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OMBUDSMAN

Stars and Stripes can’t invoke FOIA, but it can get around that limitation

By TOBIAS NAEGELE | Stars and Stripes ombudsman | Published: June 23, 2016

A newspaper should inform, entertain and, most important, watch out for its readers. Investigative reporting is at the heart of every newspaper’s First Amendment responsibility and mission. It’s how newspapers act as watchdogs for the communities they serve, questioning and probing policymakers, agencies and institutions.

One of the core tools journalists use to do that is the Freedom of Information Act, a federal statute that obligates the government to open up its files to journalists and the public at large. The act is supposed to ensure government transparency and protect from disclosure only that information that poses a risk to national security or the privacy of individuals.

Known by its acronym, FOIA, the act is one of the most critical tools for any investigative journalist, providing legal recourse should access be denied and ensuring that, when a request is upheld by the courts, the government, and not the news media, must pay its legal fees.

Excluded

Yet one newspaper is excluded from FOIA under the law: Stars and Stripes. Indeed, it’s the only U.S.-focused news organization incapable of leveraging this powerful federal law.

Radio Free Europe/Radio Liberty, Radio Free Asia, Radio Sawa, Alhurra and Voice of America are likewise barred from using FOIA. But their audience profiles are of foreign nationals living in foreign lands. They’re fundamentally different from Stars and Stripes, which exists to keep U.S. troops well informed about their nation and their military.

Under FOIA, none of these organizations have legal standing. Although the law itself refers only to “persons,” it defines person as “an individual, partnership, corporation, association, or public or private organization other than a [federal] agency.” That definition comes from the Administrative Procedure Act of 1946.

In the eyes of the law, Stars and Stripes is not a news organization but an ordinary government agency, incapable of invoking legal rights in seeking information from other federal organizations. Stripes can ask for information but, unlike others, it has no recourse if refused.

Investigative reporters routinely use FOIA to access data, emails, internal reports, payment records and other information needed to build an investigative report. Whether acting on a tip or just intuition, reporters use FOIA to track down official documents and statistics, the vital details that help tell otherwise hidden stories. Combined with interviews and other research, FOIA can help tell stories that would otherwise be buried forever.

In more than two decades of military journalism, I’ve been involved with many FOIA investigations, producing enterprise stories that helped expose off-label use of antipsychotic prescription drugs in combat zones; scandals involving senior officers and appointed officials; the lack of balance and fairness in awarding military medals; body armor that was fielded even after failing screening tests; and many more.

FOIA frustrations

FOIA can be used to find evidence of cover-ups and to acquire data that let you do your own research. It takes patience, because responses can take months and even years. And sometimes the results of a long wait are useless.

But you can’t win if you don’t play, and failure to use FOIA is a sign that a news organization is not living up to its public service responsibilities.

Stripes reporters I spoke with expressed frustration with their FOIA limitations, but also noted workarounds.

A few use what they call the “faux FOIA,” a form letter that’s similar to the standard FOIA form letter many reporters use that cites their rights under the FOIA law. The faux FOIA doesn’t mention FOIA at all, but rather cites DOD Directives 5122.11 (which establishes Stripes itself) and 5122.5 (which outlines the DOD’s principles of information) in seeking a cooperative response from the receiving agency. Officially, that’s what Stripes management expects reporters to use when lodging a request for a body of information.

Sometimes that works, sometimes not, they said. One former Stripes reporter told me that when it didn’t, following up “with the threat of an IG complaint against the commander on whose staff the PAO worked, for failing to adhere to service and DOD policy on disclosure,” sometimes jarred the information loose. Most of the time, the commanders were general officers, so the inspector general complaint would have to go straight to the Defense Department IG, rather than a local official. “That tactic almost always bore fruit,” the reporter said.

Several current reporters told me that, despite their lack of legal standing, they still file formal FOIA requests, sometimes with positive results. Others said they had been specifically told not to do so. I found decades-old memos from Stripes’ former parent agencies admonishing the paper for letting reporters file FOIA requests. That’s an overreaction. While the law does not grant Stripes (or any other agency) the right to obtain information under FOIA, it does not prohibit anyone from simply asking.

So it’s disappointing to see that when one reporter informed a PAO that Stripes staff can’t use FOIA, a Marine PAO who had previously directed the reporter to file an official FOIA request for the information he sought responded that there was nothing more he could do. The fact is, he’s supposed to try.

There are other potential workarounds. FOIA experts I consulted suggested they could file requests as individuals or use surrogates. One could construct a lawyerly defense of such approaches, but in the end it’s deceptive.

Making deals

There’s a better way to do this, and in at least one case, a Stripes reporter has made use of the practice: Strike a deal with another news organization. Stripes hits on the story, then shares its insight with a second news operation.  That group, in turn, files the FOIA request, and the two agree to share the resulting information.

This is a workable solution that Stripes can — and should — use more frequently.

As a niche publisher covering national news that’s often of international interest, Stars and Stripes can have its pick of partners much of the time — partners that aren’t competitive in Stripes’ niche market. Whether radio, TV or even print media, top-shelf partners offer additional reporting resources and large audience exposure, which can benefit Stars and Stripes with publicity and positive vibes through affiliation. Stripes brings subject matter credibility and insight. That’s the basis of a good partnership.

Editor Terry Leonard said Stars and Stripes has made limited use of such relationships in the past. FOIA “is a useful tool that we wish we could make more effective use of,” he said. But he added, “We find that given the constraints and the time lags involved in the process that generally we are more efficient and productive when our reporters use more traditional methods to gather the news.”

Yeah, FOIA can be slow. But I disagree that reporters are any more efficient or productive using “more traditional methods” of reporting. It’s not mutually exclusive.

Effective beat reporters are excellent multi-taskers, effective at juggling short-term event coverage with long-term projects and planning. While filing FOIA requests may require patience, it doesn’t take that much time or preclude any other kind of news gathering. Good reporters do it routinely. And that includes some Stripes reporters.

Stars and Stripes is the beneficiary of FOIA by other means. In the past few weeks it published reports based on FOIA reporting, for example, by Craig Whitlock, of The Washington Post, whose report on the Navy’s 7th Fleet logistics scandal published in late May exposed the details of a sordid procurement scandal involving payoffs, prostitutes and a 350-pound contractor who went by the name “Fat Leonard.” The scandal has caught up a rear admiral and other senior officers.

But publishing the investigative work of others is not enough to keep Stars and Stripes a vibrant news product for military members.

Essential capability

Without its own signature investigative work, Stars and Stripes has little reason to maintain a unique reporting capability.

Stars and Stripes’ value proposition to its readers is its knowledge of the military audience, its nuances and needs, and that expertise should manifest itself in unique coverage driven by the curiosity and insight of expert reporters and editors. That must include investigative work.

Stripes managers should conduct a training session on FOIA and its workarounds for the staff — while policies may be clear in the minds of some, others are unsure. Newer staffers would benefit from the experience of others.

First, however, Stripes editors (and lawyers, of course) should establish a formal policy for partnering with other news organizations, laying out for staff when that’s possible, who needs to be involved, and what the language and construction of such an agreement should be. When I asked reporters and editors about this possibility, answers to my questions were varied. No one I spoke with could articulate clearly what the rules are or should be. That’s a weakness.

For Stars and Stripes to live up to its stated objective of operating “in accordance with journalistic standards governing U.S. daily commercial newspapers of the highest quality,” the news operation must be more aggressive and assertive on topics of essential concern to military members, stories that touch their lives, careers, paychecks and families.

The best news organizations don’t just break news by reporting official facts first. They make news through enterprising and investigative reporting. FOIA isn’t the only answer. But its creative use is an essential ingredient.

Disagree with my take? Have a better idea? I want to hear from you. Send me an email at naegele.tobias@stripes.com or post a comment with this column online.
 

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