Reporters Face Lengthy FOIA Delays

By: Seth Porges When President Lyndon Johnson signed the Freedom of Information Act on July 4, 1966, the bill was supposed to create a new level of openness in government. But in 2003, many journalists who try to use the FOIA encounter roadblocks and bureaucratic red tape that often keeps their requests from being fulfilled for years, if at all.

"I'm dealing with what some people would say are extremely lengthy delays," United Press International Investigations Editor Mark Benjamin said. "It took me a year to get one sheet of paper on one soldier I was investigating."

Such delays are not unusual. According to an audit released Nov. 17 by the National Security Archive at George Washington University, processing times for FOIA requests are as high as 905 business days at the Department of Agriculture and 1,113 business days (or more than four years) at the Environmental Protection Agency. Some requests have been pending for more than a decade.

The FOIA gives agencies 20 working days to respond to requests, with an additional 10-day extension available for "unusual circumstances,'" the audit says. The oldest pending FOI request identified by the audit dates from Nov. 9, 1987.

According to journalists and FOIA experts, there are a few recurring problems that hinder requests, and a few measures journalists can take to make quicker and more efficient use of the act.

"At least at the federal level, journalists are going to run into delays," said Rebecca Daugherty, FOIA service center director at the Reporters Committee for Freedom of the Press. This organization publishes guides on how to use the FOIA and operates a 24-hour hotline for journalists and others who need assistance with requests.

Douglas C. Clifton, editor of The Plain Dealer in Cleveland and Freedom of Information chairman at the American Society of Newspaper Editors, told E&P in April that editors who are not aggressive in fighting for openness in government "are not doing your job."

To make sure requests are filled as quickly as possible, journalists must be proactive in their pursuit of information, experts say. One of the biggest causes of FOIA delays comes from requesters not knowing which particular office in the federal government to approach to find the information. There is no centralized FOIA office in the federal government: Each branch is responsible for fulfilling requests on their own. If a journalist looks in the wrong branch or office, it can take months -- or years -- for their request to land in the right place among the bureaucratic musical chairs.

"You should get on the telephone," Benjamin said. "You should find out where their request is, perhaps before you even file their request. Anyone who tries to get any information from the federal government finds out it takes about 14 telephone calls to get to the right person. This is time well spent."

Other causes of FOI delays that Benjamin has encountered include the Department of Defense "bifurcating and re-bifurcating requests," dealing with continually rotating case officers, and having to negotiate after the Pentagon says "they are considering saying 'no' to a request." Often, the department will initially turn down a request it deems too time-consuming, according to Benjamin. For one request, he has been negotiating with the department for more than two months "over the fact they think it is too time-consuming. In two months they could have just fulfilled the request."

Detroit Free Press reporter Wendy Wendland described difficulties she encountered while trying to use the FOIA on a state level to gather information about lead poisoning in Michigan. "First, the Michigan Department of Community Health told us the lead database we sought did not exist," Wendland said. "Then, when we presented them with proof it did exist, they told us it was not public information. Then, when they realized it was public, they said we could only get it in paper form, for a charge of $2,445. We sued the state, and in June 2003, one year after our original FOIA was filed, we won the lawsuit. We received the database -- in an electronic form -- and were reimbursed $10,000 in attorney fees."

Although there is little evidence to prove the government systematically suppresses requests for information they do not want made public, some delays raise suspicions. Benjamin, for example, recalls excessive delays he encountered from the Pentagon while investigating articles about war casualties in Iraq and similarly contentious stories.

"I have worked with some FOI officers who were friendly, helpful, and prompt," Wendland said. Others "make it difficult because they know the information requested could be damaging." FOIA requests can be turned down on grounds that they contain serious matters of personal privacy or are in an area deemed sensitive for national security, as well as several other "exemptions."

Daugherty does not believe that delays stem from a malicious federal government, but from issues within particular branches and offices of the government. "I think the FOIA officers are in a particularly difficult position," Daugherty said. "People believe their duties don't involve carrying out the FOIA. If you are a forest service official, you are there to protect the forest, and it doesn't occur to you that you are there to provide the records the FOI offices need."