Vice News investigative reporter Jason Leopold made headlines last week in a House hearing on the Freedom of Information Act (FOIA) when he said that the Pentagon had agreed to cooperate with him on a shaky condition. “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,'” said Leopold before the House Committee on Oversight and Government Reform.
“How is that legal?” asked Rep. Mark DeSaulnier (D-Calif.).
Leopold and his attorney, Jeffrey Light, got a measure of satisfaction today from the U.S. District Court for the District of Columbia, as Judge Reggie B. Walton ordered the Defense Department to begin releasing documents to Leopold over the next six months — specifically, the titles of reports produced by the Office of Net Assessment (ONA), the department’s in-house think tank.
FOIA matters, of course, don’t start in courtrooms; they end there. Last summer, Leopold, known as a “FOIA terrorist,” requested an index of reports produced by ONA from 2009 through 2014. It didn’t appear to be an extravagant request, considering that Talking Points Memo in 2009 came up with an index covering the previous 20 years or so. The titles themselves are newsworthy, or perhaps just clickworthy. “Biometaphor For The Body Politic” (March 2006), “Contradictions And Continuities: The Changing Moral Education Landscape” (November 2008) and “Future Asian-Pacific Hydrocarbon Demand (1996-2015)” (December 1997) are just a few of the highlights.
The Defense Department, however, responded to Leopold’s index request that it had “no responsive records” — which is to say, no index. Leopold filed a second FOIA request seeking just the title pages and summaries of the reports. This time, the government replied that “no documents of the kind described in the request could be located and that conducting a further search would create an undue hardship.” Okay, said Leopold, then give me the blasted reports! he demanded in a third FOIA request. Too broad and onerous, came the response from the government.
So he sued for the records in October.
The lawsuit forced the government into negotiations with Leopold and Light, and that’s where the strange condition popped up. As Light told the Erik Wemple Blog last week, the government said it would choose about 50 reports “at random” and fork them over to Leopold. “And then they said, ‘We don’t want you coming back and doing another lawsuit and asking for the next 50,’” said Light.
Assistant U.S. Attorney Benton Peterson did not raise the no-more-FOIA-requests condition in Thursday morning’s hearing. Rather, he cited “infirmities” with Leopold’s request that turned it into “something we wouldn’t respond to.” Judge Walton appeared sympathetic to the government’s predicament, claiming that Leopold’s request for all these reports — some of which may run up to 400 pages — “seems to be to be unreasonable” and an “onerous task” for the Pentagon. Perhaps the judge was forgetting that these reports were funded with taxpayer dollars.
After Light mentioned that Congress, via last week’s hearing, was displeased with the work of the bureaucracy in responding to FOIA requests, Walton quipped, “Congress enacts these laws and doesn’t give the resources to comply with them.”
A good courtroom FOIA tete-a-tete yields a valuable lesson or two about how our government is organized, or isn’t. Peterson said that one of the problems with retrieving all these indices and reports for Leopold is ONA’s categorization system. These reports, he said, “aren’t kept by subject matter but by contractor affiliation.” Corporations are running the Pentagon, in other words, all the way down to the filing protocols!
However they’re filed — and there are around 1,200 of them over the five-year period of Leopold’s request — ONA is going to have to dig them up and pass along the titles on a monthly basis, per Walton’s order. Another hearing is scheduled for December to monitor the progress.
As he exited the courtroom, Peterson declined to answer questions about the case, citing his duty to refer them to the Justice Department’s PR department. Too bad, because the Erik Wemple Blog really wanted his perspective on why Leopold had to go through nearly a year of administrative haggling and litigation to get the reports’ titles, which is essentially what he asked for in his very first FOIA request.