The Washington PostDemocracy Dies in Darkness

The time the New York Times was told to wait 15 years for FOIA docs

In testimony today before the House oversight and government reform committee, the New York Times released 37 pages of documentation of five frustrating experiences with the Freedom of Information Act (FOIA), a broken statute in need of reform.

A highlight relates to a FOIA request that New York Times reporter David Barstow sent to the Department of Labor in 2002. Among other things, he was looking for “the LWDII rates for all worksites that received a high-rate notification from the [Occupational Safety and health Administration] in 2002,” as summed up in subsequent litigation. In plain English, the request sought information on workplaces with high rates of “Lost Work Day Illness and Injury” rates; 13,000 workplaces in all.

The Labor Department, in a lengthy letter to the New York Times, went into great detail about all the work required to complete the job. It would have to give those 13,000 workplaces an opportunity to “file objection to disclosure,” noted the department. The LWDII rates, argued the Labor Department, may well be privileged and confidential commercial information protected by FOIA Exemption 4. The back-and-forth with the companies would entail 2.3 hours per workplace, estimated the Department of Labor. “Approximately 30,290 staff hours, or approximately 15 work-years’ of effort, will have to be expended to respond to your request as currently written,” the department said.

Fifteen years, as it turned out, was a bit beyond Barstow’s deadline.

Instead of waiting, the New York Times filed suit in the case in the Southern District of New York. The court delivered a slam-dunk victory for the paper, ordering the release of the records sought by the newspaper. Judge Shira A. Scheindlin wrote, among other things:

In sum, I conclude that Exemption 4 does not apply to the LWDII rates the Times requested. Release of the rates is not tantamount to releasing confidential commercial information because there is little, if any, possibility that the rates can be “reverse-engineered.” And even if it is possible to use the rates to determine employee hours, the DOL has failed to persuade the Court that employee hours for the year 2000 constitute confidential commercial information.

David McCraw, the New York Times’s assistant general counsel, writes in his letter to the committee that FOIA requests commonly seek information that has been submitted to the government by private companies. FOIA, he notes, allows the federal agency to check with those companies regarding any possible objections. “the process often becomes a source of extreme delay,” writes McCraw.

Had the New York Times just showed a bit of patience — instead of getting all litigious — it would be getting its data in just a few years from now.