FOIA Facts: Recent FOIA Items in the News

Two recent items recently caught my attention concerning FOIA matters. The first one concerned a release of FOIA logs by the Pentagon for all FOIA requests made to DOD since the 2000. The request, filed by blogger Michael Petrelis, reveals something that I have confirmed since starting private practice nearly three years ago. Simply put, the mainstream media doesn't utilize the FOIA to gather information. The log reveals that no mainstream media (television, radio or print newspaper) made more than 42 FOIA requests since the 2000. The leader at 42 was the Los Angeles Times. The Associated Press, a wire service, was the wire service with the most FOIA requests, but they only made 73.

I believe this information is important for two reasons. First, it shows that mainstream media don't really dig for information to report on. FOIA releases are facts on which news stories can be based. If facts concerning DOD activities are not received by the media through FOIA requests, the media must either depend on interviews with government employees (civil or military), authorized non-FOIA releases (which are usually non-controversial) and unauthorized disclosures (leaks). Plamegate has demonstrated that leaks, in and of themselves, are not exactly the best way to gather news. Thus, the fact gathering by the mainstream media which largely overlooks FOIA does the public a disservice by failing to get accurate factual basis for their stories.

Further, by failing to utilize FOIA, the media makes the failures and delays in getting information via the FOIA a self fulfilling prophesy. Let's face it; the mainstream media is a huge lobby. If they filed more FOIA requests, they could use the power of their size (and the pen) to put pressure on agencies to do a better, timelier job in meeting the agency's statutory requirements of the FOIA. They could also put more pressure on Congress to bolster FOIA laws and funding of agency FOIA staffs. But since the media files a minuscule amount of requests, they don't get exorcised about it and it becomes a non-story. I'd like to see a world where the media utilizes FOIA, and takes the agencies and Congress to task when they fail to timely get their information. Instead, we live in a world where Brad Pitt's love life is major news. To quote Joe Jackson, "somethings going wrong around here."

The other item is that Senate Republicans want to create a new agency that is totally exempt from the FOIA. Legislation approved by the Senate health committee exempts the proposed Biomedical Advanced Research and Development Agency, (BARDA), from most open records and meeting laws, including the FOIA, that cover other agencies.

This agency would provide funding for development of treatments and vaccines to protect the U.S. from natural pandemics as well as chemical, biological and radiological agents.

The idea in exempting this agency from FOIA, according to Doug Heye, a spokesperson for Sen. Richard Burr (R-N.C.) is to protect competitors from gaining proprietary information through the FOIA. Obviously, Heye and his boss have failed to read the FOIA, which protects this type of information pursuant to the exemption 4 of the FOIA. This legislation goes way above and beyond that exemption. If the agency itself is exempt from the FOIA, even mundane requests for agency contracts, personnel matters and other non-competitive issues could simply be denied.

If this agency is approved, I would hope that enough senators and representatives come to their senses and strip this provision from the bill. In fact, I'd like to see them add FOIA provisions to other recent Congressional created entities such as the Public Company Accounting Oversight Board (PCAOB). For those that don't know what the PCAOB is, it is a congressionally enacted private sector non-profit corporation that is monitored and reports to the SEC but is not subject to the FOIA. In creating it, Congress specifically exempted it from the FOIA even though it has powers over the Public Accounting industry. The failure to subject this agency to the FOIA is undemocratic and should be reversed. Subjecting more entities to FOIA can only help the democratic process, especially in a time when America is trying to export democracy to the rest of the world.