben Feller of The Associated Press learned that the U.S. Department of Education — the agency that bought favorable press from syndicated columnist Armstrong Williams — had spent $9.4 million on public relations over the last few years.
• AP reporter Sam Hananel learned from Department of Agriculture records that $400,000 subsidies from a program for small farmers went to large agribusinesses in Kansas.
• A victims’ attorney forwarded Food and Drug Administration inspection reports he received through FOI requests to AP’s Joe Mandak. They showed horrid squalor on a Mexican onion farm whose produce circuitously but ultimately landed at Chi Chi’s, a restaurant chain that suffered a hepatitis outbreak at one of its western Pennsylvania restaurants.
But we really are deluding ourselves if we think the act is working like it should. Few FOI requesters ever get everything they seek or any of it on time.
Lowe’s story came from records from the Army, which wrote the vest contracts. The Marine Corps never answered his request. He suspects there were memoranda he should have had, and is quick to quote Defense Secretary Donald Rumsfeld’s “there are also unknown unknowns — the ones we don’t know we don’t know.”
McClure and Stiffler still wait after eight months for a FOI response from the Fish and Wildlife Service on the names of applicants seeking permits to skirt endangered species requirements. McClure points out permitting was supposed to be a public process.
The unkindest response of all was the release of the long-awaited photos of the return of American soldiers killed in Iraq and Afghanistan sought to round out the news of the war.
In the last week of April, the military released 700 photos of the flag-draped coffins of American soldiers arriving in Dover Air Force Base in Delaware, obliterating the faces of most soldiers in the honor guard accompanying them with black rectangles just like the rectangles that the tabloids use to hide the identities of the less-than-honorable caught by the camera in sleazy situations. The military claims it protects privacy and national security interests by blotting out the faces. What it really does is to destroy their use as an illustration of the return of the coffins. The story these photos tell instead is that the government will go to ridiculous lengths to keep secrets.
University of Delaware journalism professor Ralph Begleiter sued for these pictures in October 2004. He first requested them in April 2004. Then, every month through September he updated his request, additionally seeking the previous months photographs. All of his requests were acknowledged. None were granted or denied.
He repeatedly appealed each delay as a denial and he received no response to any of his appeals. Only when he filed suit did the Department of Defense respond and then, on the compact disc it provided, it distorted many of the pictures with the strange black boxes. And, because the disclosures came before a court heard the case, there will likely be no attorneys fees to reimburse Begleiter.
It is especially important to journalists covering the war to have these Defense Department pictures because the agency will not allow journalists to cover the return of the dead to Dover.
Last year the Air Force released a compact disc of nearly 300 of the photographs to Web site publisher Russ Kick of the Web site www.thememoryhole.org, who had appealed a denied FOI request. Defense officials initially said that release was a “mistake,” but an agency FOI chief said the department would continue to process requests for future photos “case by case.”
Congress is looking at several ways to improve how the government responds to FOI requests. Its changes will come none too soon.