Jason Leopold knows a thing or two about the Freedom of Information Act. Buzzfeed’s senior investigative journalist currently has about 2,000 outstanding FOIA requests with federal agencies — 150 of them submitted this year alone.
He says that while he found the penchant for government secrecy to be “really bad” under the Obama administration, things have gotten worse since President Donald Trump took office.
“I have seen across the board with all agencies, an aggressive effort to withhold records,” he said recently. “I see this as a radical change in just three months compared with what happened under the Obama administration.”
Leopold began his journalism career in 1992, but did not start using the public records law aggressively until 2009, after a bad experience with an anonymous source.
While working for Truthout, the nonprofit news website and daily newsletter, Leopold relied on false information from the source and wrongly reported in 2006 that a grand jury had indicted Karl Rove for lying during a federal investigation of the public identification of covert CIA operative Valerie Plame.
“It was a horrible, terrible error which I regret,” he said.
The mistake nearly killed his career and reputation, but he decided to try and rebuild both by making hefty use of the Freedom of Information Act.
He soon discovered that prying loose government documents can pack a powerful reporting punch.
In 2011, the Air Force removed slides used to train officers on the ethics of using nuclear weapons after Leopold reported for Truthout that they had cited the New Testament and an ex-Nazi.
He also obtained the secret diaries of Guantanamo detainee Abu Zubaydah from a U.S. intelligence official after failing to obtain them through the FOIA. Zubaydah, a citizen of Saudi Arabia, was deemed a “high value detainee” after his arrest in Pakistan in March 2002. The diaries served as the foundation for an exclusive series for Al Jazeera.
And in 2016, top senators on the Senate Intelligence Committee included an amendment in a spending bill that required the Director of National Intelligence to detail how intelligence agencies interact with Hollywood after Leopold reported that the CIA had played a role in Hollywood productions.
President Lyndon Johnson signed the Freedom of Information Act into law in 1966 to give citizens the right to access previously undisclosed federal government documents, like those Leopold obtains.
The law contains nine exemptions that allow agencies to protect information from disclosure, but Congress reformed it last year to close some loopholes agencies abused to obstruct disclosure.
The most abused exemption, Leopold said, is a discretionary one that covers attorney-client privilege, attorney-work product privilege and deliberative process, which allows federal employees to communicate candidly without fear of public exposure.
Agencies also regularly abuse the national security exemption, Leopold said.
“What I’ve found from certain records I’ve obtained after appeals, there’s no national security risk,” he said. “There’s mostly embarrassment.”
One time, Leopold found a letter among 300 pages of documents the CIA disclosed to him stemming from allegations that the agency had hacked into the Senate Intelligence Committee’s computers during its investigation of the CIA’s rendition, detention and interrogation program – a euphemism for the torture program.
The letter, which the CIA had accidentally given to Leopold, contained an apology from former CIA director John Brennan for spying on the committee. The agency, however, never sent it.
Before he reported on it for Vice News in 2016, the CIA asked him not to disclose the letter, citing the national security exemption.
Though Leopold acknowledges the government can legitimately withhold some information, he said agencies often withhold information just because they don’t want it released.
“It’s secrecy for secrecy’s sake,” he said.
During the Obama years, Leopold said he had a difficult time obtaining records.
Under the law, agencies are required to approve or deny a request within 20 days. But it can take years to actually get the documents.
“Yesterday I tweeted out documents I waited three years for,” he said. “They were completely redacted, so it’s a painstaking effort to do this type of work.”
Leopold said he also recently received documents from a four-year-old request.
“I was thinking I could have gone to college, gotten another degree and then I would have had my FOIA at that time as well,” he joked.
Leopold said over time he noticed that the more he requested records from certain agencies, sued them to force disclosure and wrote stories that laid bare behind-the-scenes happenings, the more secretive agencies became.
“What happens is that it can become troubling for an agency,” he said. “So they try to find ways in which they can continue to withhold records.”
Although it usually takes a lawsuit to get the agency to comply, he called the CIA “pretty compliant,” and said he fares pretty well with the Securities and Exchange Commission and the Department of Homeland Security.
Leopold’s worst FOIA experiences are with the FBI, which he described as “hostile” and in constant violation of the law.
“They are the worst agency,” he said. “They are terrible – they think that they should be exempt from FOIA.”
Though Leopold places much of the blame on agencies for FOIA delays, he said many lack the staff to deal with increasing numbers of requests.
A spokesperson for the FBI said in an email that the agency received more than 24,000 FOIA and Privacy Act requests last year, and has 300 employees and contractors on hand to process them.
“This year is on track to be higher,” the spokesperson said.
While Congress tried in 2016 to improve access to federal records with the FOIA Improvement Act, it failed to earmark funding to help implement them. Some federal agencies still have enormous backlogs.
A recent motion for an Open America stay filed by the National Security Agency in one of Leopold’s FOIA lawsuits illustrates how some agencies are struggling to keep up. According to the March 6 filing, the NSA had backlog of 1, 566 requests in 2016.
The complexity and number of FOIA and Privacy Act requests the agency received spiked after former contractor Edward Snowden leaked information about the its classified programs, the NSA said.
“The FOIA/PA landscape has dramatically changed in recent years such that responding to information requests demands increasing amounts of time and effort and continues to tax finite resources,” the motion states.
Despite the struggle of agencies to keep up, Leopold is frustrated by the lack of an accountability standard when agencies fail to comply with the law and thwart his efforts to secure documents that should be released.
“It’s not as if somebody’s going to be penalized in the agency for violating FOIA,” he said. “So there’s really no incentive for them to stop doing what they’re doing.”
Under the FOIA reform, agencies are now required to show the actual harm disclosing records would cause if they want to withhold them.
“All agencies that I’ve dealt with thus far – and it’s more than two dozen – are failing to do that,” Leopold said.
Sen. John Cornyn, R-Texas, who sponsored the FOIA Improvement Act of 2016, did not respond to an emailed request for comment about Leopold’s observations.
A spokesperson for the FBI, meanwhile, said the agency “fully implemented the provisions of the 2016 FOIA statute amendments.”
Still, Leopold said things are worse now, though the reason for that remains unclear to him.
While noting that Leopold could be correct given his extensive FOIA experience, the national president of the Society for Professional Journalists, Lynn Walsh, said it is still too early in the administration to tell.
“We have not seen an increase in members contacting us about issues with FOIA since the administration has been in place,” she said in a phone interview.
“I’m not saying that there have not been moves toward keeping information from the public,” she added, pointing to a reduction in press releases, information being taken off agency websites and staff being instructed not to talk to the public at the outset of the administration.
“That’s been a growing trend, that even under Obama was definitely happening at alarming rates,” she said.But Leopold said that since January, he has received 12 Glomar responses, which allows an agency to neither confirm nor deny the existence of records. That’s more, he said, than he received in all of 2016.
But Leopold said that since January, he has received 12 Glomar responses, which allows an agency to neither confirm nor deny the existence of records. That’s more, he said, than he received in all of 2016.
Agencies can issue a Glomar when denying a request would confirm the existence of a program or information that would harm national security, usually by revealing an agency’s sources and methods.
It can also be used to protect privacy if identifying an individual in federal law enforcement documents, such as a public official under federal investigation, could be stigmatizing.
Courts generally show great deference to agencies that issue Glomar responses. Among the only ways to overcome it is to show that an agency is acting in bad faith, or that the information has already been officially acknowledged to the public.
According to Leopold, agencies are now issuing Glomar responses to requests for already public information.
The Department of Justice, for example, recently issued a Glomar response to a request for records about President Trump’s tweets that President Obama had wire tapped Trump Tower during the campaign.
According to Walsh, the use of the Glomar response has been rising over the past several years.
“That is something that we are concerned about because we have seen more of those coming down recently,” she said.
The uptick in Glomar responses makes it “abundantly clear” to Leopold that he will have to increasingly sue the government for records.
Until now, he has only sued strategically – when he believed that getting records could be a years-long battle.
A search of PACER shows Leopold has filed 20 active FOIA lawsuits, and has sued the government three times since January. A FOIA lawsuit often forces the request to the top of an agency’s pile.
The NSA, however, has taken recent exception to the pace and fury of Leopold’s FOIA requests and lawsuits.
An unnamed government agency once dubbed Leopold a FOIA “terrorist,” which the NSA noted in its recent motion for an Open America stay.
Though Leopold embraced the term FOIA terrorist, he remains adamant that the government bestowed the title upon him, which he said initially “pissed” him off.
“[p]laintiff Jason Leopold is “a self-styled ‘FOIA terrorist’” who, according to a recent press release by his new employer, BuzzFeed.com, makes his living ‘by deluging the federal government with Freedom of Information Act requests,’” the motion states.
The motion troubled Leopold, which he views as an escalation by the government to thwart his FOIA efforts.
“They were trying to use this as a legal argument to get out of providing me with very, very important documents about what takes place behind the scenes at the most secretive agency in the world,” he said.
“I was really, really troubled by that,” he added. “I think any journalist should really be concerned and troubled by the fact that this is what the government is willing to do in an effort to thwart our legitimate attempts at shining a light on government secrecy.”
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