In Depth

Battle for the Right to Know

First Amendment Task Force Out to Get the Facts About Government

The Freedom of Information Act (FOIA), signed into law by President Lyndon B. Johnson on July 4, 1966, has never been popular in Washington but remains the fiercely defended province of journalists throughout the U.S.

“FOIA is one of the absolute key tools that all journalists should and must use to get information from the government to inform their readers,” said Ken Ward Jr., chair of SEJ’s First Amendment Task Force and environmental reporter at the Charleston Gazette. “In an area like environmental journalism, where so much of the reporting necessarily focuses on the adequacy—and inadequacy—of government regulatory efforts, it is vital that journalists use the FOIA to obtain information to inform their readers, viewers and listeners.”

SEJ’s First Amendment Task Force was established in March 2002 to “address freedom-of-information, right-to-know and other news gathering issues of concern to the pursuit of environmental journalism.” The task force is responsible to monitor issues impacting the quality and visibility of environmental journalism, speak or write to actions that limit access to information, and provide SEJ members with services to help them obtain and use public records, and to deal with efforts to withhold those records.

The past eight years haven’t been easy times for reporters attempting to gather information via FOIA, said Mr. Ward. “FOIA is taking longer and longer, and agencies have become emboldened by the Bush administration’s advocacy of secretive government,” he said.

Mr. Ward pointed out a “horror story” involving Mark Schleifstein, a reporter with the New Orleans Times Picayune, who tried to report on environmental issues in the aftermath of Hurricane Katrina. Mr. Schleifstein was stonewalled by the Environmental Protection Agency, which ignored his urgent request for detailed information about chemical releases and other environmental problems. In the pages of Grist, an online newsletter on environmental issues, reporter David Roberts noted, “This case was particularly troublesome considering Schleifstein has been in high demand for media interviews because of his expertise.” Mr. Schleifstein, along with numerous other reporters, filed a request under FOIA, but still received no response.

Where’s the Data?

SEJ also sent a letter to EPA to demand quick action, but the EPA’s next-day press conference revealed little hard data. “The agency mentioned it had tested for 100 chemical compounds and other pollutants but didn’t release the data,” said Mr. Roberts. “Americans need to know what specific threats exist and what the government is doing about them. They are paying for the raw data and they deserve to see it. Now.”

That shocking case has been a hallmark of the difficulties besetting journalists seeking information from the government during this administration. “Frankly, they can slow you down to the point where the story becomes moot,” said CNN correspondent Miles O’Brien. “In this administration, there’s been so much that we haven’t seen. There’s a lot out in the public domain, but imagine what’s hidden and bottled up.”

Mr. O’Brien has struggled to obtain information, especially from NASA. “It’s amazing how they sit on that stuff,” he said. “Anything that comes close to pre-decisional meetings, where they’ll discuss the safety of launching and so on, they’ll bottle it up. I FOIA’ed it but you have to be very specific about what you want without knowing what’s there. It was a pretty successful stonewall. I ended up doing the story, but it wasn’t as powerful as I wanted.”

SEJ President Tim Wheeler, a reporter at The Baltimore Sun, described a looming issue to environmental journalists related to the concept of freedom of information: access to information found within the National Parks Service. “Congress passed a law that they needed to regulate filming activities on Parks Service and public lands,” he said. “The parks and park directors have interpreted that variously to require permits of people doing film or audio recordings or even taking pictures.” A freelance radio journalist alerted SEJ’s First Amendment Task Force to the problem when she tried to interview a biologist working for the Parks System and was sent an application for a permit that cost $200. “The park said it was a big misunderstanding, but we’ve found out that depending on the park, you may or may not be asked to get a permit and pay a fee,” Mr. Wheeler said. “As long as we’re not disrupting the wildlife or the park, our belief is that we shouldn’t be regulated.”

Mr. Wheeler testified before Congress in December on that issue, the SEJ having made common cause with numerous broadcaster and photographer organizations, including RTNDA. “One of the challenges is that the media are changing,” he said. “It’s hard to pin down exactly who is a journalist, and that’s one of the sticky issues. If we try to write this in a way that exempts journalists, say the feds, who should we exempt?”

“There are more and more freelancers and only a few are on assignment,” he said. “What about bloggers who are independent? What if you’re doing something on spec? You can’t get ideas until you’ve done research. Some of us are on duty all the time. If you go into a park with a camera and happen on something that would be a good story, what do you do if a park ranger asks for your pass? That’s the kind of thing we’re trying to prevent. People shouldn’t feel constrained to take notes and photos.”

One upside in the whole debate about freedom of information is just how much more has become available to anyone via the Internet. Some journalists suggest that the government, whenever possible, simply put its records online at the same time they’re generated. Some of the advocates of this position point out that, regardless of the vagaries of different presidential administrations, huge numbers of FOIA requests as well as the government agencies’ own antiquated record management slow down the ability of the FOIA system to be responsive in a timely manner.

Recent events have highlighted the ongoing struggle for a more responsive FOIA. Open-government activists have renewed calls for quick implementation of the latest Freedom of Information reforms, including the establishment of an ombudsman office, but the reforms were slowed by Bush administration efforts to move the new office from the National Archives to the Justice Department. On May 6, 2008, SEJ joined other journalism groups in a “friend of the court” suit seeking access to public officials’ e-mails under state law. And environmental groups felt the chill on Feb. 1, 2008, when Environment Canada muzzled its scientists around the country.

That underlines why many environmental journalists think like CNN’s Mr. O’Brien. “I think the more we upset the system, the better,” he said. “The body of evidence of government not doing its job is so great that, in a way, you don’t have to FOIA to get great stories. But the more you do it, the better.”