Team Infidel
Forum Spin Doctor
New York Times
May 11, 2008
Pg. WK12
The Public Editor
By Clark Hoyt
NINA BERNSTEIN, a Times reporter, wrote a front-page article last June about the deaths of prisoners in the fastest-growing form of incarceration in America, immigration detention.
Civil rights attorneys believed that, since the start of 2004, about 20 people had died while in custody facing possible deportation, but a spokeswoman for the federal immigration agency told Bernstein a surprising fact: the number was 62. Bernstein asked for details, like who they were and how they died. The spokeswoman refused, so Bernstein did what reporters often do — she filed a request under the federal Freedom of Information Act, known as FOIA, for what she believed should be public records. Although the law required the agency to answer such a simple request within 20 business days, Immigration and Customs Enforcement initially responded the way many agencies do — with silence.
Bernstein, who has a busy beat, immigration in the New York area, wrote her article without the details and moved on. But months later, right around Thanksgiving, she received an envelope containing a chart listing the people who had died in immigration detention — now 66 of them — with their dates of birth and death, the locations where they had been held, where they had died and the causes of death. Her FOIA request had been granted. That led Bernstein to a front-page article published last Monday about Boubacar Bah, a 52-year-old tailor from Guinea, who fell while in detention, received no medical care for 15 hours and died of severe head injuries.
Times reporters use FOIA aggressively, and it has been central to two major stories in just the last three weeks — Bernstein’s and an article by David Barstow on April 20 about a Pentagon program to cozy up to military analysts on television and radio in hopes of generating favorable coverage of the administration’s war on terror. But it is increasingly difficult to pry records that should be open out of federal agencies. A study last year by the Coalition of Journalists for Open Government found that FOIA requests were becoming more backlogged, waits for information were getting longer and agencies were saying “no” more often, using one of nine exemptions in the law for such considerations as national security or privacy.
Though late, at least Bernstein got records without having to go to court. The Times was not so fortunate in Barstow’s case, which seemed to show that an agency that does not want to obey the law can find a million creative ways to delay coughing up information that the public has a clear right to know.
Barstow first asked more than two years ago, on April 28, 2006, for records describing the Defense Department’s involvement with the analysts, most of them retired officers, many with business dealings with the Pentagon. He said he wanted transcripts of briefings and conference calls, records of trips and any documents describing the Pentagon’s strategy and objectives in what turned out to be a carefully planned program to try to, as Barstow’s article said, “transform the analysts into a kind of media Trojan horse.”
As the law provides, he asked for expedited handling of his request. He was turned down, though he said the Pentagon did not tell him for a month after the decision. It said the information he wanted did not deal with “a breaking news story of public interest.”
Barstow appealed, arguing that the war on terror was by definition a breaking news story and certainly of public interest. The appeal was denied on Aug. 20, 2006, with bizarre reasoning familiar to anyone who has tried to wrest public information from a federal agency that does not want it released. “Your request is not for information on the war on terror,” the denial said. “It is for Department of Defense interactions with military and security analysts who discuss the war on terror. Therefore, you did not establish a compelling need for the information you requested.”
Barstow kept pressing and two months later received 687 pages of documents, mostly, he said, talking points and other briefing documents representing only a small portion of what he had requested.
A long succession of phone calls and written appeals, some from David McCraw, a vice president and assistant general counsel for The New York Times Company, prompted a trickle of additional material. Last summer, the Pentagon gave Barstow transcripts of briefings received by the analysts, with large portions blacked out. Barstow appealed the deletions, saying it was “ludicrous” to withhold material disclosed to selected representatives of the news media in a briefing. Two months later, the Pentagon relented — and on the same day gave Barstow another transcript, of a briefing with Donald Rumsfeld, the defense secretary, with more deletions.
The Times, committed to spending resources on important FOIA matters even during a time of economic stress for newspapers, took the Pentagon to court last fall. Under the supervision of a federal district judge, Richard J. Sullivan, The Times and an assistant United States attorney representing the Pentagon agreed to deadlines for producing the records Barstow wanted. The Pentagon kept missing the deadlines.
At a hearing in February, Sullivan said the Pentagon was playing “cute” and refused to give any more extensions. “Two years is a long time,” he said. But in April, the parties were back in his courtroom, with the Pentagon pleading for more time. Sullivan was having none of it. “My orders have been issued since November,” he said. “I am not used to having to do this five or six times.” The judge threatened to bring Pentagon officials into court “to explain the delay and why they shouldn’t be held in contempt.”
With the records it had already obtained, The Times published Barstow’s article the following Sunday. Three days later, the Pentagon gave Barstow 2,800 more pages. His reporting continues. FOIA, he told me, has become “a cruel joke.”
Late last year, Congress passed the Open Government Act of 2007, with the intention of forcing better compliance with FOIA and heading off situations like Bernstein’s and Barstow’s. (Full disclosure: I testified in favor of the law as a representative of the Sunshine in Government Initiative, a coalition of 10 news organizations.) President Bush signed it on the last day of the year, but his administration quickly set about trying to dismantle one of its key features, an independent ombudsman who could mediate FOIA disputes before they turn into expensive lawsuits, like the one The Times is still pursuing.
The administration proposed no financing for the new office and tried to move its responsibilities to the Justice Department, which defends agencies trying to withhold information. Senators Patrick Leahy of Vermont and John Cornyn of Texas wrote to the White House last week to protest the transfer of the ombudsman, saying it would violate the law.
Leahy is a liberal Democrat and Cornyn is a conservative Republican, and while they do not agree on a lot of issues, they agree that bad things can happen when a government tries to hide the records of its actions.
May 11, 2008
Pg. WK12
The Public Editor
By Clark Hoyt
NINA BERNSTEIN, a Times reporter, wrote a front-page article last June about the deaths of prisoners in the fastest-growing form of incarceration in America, immigration detention.
Civil rights attorneys believed that, since the start of 2004, about 20 people had died while in custody facing possible deportation, but a spokeswoman for the federal immigration agency told Bernstein a surprising fact: the number was 62. Bernstein asked for details, like who they were and how they died. The spokeswoman refused, so Bernstein did what reporters often do — she filed a request under the federal Freedom of Information Act, known as FOIA, for what she believed should be public records. Although the law required the agency to answer such a simple request within 20 business days, Immigration and Customs Enforcement initially responded the way many agencies do — with silence.
Bernstein, who has a busy beat, immigration in the New York area, wrote her article without the details and moved on. But months later, right around Thanksgiving, she received an envelope containing a chart listing the people who had died in immigration detention — now 66 of them — with their dates of birth and death, the locations where they had been held, where they had died and the causes of death. Her FOIA request had been granted. That led Bernstein to a front-page article published last Monday about Boubacar Bah, a 52-year-old tailor from Guinea, who fell while in detention, received no medical care for 15 hours and died of severe head injuries.
Times reporters use FOIA aggressively, and it has been central to two major stories in just the last three weeks — Bernstein’s and an article by David Barstow on April 20 about a Pentagon program to cozy up to military analysts on television and radio in hopes of generating favorable coverage of the administration’s war on terror. But it is increasingly difficult to pry records that should be open out of federal agencies. A study last year by the Coalition of Journalists for Open Government found that FOIA requests were becoming more backlogged, waits for information were getting longer and agencies were saying “no” more often, using one of nine exemptions in the law for such considerations as national security or privacy.
Though late, at least Bernstein got records without having to go to court. The Times was not so fortunate in Barstow’s case, which seemed to show that an agency that does not want to obey the law can find a million creative ways to delay coughing up information that the public has a clear right to know.
Barstow first asked more than two years ago, on April 28, 2006, for records describing the Defense Department’s involvement with the analysts, most of them retired officers, many with business dealings with the Pentagon. He said he wanted transcripts of briefings and conference calls, records of trips and any documents describing the Pentagon’s strategy and objectives in what turned out to be a carefully planned program to try to, as Barstow’s article said, “transform the analysts into a kind of media Trojan horse.”
As the law provides, he asked for expedited handling of his request. He was turned down, though he said the Pentagon did not tell him for a month after the decision. It said the information he wanted did not deal with “a breaking news story of public interest.”
Barstow appealed, arguing that the war on terror was by definition a breaking news story and certainly of public interest. The appeal was denied on Aug. 20, 2006, with bizarre reasoning familiar to anyone who has tried to wrest public information from a federal agency that does not want it released. “Your request is not for information on the war on terror,” the denial said. “It is for Department of Defense interactions with military and security analysts who discuss the war on terror. Therefore, you did not establish a compelling need for the information you requested.”
Barstow kept pressing and two months later received 687 pages of documents, mostly, he said, talking points and other briefing documents representing only a small portion of what he had requested.
A long succession of phone calls and written appeals, some from David McCraw, a vice president and assistant general counsel for The New York Times Company, prompted a trickle of additional material. Last summer, the Pentagon gave Barstow transcripts of briefings received by the analysts, with large portions blacked out. Barstow appealed the deletions, saying it was “ludicrous” to withhold material disclosed to selected representatives of the news media in a briefing. Two months later, the Pentagon relented — and on the same day gave Barstow another transcript, of a briefing with Donald Rumsfeld, the defense secretary, with more deletions.
The Times, committed to spending resources on important FOIA matters even during a time of economic stress for newspapers, took the Pentagon to court last fall. Under the supervision of a federal district judge, Richard J. Sullivan, The Times and an assistant United States attorney representing the Pentagon agreed to deadlines for producing the records Barstow wanted. The Pentagon kept missing the deadlines.
At a hearing in February, Sullivan said the Pentagon was playing “cute” and refused to give any more extensions. “Two years is a long time,” he said. But in April, the parties were back in his courtroom, with the Pentagon pleading for more time. Sullivan was having none of it. “My orders have been issued since November,” he said. “I am not used to having to do this five or six times.” The judge threatened to bring Pentagon officials into court “to explain the delay and why they shouldn’t be held in contempt.”
With the records it had already obtained, The Times published Barstow’s article the following Sunday. Three days later, the Pentagon gave Barstow 2,800 more pages. His reporting continues. FOIA, he told me, has become “a cruel joke.”
Late last year, Congress passed the Open Government Act of 2007, with the intention of forcing better compliance with FOIA and heading off situations like Bernstein’s and Barstow’s. (Full disclosure: I testified in favor of the law as a representative of the Sunshine in Government Initiative, a coalition of 10 news organizations.) President Bush signed it on the last day of the year, but his administration quickly set about trying to dismantle one of its key features, an independent ombudsman who could mediate FOIA disputes before they turn into expensive lawsuits, like the one The Times is still pursuing.
The administration proposed no financing for the new office and tried to move its responsibilities to the Justice Department, which defends agencies trying to withhold information. Senators Patrick Leahy of Vermont and John Cornyn of Texas wrote to the White House last week to protest the transfer of the ombudsman, saying it would violate the law.
Leahy is a liberal Democrat and Cornyn is a conservative Republican, and while they do not agree on a lot of issues, they agree that bad things can happen when a government tries to hide the records of its actions.