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Fighting Over the Freedom of Information Act

Government and Journalists In Conflict Over Access to Information

Among the many issues Congress will take up after it reconvenes this week is a crucial one for environmental journalists and reporters across the newsgathering spectrum: revising the federal Freedom of Information Act to make it easier and faster to get information from the government.

The FOIA was signed into law in 1966, and in the four decades since has enabled journalists, public interest groups and everyday citizens to obtain information about the workings of government. In the news business, the Freedom of Information Act has been used to break stories on such noteworthy topics as the FBI surveillance of antiwar and environmental protesters, conditions at Guantanamo Bay’s prison and health risks posed by a birth control patch.

Yet horror stories abound about lengthy delays in filling requests made to government agencies under the FOIA. Congress is on the verge of mandating that requests are tracked, deadlines enforced and agencies penalized for delays.

The Justice Department is opposed to any revisions. Yet the House and Senate, which both have passed legislation, are expected to hammer out their differences and approve a law.

"The problem is response times dragged out from months to years, whereas the language of the law was to respond within 15 days. Responsiveness needs to be restored," said Joseph A. Davis, the editor of SEJ’s WatchDog newsletter, which tracks secrecy and freedom of information issues. "I think the pattern we’ve seen up to now is the White House does not want to be seen opposing FOIA legislation, and there is no overt veto threat. But the game isn’t over. The Senate bill must be reconciled with the House bill, which is a bit stronger, so it will be somewhere between the two if there’s a compromise. Whatever the final product, it will be at least as strong as the Senate bill."

It costs the government about $300 million a year to try to comply with the law, according to the Justice Department, with 5,000 employees dedicated to the efforts. In 2005, the Government Accountability Office says, about 2.5 million requests were received, up 43 percent from 2002—with a backlog of about 225,000 cases.

A report by the Society of Environmental Journalists’ First Amendment Task Force in September 2005 detailed how journalists covering the environment were finding it increasingly difficult to get information from the government on subjects such as Superfund sites, chemical factories and mining accidents.

The report said that long before the terrorist attacks on Sept. 11, 2001, journalists were subjected to lengthy delays and withholding of information on dubious grounds. The agencies most frequently cited for delaying or for giving incomplete information were the Department of Energy, the Department of Defense, the Food & Drug Administration and the Mine Safety & Health Administration. Some of the 55 reporters surveyed said they had difficulty even finding out the name of the person processing their request, and one said his requests seemed to vanish into the ether.

A report released last month by the Coalition of Journalists for Open Government, called "Still Waiting After All These Years," analyzed FOIA response between 1998 and 2006. It found that during the nine-year period the number of requests processed dropped by 20 percent, the backlog had tripled and the cost of handling a request had risen by 79 percent.

Another piece of legislation Mr. Davis is watching closely is the Toxic Right-to-Know Protection Act, making its way through the Senate. The bill would reverse a recent Environmental Protection Agency rule change to the federal Toxics Release Inventory (TRI) that restricted the public’s right to know about harmful chemicals released from thousands of facilities across the nation and impeded the news media’s ability to report on those risks.

"If it’s passed, journalists will be able to write a lot more local stories about toxic risks," Mr. Davis said. "It restores part of the TRI database that has the most local information. The reporting threshold change took away all numerical information on toxic releases in 1,000 communities nationwide. That’s 1,000 stories about toxic risk that couldn’t be written."

Examples of facilities handling chemicals are sewage treatment and drinking-water facilities, Mr. Davis said, adding that the Bush administration has restricted the amount of public information about toxic releases because of intense lobbying by the chemical industry.

"The administration feels their actions reduce the impact on small business, but that is an argument that has a lot of factual problems," he said. "Small businesses aren’t complaining so much about this. It’s pretty much the big companies that are complaining, because it’s bad PR for the public to know about these releases."

Although the TRI program does not call for reduced toxic releases from facilities such as paint factories and petrochemical plants, the process of public disclosure is seen as a powerful tool for encouraging those facilities to voluntarily decrease such releases. An EPA study showed releases of TRI toxic chemicals, which have been continuously reported since 1988, have decreased by 58 percent.

Another government publication that provides a wealth of information is Environmental Health Perspectives, a highly regarded monthly journal of peer-reviewed research and news on the impact of the environment on human health. It is published by the National Institute of Environmental Health Sciences and its content is available for free online. But Mr. Davis said there are ongoing attempts to cut the budget or to farm it out commercially, and although it has thus far survived, he and other environmental journalists are keeping a close eye on the situation so as not to lose a valuable information resource.

Attendees will find several sessions at the SEJ conference relating to Freedom of Information issues. They include "The Painless FOIA Letter," with Ken Ward Jr. of the Charleston (S.C.) Gazette and FOI attorney Pat McGinley; "Care and Feeding of Whistleblowers, Leakers and Inside Sources," exploring what to do when an FOIA request is refused or redacted; and "Exploiting Databases: Environmental Indicators, Risk Screening and TRI," a workshop on the EPA database that offers a powerful tool to reporters covering the local impacts of toxic pollution.

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