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FOI UPDATE 2000: Press use of FOI requests

By Rebecca Daugherty

Filing a freedom-of-information request is not an altogether rewarding experience, and few of the regular reporters who do so enjoy unqualified success in getting records from federal, state or local governments. But sometimes governments come through, and sometimes the records they provide let the public know what they are doing. Sometimes a reporter with patience and a FOI request will find the records that tell the story that simply begs to be written.

Here are some examples:

'The Hidden Dangers in Airline Cargo'
Passengers on commercial airline flights travel with radioactive materials and other dangerous chemicals — in one case even a headless, hepatitis-B infected corpse leaking blood — that are not permitted aboard airlines because of the health and safety dangers they pose, Elizabeth Marchak of The (Cleveland) Plain Dealer reported last year.

And yet the Federal Aviation Administration issued fewer fines and enforced the laws unevenly, Marchak reported. She reviewed the agency's records for two years after it had promised, in the wake of the Everglades Valujet crash caused by a cargo fire, to be more vigilant. Marchak relied on leaked as well as FOI-released documents in the two-day series.

Shortly before the Valujet crash in 1996, she wrote a series on the airlines and the government's failure to oversee airline safety. That story was based in part on 60 FOI Act requests.

'Falling from the Sky'
While it boasted that its aviation accident rate had declined, the U.S. military omitted hundreds of accidents from the accident rates it reported to the public simply by re-categorizing them. The new rules about what accidents to report only removed the unreported accidents from public reports, not from military databases. Russell Carollo, whose six-part series ran in October in the Dayton (Ohio) Daily News, requested the databases and gave the public the real report.

Carollo is a veteran FOIA user whose series on military medicine, written with Jeff Nesmith of Cox Newspapers, won the 1998 Pulitzer Prize for national reporting for stories showing that the military's health-care system draws problem doctors who do not have to contend with too many checks on their competence.

The two reporters also collaborated on stories published in 1997 showing that the military treats serious sex crimes as misdemeanors, sometimes re-categorizing "rape" to "poor judgment." They had to go to federal court to win the records behind those stories.

'New Code for Sex Crimes'
A team of Philadelphia Inquirer reporters were "stunned," according to Craig R. McCoy, one among them, to learn from records provided by city police as a result of FOI requests that not only the police, but the FBI, had questioned a Special Victims Unit for downgrading of rapes to other offenses.

The federal agency had criticized the squad's high rate of labeling the complaints as "unfounded," McCoy wrote in a Columbia Journalism Review article. But records the reporters obtained showed that after the FBI's criticism, the unit began coding new rape complaints as "investigation of person," a non-criminal category.

As a result of the stories about two rape victims the reporters found so coded, police revisited the evidence and determined from DNA that these two women had been raped by a serial rapist-killer who is still at large.

'Dying for a Cure'
When medical researchers break the rules in clinical trials, they may jeopardize patients. Sheila Kaplan and Shannon Brownlee of U.S. News and World Report filed FOI requests for audits by the Food and Drug Administration, the National Cancer Institute and the federal Office for Protection from Research Risk. The records and interviews with the researchers, subjects and their families showed rules meant to protect patients are routinely ignored, jeopardizing patients.

Federal auditors gave chilling details in their reports. The article detailed exorbitant payment by drug companies to doctors who are able to bring in patients to test new drugs and the dependence of hospitals and research centers on private monies.

'Invisible Deaths'
Sometimes the news is so bad that it is really good that it got reported — just the telling of it is going to make someone do something to make things better. Washington Post reporter Katherine Boo's series on more than a hundred deaths in the city's homes for the mentally retarded launched a government investigation and ongoing changes in policies and the people who carry them out.

Boo filed several FOI requests with the city government. Revelations that records had been destroyed were sometimes as damning as what released records revealed.

Hoover: Smiles for Brennan, but not Brotman
Before the wake commences, veteran Supreme Court reporter Tony Mauro will have filed a Freedom of Information Act request with the FBI for the records it had accumulated on a newly deceased Supreme Court justice. The files will not arrive immediately but, when they do, Mauro is inevitably able to provide insight into the justices' lives.

In his story last year on Justice William Brennan Jr., Mauro noted that the ultimate great liberal force on the court was, at his appointment, handily approved by J. Edgar Hoover. The file also detailed death threats directed at the justice, and Mauro noted that Brennan's son never knew about them.

A more sinister Hoover story is told by Chicago Tribune staff writer Barbara Brotman, who shared details of the FBI's McCarthy-era investigation of Otto Brotman, her father, as a suspected subversive. Before his death, her father obtained his own FBI file, hoping to answer decades-old questions about why he had been investigated at all. Hoover had demanded the inquiry into Otto Brotman's activities based on allegations by a "friend." A Loyalty Board cleared him of disloyalty charges but the Civil Service Commission fired him because of the suspicions.

Of the file, which includes a description of her father's "bridge-playing proclivities," Brotman observed, "It shows just how far national hysteria took us, and just how fragile our personal freedoms proved, when a critical mass of people decided that the ends justified the means."

FOI requests as a journalistic tool
There are plenty of records journalists should be getting that they aren't. For every detail Boo found in Washington, D.C., thousands of others are withheld in Washington and in jurisdictions all over the country to protect the personal privacy of victims, perpetrators, and anyone else who might be identified by name.

What these stories show is that open government laws are valuable. Even the federal government, with its mind-boggling use of exemptions, and even the governments in Pennsylvania and the District of Columbia, two jurisdictions notorious for denying records, will sometimes provide records in response to Freedom of Information requests.

Rebecca Daugherty is director of the FOI Service Center at the Reporters Committee for Freedom of the Press.

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