Documenting the disaster

From the Summer 2010 issue of The News Media & The Law, page 7.

Along with reports that newsgathering has been difficult for some journalists, the press may not be able to rely on public records for crucial information about the spill, either — at least not for the foreseeable future. Numerous media and watchdog organizations report difficulty accessing records using both state public records laws and the federal Freedom of Information Act.

For example, legal watchdog group Citizens for Responsibility and Ethics in Washington began filing FOIA requests in May but has yet to receive any documents documenting the spill’s impact on the public from the Coast Guard, Environmental Protection Agency, Department of Interior and other government entities.

“It strikes me that this is exactly the type of situation in which agencies should be rushing to put as much data as they can affirmatively on their websites,” said CREW attorney Anne Weismann. “Clearly they are gathering docs for congressional requests, and others. Why not make it available as a matter of proactive disclosure? I’d give a lot more latitude with FOIA requests if they were doing that.”

Weismann says that the group will continue to make FOIA requests about the government’s response to the disaster, but realizes the limitations the process has. The group has adjusted its strategy accordingly.

“FOIA is a pretty clunky instrument when there is a true disaster, in part because I understand they are getting deluged with requests,” Weismann said. “That’s why we’ve given up trying to get information on the most immediate crisis and are taking the longer-range view.”

She expects to receive agency responses within six months detailing what plans agencies had in place to respond to a BP spill-like disaster and how the actual response compared to the plan.

Hurricane Katrina

The legal group used the same approach after Hurricane Katrina in 2005 when it made multiple FOIA requests to the Department of Homeland Security — which houses the Federal Emergency Management Agency — in an effort to gain access to documents about how prepared FEMA was for a disaster of Katrina’s magnitude before the hurricane.

Two years and one public-records lawsuit later, the agency released 7,500 documents that were used to compile CREW’s 2007 report on the agency’s failure to implement its own disaster plan or communicate effectively.

“All too often, we have to sue just to get the agency to pay attention to our request,” Weismann said.

Despite the two-year delay, the information CREW received is crucial to preventing a similar breakdown in government response in the future and looking at flaws in the process, Weismann said. “Is the problem that they hadn’t trained or anticipated, or was the problem how they handled it?”

The records obtained by CREW showed an “amazing amount of detailed planning, down to how many pounds of ice each person would need, but when disaster struck, that planning went out the window,” Weismann said.

Associated Press editor Brian Schwaner had a similarly delayed FOIA response following hurricane Katrina. Just this week, he received a response to a request he made in October 2007 that asked for a single line of data he sought for a story and worries the three-year delay does not bode well for getting information from the government about the BP spill in any timely fashion.

“We are being told to do a lot of FOIAs [by the United Area Command]. If that’s the kind of response and transparency that we are going to deal with going forward, then that’s going to make it very difficult,” Schwaner said.

One difference between Katrina and the spill this year is that in the aftermath of Katrina, reporters dealt directly with the government, which is subject to open records laws. As a private oil company, BP is not.

“Here, government is working with a private company,” Schwaner said. “So we don’t know ultimately how much inside information on this will be public. And a lot of that may be decided through court cases.”

Weismann said the government’s response to FOIA requests following the spill may not be affected significantly simply because BP is a private company. “The fact that in Katrina the information we sought was in hands of government didn’t necessarily make it happen any quicker,” she said.

Still, she remains optimistic about obtaining information. “The landscape changes almost daily. When we first started filing FOIAs [following the spill] nothing was being disclosed, but now more and more is being released.”

Exxon Valdez wreck

A more analogous situation might be the hoops reporters jumped through when they covered the Exxon-Valdez oil spill in Alaska in 1989.

Anchorage Daily News reporter Charles Wohlforth said that following that disaster he made numerous public records requests using both the federal FOIA and Alaska state open records laws but found “the vast majority of information is withheld until long after there is any journalistic interest in it.”

Wohlforth noted that by the time it was confirmed that the spill had killed 250,000 birds — an “enormous mortality” rate — the figure was “rarely quoted” because the public had lost interest.

The two most common reasons agencies cited as a justification for denying a records request —  attorney-client privilege and that the disclosure might compromise an ongoing investigation — represent “disturbing trends” from the Exxon-Valdez spill that are being repeated in the current gulf disaster, Wohlforth said.

“When you know that everything is automatically going to be refused, you don’t continue to file requests just out of principle,” Wohlforth said. “Agencies are essentially able to hold on to everything by stamping it ‘attorney-client privilege.’”

Those records can sometimes be accessed later once they are used in litigation, which is the eventual result in any oil spill. In addition to court documents, Wohlforth said he obtained other documents through leaks and confidential sources.

Still, Wohlforth does not discount the FOIA process entirely — after he filed an administrative appeal and contacted high-level officials, he was able to gain access to Exxon-Valdez records he had previously been denied access to from a federal agency that monitors oceans.

The report he received, which tracked the effectiveness of the cleanup and whether it was doing more harm than good, showed that the government had “wasted” millions of dollars by not having the study vetted by independent scientists, he said.

“The government employs scientists to find out what the damage is, and then they don’t tell us the results of the studies funded with public money,” Wohlforth said.

Wohlforth said that journalists aren’t the only ones looking to past disasters to figure out how to proceed going forward.

“BP learned from Exxon how to try to control the information flow, and they’re doing an even better job of it. There does seem to be a lack of release even for the most general information,” he said.