In a new light: FOIA and a photographer’s records

For Ernest Withers, taking pictures while marching in the Civil Rights Movement helped him document his experience, but a FOIA request from a Memphis Commercial Appeal reporter, inspired by an anonymous tip, revealed that Withers had another role during that turbulent time: federal informant. The reporter and assembled panelists will discuss Withers and FOIA’s role uncovering this hidden history at an event at the National Press Club next Thursday, October 10.

Withers, who had been a WWII veteran and one of Memphis’s first black police recruits before opening his own photography studio, used his access as a freelance photographer to get pictures. But records showed that he had also been relaying information to the Federal Bureau of Investigation from the 1950s into the 1970s; even after his death, the Bureau was reluctant to acknowledge his role. However, reporter Marc Perrusquia noticed that the Department of Justice had responded to a FOIA request by “carefully redacting references to informants – with one notable exception[:] a single reference to Withers’ informant number.” (For a summary of related coverage, see below.)

The Press Club announced: “The panel has particular resonance today. It comes on the 50th anniversary of Dr. Martin Luther King Jr.’s ‘I Have a Dream’ speech. It arrives on the heels of recent news about the government’s sweeping domestic surveillance operations. The discussion hopes to highlight the challenges public-affairs journalism faces as news organizations’ business models are under stress. The discussion will shed light not only on the government’s past surveillance practices but also on FOIA and the public’s right to know what its government is up to.”

We at SGI also note that Perrusquia’s work is part of our “FOIA Files” (#603), and that the agreement between the Commercial Appeal and the Justice Department, for further future releases, means that we will continue to learn more about what the government has done and is doing.

A sampling of coverage (see also the Commercial Appeal’s summary):

Take the poll! Should FOIA requesters see responsive documents before they go online?

Three years ago, I polled investigative journalists about a conflict between their competitive interests and their principles. Here’s the question:

The responses I received were thoughtful, varied and conflicting. Some saw competitive advantage in having the story for a few days. Beyond the selfish interests of keeping a story away from competitors, they pointed out a brief delay between the time a requester receives responsive information and the time the documents go online allows a reporter the time sometimes needed to convey a complex story accurately.  Others argued the documents are public and should be available to all, not just the single requester. For a journalist to argue otherwise is hypocrisy, some pointed out. In addition, some noted that with certain requests the requesting journalist likely has background needed on the topic to quickly find the important parts of documents, so those free riders are already at a disadvantage trying to scoop the story.

Since my informal survey in 2010, the government has built tools to make it easier to release responsive documents online at the time they are sent to the requester. Congress is considering FOIA legislation that would move the executive branch toward the creation of a single portal for agencies to receive and respond to FOIA requests.  EPA already has built a robust system that would accomplish that and more.  So the question is ripe: should there be a delay between the time the FOIA requester receives her documents and the time those documents go online?

What’s your take? Take the poll or email us.

Two cheers for Congress: the end of a b(3)

Buried in the middle of the FY2013 National Defense Authorization Act (NDAA) was a pleasant surprise for us: Section 1078, rescinding a statutory exemption to the Freedom of Information Act (or, as we call it, a “b(3)” – after the section of FOIA permitting them), repealed much of the “Smith-Mundt Act”. And earlier this month, this b(3) officially expired.

The United States created the Voice of America during the Cold War to let news programs reach people whose political leaders restricted the press. Amidst concerns that U.S. propaganda might influence domestic policy debates, Congress banned distribution of that programming within the U.S. That is, until earlier this month.

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Curious about surveillance? FOIA has answers.

Many Americans are curious about electronic surveillance by the federal government. Conveniently, the Freedom of Information Act (FOIA) has already helped provide some answers. Although much of the interest and attention arises from journalism in recent days (here, here, here, and here, and related stories), America has had various agencies conducting various forms of surveillance for various purposes for years. For over a decade, journalists have been using FOIA, among other means, to learn more about the surveillance capacities and activities of the federal government:

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Farm Bill Update: Showdown looms on FOIA’s balanced protections versus special interest

Senator Charles Grassley is again poised — as soon as today, although the timing is far from clear — to present a broad exemption that would set a bad precedent for the administration of FOIA.  We recently wrote about our temporary win.

The proposal would exempt from disclosure the GPS coordinates of farms as well as basic contact information for owners and operators of farms and food processing facilities. Such entities are corporations, although Sen. Grassley and others are arguing that these locations are both businesses and individual residences, thus they deserve special privacy protections.

We strongly believe that the FOIA already balances the public interest in disclosure with trade secrets, individual privacy, national security and other interests. A better approach would be to reinforce the notion that existing laws such as the Freedom of Information Act already protect personal privacy.

New, unnecessary exemptions set a bad precedent for keeping the public informed of important public safety events.  For example, the FOIA’s existing balanced protections were adequate when the USA Today reported on why a recall of tainted beef didn’t include lunchboxes, waste in the food subsidy payments system or shortcomings in the federal farm loan program.

Successful fight to stop farm bill secrecy — for now

Senator Patrick Leahy and open government groups have stopped at least for now the Grassley amendment that would bar disclosure of basic phone directory information for owners and operators of livestock and poultry processing facilities and farms.  We explained our concerns about the provision quickly, other groups weighed in as well, and Senator Leahy’s worked diligently to explain the ramifications of this seeming milquetoast provision to his colleagues, and it became clearer that the proposal had problems.  We appreciate the delay to afford open government groups the opportunity to work with Senators Grassley and Boxer to find a better approach that upholds the public’s interest in a transparent and accountable government.

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Livestock owners’ “phone directory” info should not be covered with blanket of secrecy

(Updated 5/23/13 at 1:18pm)

Corrected 5/23/13 at 1:30pm

The full Senate is taking up the farm bill (S. 954), and one amendment three amendments (Amendment 970, 1011 and 1097) from Senator Charles Grassley contain nearly identical language that would eliminate basic “phone directory” information from disclosure, including the name, address, contact info (including email address), GPS coordinates and other identifying information of livestock owners and operators. They claim it’s a defense against domestic terrorism.

The EPA in the last few weeks released such information under FOIA to one (or more) environment groups. That release was criticized by some in Congress. However, the controversy around farmer and rancher’s address and contact information goes back a while to when the USDA was trying to create a system to trace back foodborne illness outbreaks to the source (e.g., the farm) within 72 48 hours to abide by trade agreements. (And it may go back further than that.)  There was much opposition among ranchers and farmers to that program, known as the National Animal Identification System (NAIS).  Eventually, that program was dropped.

During past discussions about this data, we tried to accommodate those concerns and carefully consider when the journalists would find that information useful in reporting (such as when an outbreak occurs) and find some compromise text, but we did not find anyone pushing the exemption who was willing to compromise.

The amendment is ill-considered and should not be voted on in such a rushed manner, especially when the interests in disclosure are as significant as the safety of the food supply. At a very minimum the public has an interest in learning the location of farms implicated in a health scare so the public can evaluate how those responsible for the safety of the food supply are responding.  The current amendment fails to balance any interest in keeping the records confidential with the public interest in disclosure.  The amendment creates a bad precedent for the federal government and for the public that has a strong interest in having full and fair information about newsworthy events regarding the safety of the food supply. Operators of any type of business already have exemptions written into FOIA to protect trade secrets and individual privacy.

This amendment is bad for transparency and accountability and shouldn’t be taken up until sponsors work to address the concerns with the proposal.

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