Beltway Update

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by Aimee Edmondson, NFOIC contributing writer

Nobody has been more surprised than Lucy Dalglish to see such widespread congressional support of a federal shield law to protect the confidentiality of reporters’ sources.

“If you told me this would happen four years ago, I would be asking ‘what are you smoking?’” said Dalglish, executive director of The Reporters Committee for Freedom of the Press. She was speaking during a “Beltway Update” panel at the National Freedom of Information Coalition’s 2008 FOI Summit in Philadelphia.

The House passed a federal shield law by a veto-proof 398-21 last year. A conservative Republican, Rep. Mike Pence of Indiana, led the push, insisting that a free press was the only check on government power. Bipartisan support has Dalglish very optimistic.

“The Senate version is dramatically watered down,” Dalglish said. “It’s more likely to pass.” She is expecting a vote by mid-June. “We need 67 votes for a veto-proof majority. By my count we have 70.”

The Bush administration has lobbied against any shield law, insisting that it would hamper the government’s ability to find leaks that pose a risk to national security. However, the Senate bill provides exemptions for cases that involve ongoing terrorism investigations. 

“It won’t do much for high-interest classified information, but it will cover reporters doing nuts and bolts of day to day journalism,” Dalglish said.

Another panelist, Rick Blum, coordinator of the Sunshine in Government Initiative, has spent nearly a decade in Washington advocating for open access.

“It’s much easier to stop something in Washington than it is to get something passed. So we focus on the defense,” he said.

He stays busy “wacking down” efforts to make even more government records confidential. Recently, Blum’s organization fought a secrecy provision in the Farm Bill.

“A lot of people don’t want to have their farm on some list, and there was a small provision in the bill to make the information confidential. We hope we’ve taken care of the problem,” Blum said.

Meredith Fuchs, general counsel of the independent, non-profit National Security Archive at George Washington University, discussed successful efforts to alter who pays attorney’s fees in FOI cases.

Typically, if you are the prevailing party in a lawsuit, the other party pays your attorney’s fees. In a recent case, the U.S. Supreme Court said you can only get fees paid if you get a court order granting the release of records.

“It’s a tool to increase stonewalling. If they don’t want to release the records, they delay and see if you care enough,” said Fuchs, who oversees FOI litigation, advocates for open government and lectures on access to public information on behalf of the archive. (The non-government archive collects declassified information and makes it available to the public.)

Fuchs said the public officials could release the records before the judge decides the case. Then you don’t get attorney’s fees because there was no order granting the release of the records.

“They can string you along and on the eve of trial give you what you want,” added Dalglish.

As a result, advocates for open access pushed for an amendment. If you file suit and the agency later changes its position before the case gets to trial, you are eligible for attorney’s fees under the law.

Attorney Chuck Tobin had quite a battle for his own fees in a high profile FOI case in Florida.

After hurricanes Charley, Frances, Ivan and Jeanne blew through both coasts of the state in 2004, the Federal Emergency Management Agency (FEMA) sent armies of inspectors to investigate aid claims. FEMA paid out $5.3 billion in the disaster areas.

Government auditors later found a high percentage fraud and mismanagement in an investigation of three percent (a sampling) of FEMA’s disbursements, and reporters sought to expand on that investigation to provide more details about how taxpayer dollars were spent.

After FEMA officials refused to release the names and addresses of aid recipients, Gannett’s newspapers The News-Press, Pensacola News Journal and FLORIDA TODAY filed suits under FOIA. In a separate case the Tribune Company’s Sun-Sentinel filed suit.

“Obviously reporters wanted to fan out on the ground,” said Tobin, a former journalist who advises newsrooms on access issues, reporter’s privilege, FOIA and other First Amendment matters.

FEMA attorneys argued that FOIA exemption 6 allowed the government to refuse to turn over the documents because doing so would constitute a “clearly unwarranted” invasion of privacy. Attorneys for the newspapers argued that the strong public interest in how FEMA performed during catastrophes outweighed the privacy concerns.

In the Gannett case in Fort Myers, a federal judge ruled that the privacy of the aid recipients outweighed the public interest in receiving their names and addresses.

“The judge said one of the most invasive things you can do is knock on doors and ask people about their money,” Tobin said.

In Fort Lauderdale in the Sun-Sentinel case, the court ruled that the addresses but not the names should be released. It reasoned that without the addresses it would be impossible to determine the extent of fraud, mismanagement and wasteful spending.

So with the split decision, two federal judges disagreeing with each other, the cases went up to the U.S. Court of Appeals for the Eleventh Circuit. The Court held that the addresses should be public.

“The court said individuals are under no obligation to speak with reporters who knock on their doors,” Tobin said.

The reasoning, according to the court: This is a small price to pay for living in an open society and receiving aid during a catastrophe.

FEMA then sent out more than one million letters to Floridians, saying officials had been forced to invade their privacy. It also dragged its feet on attorney’s fees, finally settling on $270,000. This came out of the agency’s budget, so taxpayers had to pay yet again.

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