Jason Leopold is an investigative journalist, recently hired by Vice News. Before landing his recent gig, Leopold freelanced and worked for many other outlets, including Truthout, Al-Jazeera America, Salon, the Los Angeles Times and The Huffington Post. He is best known for work primarily derived from his aggressive pursuit of Freedom of Information Act requests to federal agencies. Many major stories have broken as a direct result of his FOIA requests, including The Abu Zubaydah Diaries, the force-feeding of Guantánamo prisoners on hunger strikers, Department of Homeland Security manuals for monitoring terror threats on Twitter and FBI spying on Nelson Mandela, among many others. In June, Medium published a longform narrative profile of Leopold that details his “dark past” and how he has overcome career-destroying obstacles and ethics lapses by learning to pry information from the government like no one else.
You’re known as a “FOIA terrorist.” Is that self-proclaimed, and what does being a FOIA terrorist mean to you?
I was branded a “FOIA terrorist” by a certain government agency because I had filed many records requests and the analysts felt that I was “terrorizing” them. I found out about this during a conversation I had with one government FOIA analyst in which I was following up on the status of a request, and I liked that these government employees deemed me to be a “terrorist” for simply doing my job and taking advantage of the tools offered to everyone, so I decided to claim that moniker as my own. Being a FOIA terrorist means aggressively using the law to pry loose government documents and to force agencies to live up to its transparency obligations. I take my job as FOIA terrorist very seriously.
How and why did you get so involved in freedom of information issues? Was there a journalist or FOIA fanatic who inspired you more than others?
I became obsessed with FOIA immediately after I reported a story about ethics training Air Force nuclear missile officers went through. This story was based on explosive documents that someone else had obtained via FOIA and had shared with me. It was an amazing story in which the Air Force cited the Bible and a former Nazi to explain the ethics of launching nuclear weapons, and how Jesus Christ would have supported the launch of nuclear weapons. I published the PowerPoint slides that were used during the ethics training, and it made a huge impact.
A couple of days after my report was published, the Air Force suspended its ethics training, which had been in place for two decades. This was the first time I experienced the impact of documents as primary source material, and I was eager to duplicate this type of reporting on other stories I had been working on. So I asked the person who had provided me with the documents to give me a crash course in filing good FOIA requests.
He is what agencies would refer to as a “frequent FOIA requester.” I then just flooded agencies with requests for all sorts of records, many of which were highly classified, and I have been very successful in prying loose those documents. I should also note that FOIA is important to me because, in this day and age, sources are less willing to divulge government secrets due to the Obama administration’s relentless pursuit of leakers. I had to figure out a way to continue reporting on national security, counter-terrorism, Guantanamo, human rights and civil liberties issues, subject matters that are shrouded behind a veil of secrecy. The Freedom of Information Act has provided me with such an opportunity.
Organization must be a nightmare for someone with as many government documents as you. What’s your process for not getting lost in a whirlwind of papers?
Whenever I receive a batch of documents, I immediately report the story the records are based upon so I am fortunate that I do not get lost. However, with more than 1,000 FOIA requests filed and the vast majority still pending, it is challenging trying to recall each and every request. But I do check on my oldest requests every week, and I will email the agencies for estimated date of completion, which under the law they are required to provide me.
In fact, I had sued the FBI and Department of Defense for violating that provision of FOIA, and I won, and they promised to change their policies. This is something that benefits all FOIA requesters and they should know that whenever you file a FOIA (request) you can compel these agencies to provide you with an estimated date of completion and they must provide one.
You FOIA’ed a lot as a freelance journalist. How do you afford paying for requests? Is it possible for an up-and-comer to do it on a shoestring budget?
As a journalist, I am fortunate in that I am entitled to a fee waiver because I am using the documents I request to inform the public, not for any commercial interest. And when I am charged for records, the costs are very minimal. When I am denied a fee waiver, which happens from time to time, I appeal and the decision is almost always reversed.
Up-and-comers can certainly do this if they can demonstrate that the documents they are seeking will be used by them to form the basis of a news report. I would also advise freelancers who use FOIA to factor costs into their fee (for working with a news outlet).
Now, where this does get expensive is when it moves to the lawsuit stage. I currently have 13 lawsuits against federal and state agencies, and at $400 a pop for each filing fee, it most certainly adds up. As a freelancer, I have factored in these costs into my fee when I pitch a story based on documents I have obtained from my lawsuit; and because the documents themselves have enormous news value, the editors have been willing to cover it because they want to break the news. Additionally, I write about FOIA at Beacon Reader, and the money I have raised through subscriptions has helped pay for these lawsuits.
Filing a lawsuit against a federal agency seems like a daunting endeavor. What would you say to encourage journalists who have hit a wall with their FOIA request?
I would encourage reporters to seek out local reporting organizations that can offer assistance on moving to the lawsuit stage as well as legal labs at universities that have also filed lawsuits on behalf of reporters. Before that, however, I would encourage reporters to contact the FOIA ombudsman at the Office of Government Information Services at the federal level, which mitigates FOIA disputes. Not many reporters, or the public for that matter, are aware this option is available to them.
How necessary is FOIA for an investigative journalist?
I cannot stress enough how crucial FOIA is to investigative journalism, especially in this day and age when the public craves primary source material in the form of documents. What surprises me is that few journalists use it, and I know that because I pour through the FOIA logs agencies produce, and there is a huge disparity between requests from the general public and non-governmental organizations and journalists.
Unless investigative journalists have a steady stream of leakers who will provide documents, regularly filing FOIA requests should be mandatory. Often, however, I will hear from some journalists that the process takes too long. That is true, but the law does allow for expedited processing if a journalist can demonstrate there is compelling public interest in the subject matter. It is crucial that we try to provide our readers with as much hard evidence as we can to back up and support our reporting on sensitive matters.
Best places for a FOIA warrior to freelance? Also, how’s the new gig at Vice?
I have freelanced at The Guardian, Al- Jazeera America and Vice News before I was hired full-time as an investigative reporter. These news organizations understand and respect the value of FOIA. I would also recommend ProPublica.
I am thrilled to be working at Vice News. This is a news organization on the cutting edge of journalism, producing hard-hitting print and documentary features, and I’m honored that I now have a platform for my long-form journalism on subject matters that I am incredibly passionate about.
Thoughts about the new FOIA Improvement Act?
I was surprised that the new FOIA legislation includes a significant change to the dreaded (b) (5) exemption, hands down the most abused and misapplied of all nine FOIA exemptions that has been used to justify the withholding of all sorts of records. If this bill passes with the changes to (b) (5) intact it will be historic and will benefit historians and all FOIA requesters because, for the first time, we will be able to access documents that under the deliberative process have remained permanently secret.
What’s your suggestion on how we can improve the FOIA process at the federal and state levels? What’s your suggestion on how we can improve the FOIA process at the federal and state levels?
On the federal level, it’s simple: ensure that each agency adheres to Attorney General Eric Holder’s March 2009 guidelines. We must demand that the Justice Department’s Office of Information Policy — the FOIA cop, if you will, who is supposed to enforce those FOIA guidelines — takes steps to reduce the backlog. If that means hiring more FOIA analysts, then Congress should make those funds available.
On the state level, it really depends on the state, and my experience has been positive. I am of the opinion that requesters must empower themselves to understand the freedom of information laws so when an agency, be it on the state or federal level, tries to circumvent the process, requesters can successfully challenge them. I go to battle every day with these agencies, and I feel confident that because I have a good understanding of the way the law works, I can successfully challenge agency analysts who complain that my request is either “too broad” or “too burdensome” and get my (request) processed.
What’s your FOIA advice for other reporters?
Make it a habit to read the FOIA logs, and pay attention to what other requesters are seeking and what documents government agencies are releasing. There are many instances where documents that you may think are classified have been released but have never been reported on, and you would be entitled to receive the records if you ask. Moreover, anytime you read a news report that says “the document remains classified,” file a request for it.
If you read a news story in which a government agency is promoting a new technology or has implemented a new policy, file a FOIA request for it. We are surrounded by secrecy, and I believe the secrecy has less to do with national security and more to with covering up embarrassments of the past and present. Journalists can help change that culture by using FOIA to pressure government agencies to be transparent.
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