Jason Leopold has used the Freedom of Information Act to break a number of major stories, from the drugging of Department of Defense detainees to the Biblical justifications the Air Force used for nuclear war to a drawn-out battle with the FBI over Occupy Wall Street documents.
So Jason was a natural for kicking off the return of our Requester’s Voice, and he very graciously shared how he got involved in using FOIA in the first place, and what his secret is in shaking documents loose from bureaucracies that seem built to avoid disclosure at all costs (Follow Jason on Twitter and his articles here).
You call yourself a “FOIA terrorist.” What does that mean, and why is FOIA such a central part of what you do?
Actually, “FOIA terrorist” is the term that was used to describe me by a certain government agency that was apparently annoyed by the number of FOIA requests and appeals I had filed. I found out about it during a phone call with a FOIA analyst (who has since become an important open government source for me) who said he saw an email from his boss that said, “the FOIA terrorist strikes again. We just got two dozen new requests from him.” I actually liked the term because it made me feel that I was doing my job and doing it well if it meant I was angering government officials.
What areas do you cover in your reporting, and where are you writing these days?
I focus on Guantanamo, national security, civil liberties, human rights, open government and counterterrorism. I recently left the online publication, Truthout, where I worked as lead investigative reporter and am now a contributor to Al Jazeera English on matters pertaining to Guantanamo and I sometimes post news stories on the website of The Freedom of the Press Foundation, which has generously supported my work on Guantanamo with a crowdfunding grant. I don’t write for any other news organizations at this time although I would like to.
Five years ago, I started a website called The Public Record (the name is paying homage to I.F. Stone, who said there is an abundance of information in the public record if you take the time to look for it) and have been publishing some stories there.
What was your first request, and how did it go? Why did you try using public records in the first place?
The first request I filed was for the torture memo co-written by former Justice Department attorney John Yoo. My request was denied. In fact, I think I may have actually received a Glomar response for that one. I started to use FOIA because it became increasingly difficult to get sources I had cultivated to go on the record and discuss the explosive allegations they were leveling about government program, policies and activities. I did not have the luxury of working for a mainstream or well-known publication where the public would be much more willing to accept the word of anonymous sources. The response I often saw from people who read my reports quoting anonymous sources was “why is someone speaking to an independent reporter” instead of The New York Times.
So, I felt that if I could obtain documents via FOIA to back up the assertions these sources had leveled it would strengthen my reporting and lead the public to trust my work more. But my attempts to pry loose documents during the Bush years was largely unsuccessful and so I gave up for a while on FOIA. That was also due to the fact that I was not very well educated on writing good FOIA requests, which is crucial when trying to obtain documents, or appeals to the numerous denials I had received.
But about three years ago, I met a member of the military who was a frequent FOIA requester, and he became my FOIA mentor. He had turned over to me some explosive documents that showed the Air Force was using an ex-Nazi and passages from the Bible to teaching young missile officers about the ethics and morals of launching nuclear weapons. He had obtained those documents through a FOIA request.
I wrote up a story and it went viral and resulted in the Air Force canceling its ethics training, which had been in place for more than two decades. I was floored by the response to my story and, naturally, wanted to continue doing that type of reporting whereby I would use government documents to report the news. So my military source gave me a crash course in writing good FOIAs and appeals. Since then, I have been very successful in prying loose documents, classified documents, on a wide-range of issues.
How many FOIA requests do you file?
I try to file at least a dozen FOIAs a week with various agencies. Since the revelations in The Guardian and Washington Post about the NSA’s surveillance activities I have filed about two dozen with that agency seeking everything from talking points to memos and emails about programs and internal responses to Edward Snowden’s leak. I should also note that I file Mandatory Declassification Reviews, or MDRs, where a panel is forced to review a specific document and determine whether it can be declassified. MDRs have a far higher success rate than FOIAs. But with MDRs you have to know exactly what you are looking for and you need to know that the document you are seeking is in fact classified. The great thing about MDRs is the appeals process if the request is denied. You have a greater chance of obtaining the classified document during the MDR appeals process.
Additionally, I use news reports to find out what anonymous sources are telling other reporters about certain government activities, policies and/or programs and then I fire off FOIAs to those agencies for documents about it. One of the keys to obtaining documents is filing a good FOIA request so take the time to review requests written by other individuals. Additionally, you likely won’t receive any documents if you write broad requests for records so avoid that and try to focus on the specific material you are seeking. If you receive a denial always file an appeal. If you’re filing a request with the FBI be sure to advise the agency to search its various databases/files. Be sure to tell them to conduct a cross-reference and text search for materials.
Often times, the FBI won’t conduct such a search unless they are told. I always encourage requesters to file FOIAs for the “processing notes” and administrative case files related to their requests as it provides valuable insight as to what takes place behind the scenes when you file a FOIA and how your request is handled. Once you receive a case number wait a couple of months and file a FOIA for the processing notes related to that case number. Finally, by law all government agencies have to provide requesters with an estimated date of completion. National Security Counselors, which is headed by a fantastic FOIA attorney named Kel McClanahan, and I sued several government agencies because they were not abiding by the law when I sought that information. We won and they now provide that information when asked.
You do a lot of on-the-ground reporting, like spending time at Gitmo, as well as a lot of FOIA requests. How do you balance those? Where does FOIA shine as a journalistic tool, and where does it fall short?
That’s a great question. When reporting on Guantanamo I will often speak to attorneys, former guards, even former prisoners. Attorneys will tell me things they have heard from their clients, the prisoners. Guards will tell me what they witnessed or experienced during their deployment. I will report that and always seek out a response from the Pentagon and/or Guantanamo officials. But I will also go a step further. Based on what I am being told I will file FOIAs with SOUTHCOM for all documents pertaining to these allegations. Because at Guantanamo, for the most part, everything that happens is the result of some sort of order, directive or standard operating procedure. In other words, there’s a paper trail and I’ll do everything in my power to gain access to the paper trail. A perfect example is the Guantanamo hunger-strike/force-feeding policy that I obtained in May. It confirms what many of the prisoners have been saying about the brutality of the force-feeding process.
FOIA shines when an agency follows the law closely and turns over responsive records to the requester, obviously. But certain agencies, such as the FBI, will go out of its way to skirt the law by performing inadequate searches, for example. I still cannot believe the FBI responded to my October 2011 request for Occupy Wall Street documents by stating they did not locate responsive records. I challenged their search and DOJ upheld the denial and said FBI’s search was adequate. I had to sue and, sure enough, a year later I received several hundred pages from the FBI related to the agency’s monitoring of OWS. But by that time, public interest in Occupy had waned so the documents, while valuable, lost its news value. Well played FBI.
What advice do you have for a first time FOIA filer?
FOIA requesters must know everything there is to know about the subject matter for which they are seeking responsive records. I would also advise first time requesters to read FOIA logs and file FOIAs for administrative case files.
Do you think the media spends enough time sifting through documents?
No, and it’s frustrating that the media doesn’t. A perfect example is a FOIA I filed last September with United States Southern Command for a report they prepared as well as other documents related to the death of a Guantanamo prisoner named Adnan Latif, whose death was deemed to be a suicide. Two weeks ago, I obtained that report. For some reason, SOUTHCOM decided to send the 79-page document to other reporters after sending it to me, thereby depriving me of the opportunity to report it exclusively. What disturbed me is that reporting by other media on this document did not capture the explosive nature of the material. The report is a smoking gun and it shows that there were leadership failures at the prison, a complete breakdown of all of the safeguards and also raises important questions about the quality of the medical care prisoners receive. Moreover, it is a direct link to the hunger strike now in its fifth month.
Given all of the controversy surrounding Guantanamo, these are revelations that should be front-page news. But those facts weren’t reported by other media who clearly only read the executive summary of the report. As such, an important opportunity to spark debate was lost. I ended up spending a week with the document and published a 4,700 word story highlighting what I considered to be some of the more explosive revelations. I feel that it was much more important to come out with a better story than it was to be first
Where did you learn about the process?
By reading other requesters FOIAs, appeals and denials and FOIA lawsuits. I also speak with FOIA attorneys on a regular basis. Muckrock has also been an incredibly valuable tool for me in terms of learning about what goes on at the state and local level with regard to open government. The National Security Archive has an amazing blog called Unredacted, which I read regularly and their online guide to filing FOIAs and MDRs is the single best tool I have discovered about the process. But nothing beats hands-on learning. By filing so many FOIAs I have learned about and become an expert in the law.
Any tips or tricks you keep in mind as you go hunting for the next big story?
I always file FOIAs for FOIA logs with every government agency. I use those FOIA logs as a tip sheet to find out what other people are requesting and, if I see something interesting, I will file a FOIA for the same records. Given the fact that I cover issues where much of the information is classified, I no longer can rely on sources to provide me with information about these issues because of the Obama administration’s war on leaks. So that means I have had to come up with new ways to try and obtain the information and continue reporting on these matters. Despite the flaws in the law, FOIA is a powerful tool and I have had much success prying loose documents.
Image by Ryan J. Reilly via American Journalism Review