- Jennifer Peters
In 2017, news comes from the Commander in Chief via Twitter posts, and government press briefings have become more combative. The government doesn’t operate in the ways we’ve become accustomed to, and journalists have not been given the kind of access to those doing the governing that they’ve had in the past. But there are still ways to watch the government and get the sources needed without relying on nameless, faceless entities: Freedom of Information Act (FOIA) records requests.
Jason Leopold is a senior investigative reporter for BuzzFeed News, but he is more widely recognized as the “FOIA terrorist,” a nickname given to him by a federal official because of the overwhelming number of FOIA requests he’s submitted to federal agencies.
Leopold is now recognized as the news industry’s leading FOIA expert, filing more FOIA-related lawsuits than any other news entity except The New York Times. He has, on his own, filed thousands of FOIA requests, and has been responsible for helping change the way agencies respond to those requests through his lawsuits, making the process a better one not only for himself, but for other journalists and the public as a whole.
We spoke to Leopold about what he’s learned during his years utilizing FOIA, how the news industry has changed in that time and what lessons journalists covering state and local governments can learn from his many (mis)adventures in FOIA-based reporting. The following interview has been condensed from a much longer conversation:
On finding a new way of reporting
Alliance: What was it like going from what some would consider more traditional journalism, relying heavily on sources and “pounding the pavement” to get information, to relying more on documents, which can often involve a much longer reporting process?
Leopold: When I started doing it, it was difficult. I would file numerous requests almost on a daily basis. It got to the point where I was filing hundreds of requests per month. What I was trying to do was build up a pipeline. I knew that [the agencies] would not respond to these requests immediately, but I also knew that eventually, if I built this pipeline up, I would start getting a regular stream of documents in the mail each week, and that’s essentially what happened.
Once I started reporting these stories using documents, and then approaching sources who were familiar with the programs or policies, [my sources] felt much more comfortable talking because they wouldn’t be revealing classified information. So it helped to cultivate additional sources.
On breaking through the existing FOIA myths
Alliance: Was it difficult convincing editors to allow you to work more in FOIA reporting? Considering the time and investment involved in obtaining records, how have you convinced editors that the final product is worth the effort?
Leopold: There is a sort of myth that exists in newsrooms that the Freedom of Information Act doesn’t work well in reporting because if you’re reporting a topic or issue, it needs to be reported now. I’ll give you a great example: Hurricane Harvey. There are probably a lot of records that one could obtain to find out what was going on behind the scenes. Those would make some great stories about the government’s response to [Harvey]. But the kneejerk reaction to that is, “Well, it’s going to take forever to get those records. It may take years.” But there are many ways to try to get those records now.
What happens in newsrooms is they’re thinking of the “smoking gun,” whatever the smoking gun may be, and they assume they’re never going to get that smoking gun through FOIA, so what’s the point? But there are so many other records to ask for. [Leopold discusses in our “FOIA for Everyone” feature the many types of records you should consider requesting
On using FOIA during the Trump presidency
Alliance: The government has changed a lot under President Donald Trump. How has using FOIA changed so far in 2017?
Leopold: Certainly during this administration the use of FOIA is crucial, and we’re certainly seeing a lot more non-government organization-type groups utilizing FOIA. And I’ve seen a lot of lawyers step up and say that they would be willing to file lawsuits on behalf of reporters pro bono, so we’re seeing an uptick in that. What we’re not seeing, though, is an uptick in the release of documents.
If you think about this administration, the eight months that they’ve been in office, there have been numerous, insightful stories that have come out, all of which have been based on anonymous sources. We have yet to see anything that has really been based on documents. It’s frustrating, because I think this administration is governing in such an unorthodox way that agencies are struggling with how to respond to requesters. If they see a tweet from the president and I ask for documents based on a tweet, they’re not sure what to do or how to respond to that. So that is the reason I’ve had to increase my number of lawsuits this year. But there haven’t been many documents that have surfaced this year, and only a few showing what has gone on behind the scenes.
My fear is that the agencies themselves are becoming so backlogged and burdened by these requests, and they’re not sure what to do, so they’re not releasing documents, and that ends up being a turn-off to requesters. FOIA is a tedious process. You have to sit down to write the request, then you have to send it in, and then you get a response from an agency saying maybe you didn’t describe the records you’re looking for well enough, or maybe your request was too broad, and then you have to appeal it. It’s such a tedious process to get an agency to just give you the record. It means that one has to put in the time and effort to do it. If they’re filing requests and they’re not getting anything quickly, I’m worried that may disincentivize them from filing requests. I haven’t seen any evidence of that yet, but it’s possible.
On getting the most out of the documents
Alliance: What about making sure you get all the stories from the documents you receive? Do you ever worry that by looking for a story you already have in mind, that you might be missing out on another equally important story that’s hidden in the documents? And how do you make sure you don’t miss those gems?
Leopold: When I get documents, I give them several reads. The first time is just to give it a read. The second time is reading it to isolate parts for a certain story I’m looking for. Then the final read is to mine it for information. I call it the “meta-FOIA.” I’m looking for additional information in those documents that I was not necessarily looking for to begin with.
That was the case with records I received from the FBI on Donald Trump and his casinos. There were three pages about a threatening phone call that a lawyer who represented investors in Trump’s casino had received, and there was no information about what the threatening phone call was because the FBI did not reveal it, nor would they tell me about it. But this lawyer apparently reported the phone call to the local police department. And that was the clue. I had no idea who the lawyer was, because [the FBI] redacted his name, and I had no idea what the police department was because they redacted that as well. But the FBI left some clues in the documents. One was a zip code. On a whim, I decided to file a request with the police department to see if this person filed any reports on a specific day about a threatening phone call. A week later, the police department found the report, and it happened to be about a threatening phone call [the attorney received] from someone who worked for Donald Trump. So I was able to take the document, because I knew how to read the document, and go the distance with it and turn it into a far bigger story than it would have been if I’d just said, “Some attorney somewhere received a threatening phone call.”
On not giving up
Alliance: You’ve shared a lot of documents that you get that are heavily redacted or just blank, and I mean dozens of pages of black lines — or nothing at all. How do you not let the frustration of those moments get to you?
Leopold: It’s really frustrating, but this is the great thing about FOIA. I may get a document that is heavily redacted, but guess what? I can appeal it.
I never want to throw in the towel, because I know there are many steps I can take before it comes to that. A FOIA request is a battle. You go to war with these agencies to get these records. But the requester has many, many resources to continue to argue for the release of information. It’s not over after you file a request and they deny you.
On using FOIA to regain the public trust in real news
Alliance: How important is FOIA right now? Does this type of reporting help with regaining the public’s trust in the news media?
Leopold: I think that there’s a lot of intense secrecy that exists in federal government. And we also have a public whose trust in news has diminished quite a bit. Again, showcasing a document or documents about what went on behind the scenes, what is going on behind the scenes, is important because in this era of everything being “fake news,” the documents don’t lie. If you’re able to reveal an email or a letter or a memo, some sort of document, it will go a long way in this era of getting the public to trust the efforts of reporters.
For more information on how you can utilize FOIA in your own newsroom, we’ve got even more tips from Jason Leopold here.