Vice News investigative reporter Jason Leopold on Tuesday raised journalism’s eyebrow with a story that he told in testimony regarding the Freedom of Information Act (FOIA) before Jason Chaffetz’s (R-Utah) House Committee on Oversight and Government Reform. Amid abundant examples of FOIA futility, Leopold told lawmakers that he’d requested the reports of the Pentagon’s Office of Net Assessment — basically an in-house think tank for the military — but failed to secure them.
Then this happened: “Recently they said that ‘We’ll give you some documents as long as you promise to never file a FOIA request again and don’t have anyone else file a FOIA request on your behalf,'” testified Leopold.
That sounded extreme — extreme enough to explain in greater depth.
On July 8, 2014, Leopold, who calls himself a “FOIA terrorist,” submitted via e-mail a FOIA request for “the index of all reports prepared by the Office of Net Assessment from 2009 through 2014,” according to his complaint in the case. Ten days later, he got word that “no responsive records could be located.” Huh, he responded — what about this Talking Points Memo article that references the ONA index? After some back-and-forth over the matter — and no documents — Leopold sued for them in October 2014.
The litigation resulted in a series of negotiations over the documents, though no agreement. A recent status report in the case includes this explanation from the government as to why Leopold’s request cannot be fulfilled:
ONA is a small office and the Plaintiff’s request for hundreds of documents within a very short period of time is too many and too fast for that office to handle. Further the reports are not maintained in a chronological order that would permit processing and producing the reports by a specific month and day. The reports are maintained in a relatively random manner and must be processed in a “random” order within the 6 year date range.
Bold text inserted to highlight a national security problem even though this is a media blog. According to this document, ONA is charged with generating “net assessments of the standing, trends, and future prospects of U.S. military capabilities and military potential in comparison with those of other countries or groups of countries so as to identify emerging or future threats or opportunities for the United States.” And our Pentagon is keeping these threat reports in a “relatively random manner”?!
Attorney Jeffrey Light, a solo practitioner who specializes in FOIA and represents Leopold, tells the Erik Wemple Blog that the ONA had completed more reports than his client had expected — about 1,000 of them in the requested time period. The reports are thick, too. So the deal proposed by the Pentagon, says Light, is that they’d cough up 50 reports selected at random — not selected by Leopold. Such madness bears repeating, so let’s quote from the status report. The government, notes plaintiff Leopold, has “insisted that it be permitted to produce a small number of ‘random’ reports of its own choosing instead of working with Plaintiff to narrow the request based on an objective criteria such as subject matter, keyword, format, title, or date.”
Of course, not only does the agency want to choose the reports. “And then they said, ‘We don’t want you coming back and doing another lawsuit and asking for the next 50,'” says Light. Nor did they want another requester working on Leopold’s behalf, according to Light. (The Pentagon told the Erik Wemple Blog on Tuesday that it doesn’t comment on litigation).
In the House hearing, Leopold alleged that the Pentagon think tank couldn’t “find the reports.” On that front, Light says that the office has found it “too burdensome to make a list of the titles because they don’t know what they have.”
The parties will continue hashing this out in court.