On accountability

“If the press won’t represent itself — and the people — by showing some interest in the free flow of government information, who will?” – Margaret Sullivan, public editor, New York Times

If an editor says that she is “very interested in the subject, and in following the legislation,” even if she and her staff are “particularly busy,” I would expect to see her tweet about it and retweet people who do have time to cover it. That wasn’t the case, even when the New York Times editorial pages blog wrote about it and other editors tweeted.

I can’t help but judge this to be a weak reply by the DC bureau chief. It’s particularly disheartening when the bill in question never got a vote in the House yesterday, sending Freedom of Information Act reform to expire in the 113th Congress.

Over the years, I’ve found that being politely persistent with editors over email and Twitter has led to more attention & coverage of boring but important topics. I tried a couple of new approaches to try to get attention on this count, including making “memes” and tweeting about what media companies were covering instead.

I spent the time not just because of the obvious need for FOIA reform but because I care about the New York Times and these other publications. I hoped they would put attention where it has *impact*. I can’t imagine that I made myself popular by doing so, but I’ve faced uncomfortable public questions about why I haven’t covered subjects, or how I did it. I’ve made errors of omission.

In my view, I failed; the vast majority of editors, producers and editorial boards simply didn’t cover FOIA reform, with notable exceptions at The Tennessean, Star Tribune, Review Journal, Cincinnati Enquirer, Bennington Banner, and, at the 11th hour, Newsweek.

The Washington Post did, on Wednesday, but completely blew the headline, putting no pressure on House leadership. I knew cable & broadcast news were unlikely to bother covering FOIA reform. I expected The New York Times would, when I flagged it on Sunday and contacted the public editor.

My bet was that House leadership would judge that they could hold back FOIA reform for a vote because major media would focus elsewhere. If so, they were right, and the public interest lost.
“In a political climate as divided as this, I had hoped that we could come together in favor of something as fundamental to our democracy as the public’s right to know,” said Senator Patrick Leahy (D-VT), That government transparency and openness would not just be the standard applied to the Obama Administration but what is applied to every future administration. The FOIA Improvement Act would have done just that.”

Postscript: On Friday afternoon, Columbia Journalism Review published a FOIA reform dies while the press looked the other way that quoted David Cuillier of the Society for Professional Journalists, Sullivan and me.

By day’s end, publications that hadn’t covered the bill while it was live covered its death. A “Push to Reform the Freedom of Information Act Collapses in House,” reported Frontline PBS. The U.S. “House Scuttle Bipartisan FOIA Reforms, reported MSNBC. FoxNews published an Associated Press report that Congress Fails to Revise Freedom of Information Act. None of the outlets had informed readers and watchers about the bill over the previous week, or what forces or people prevented its passage.

“If we’re going to be beacons of democracy, we need to walk the talk,” Cullier told CJR.

Post-Postscript: Writing for the Sunlight Foundation, Matt Rumsey managed to publish a somewhat, well, sunny post about the death of FOIA reform.

Sunlight has been strongly supportive of the FOIA Improvement Act because it addresses real world problems faced by requesters every day, specifically targeting overly broad exemptions and limiting unnecessary fees. Just like Sen. Patrick Leahy, D-Vt., one of its strongest champions, we aredisappointed that it did not become law.

And yet, we are hopeful for the future.

Most laws never make it out of committee even after repeated attempts spread over multiple years. The FOIA Improvement Act came tantalizingly close to becoming law its first time around.

Rest assured that the FOIA Improvement Act will be reintroduced in the 114th Congress and that the Sunlight Foundation and its allies will be fighting harder than ever for its passage. We want to say a hearty thank you to Leahy, Sen. John Cornyn, R-Texas, and everyone else that worked so hard during the 113th Congress to make these needed reforms possible. We’ll see you next year!

The Washington Post, to its credit, did a post-mortem on how this popular government transparency bill died in Congress. The reason the FOIA reform stalled in the House may not simply have been lobbying by the financial industry, however, as had been previously reported.

According to House aides, some lawmakers balked at the legislation because several agencies, including the Justice Department, warned that those making information requests would use the “forseeable harm” requirement as the basis for frequent lawsuits.

This detail led Trevor Timm, executive director of the Freedom of the Press Foundation, to argue that it was the Justice Department that secretly tried to stop FOIA reform, despite the text of the legislation being almost word-for-word the poilcy that the agency itself embraced in 2009.

Writing for the National Security Archive, Nate Jones looked for lessons from the death of the unanimously supported FOIA bill and decried “Janus-faced support for open government.”  Here was his key takeaway:

Many people –in Congress, in the agencies, in the White House, in the media– proclaim they believe in open government, but don’t really.  To me, that’s the only plausible reason a FOIA bill could garner unanimous approval (thrice in the Senate over the past seven years!) and still die; that’s the only plausible reason agencies whisper that instructions about FOIA currently on the books will ruin the federal government as we know it; that’s the reason for White House silence on the benefits the FOIA Ombuds office not being forced to run its reports though the Department of Justice so they can be “rosified;” that’s the reason the New York Times wins Pulitzers for its FOIA-based reporting, but doesn’t assign a Congressional beat reporter to cover the bill’s death.

How do we overcome these FOIA Januses?  First, we must avoid being stalled out.  We should force Speaker Boehner to act on his pledge that he “look[s] forward to working to resolve this issue [FOIA reform] early in the new Congress.”  FOIA champions Senators Leahy, Cornyn, and Grassley remain in the Senate Judiciary Committee; these senators have an impressive history of defending and working to reform FOIA, no matter which party is in the majorly.  Replacing Representative Issa on the House Oversight Committee is Jason Chaffetz (R-Ut); Democratic FOIA champion Elijah Cummings remains.  Encouragingly, Chaffetz has said he “wants to address the Freedom of Information Act and the difficulties many have in getting the executive branch to comply with FOIA requests.”  Both houses should immediately reintroduce the FOIA bill.  More than 440 members who voted for FOIA reform remain in Congress.

On Saturday, December 20, the New York Times editorial board called for the 114th Congress to revisit the freedom to see government records.

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