Tales of FOIA and Secrets, Then and Now
Published December 2019
The Pentagon Papers case, in which the U.S. Supreme Court rejected the Nixon administration’s attempt to bar publication of a detailed history of American involvement in southeast Asia prior to and during the Vietnam War, is rightly celebrated as a landmark decision in favor of government openness and accountability.
But the case also shows that tenacity and persistence is also required: by the journalists who analyzed and summarized the information in the documents, by the editors who resisted government pressure and by the owners who paid the bills for the court battle over publication. And two recent freedom of information cases—one national, one here in South Carolina—show that tenacity and persistence are still required for journalists to obtain public information and hold government accountable.
The national example is The Washington Post’s recent articles based on transcripts and other information from 400 interviews of Pentagon officials conducted as part of an internal review of the Afghanistan War. These articles, and the materials they are based on, detail the story of the ongoing war in Afghanistan: at 18 years and counting, the longest armed conflict in American history. And, like the Pentagon Papers almost 50 years ago, they reveal that United States military and civilian government officials continually gave the American people overly optimistic and often downright false assessments of the situation in Afghanistan and the eventual outcome of the mission. As the Post put it, “Year after year, U.S. officials failed to tell the public the truth about the war in Afghanistan.”
In addition to reporting on the interviews, the Post explained how it got this information. Based on a tip about an interview of former U.S. Army Lt. Gen. Michael Flynn, the paper filed a request in August 2016 under the federal Freedom of Information Act for the transcript, recordings, and any other information from that one interview. The newspaper later filed another FOIA request in March 2017 seeking similar materials from the other interviews.
The Pentagon office that conducted the interviews was at first cooperative with the Post. But this changed after Donald Trump won the election and offered Flynn the position as his national security adviser. (Flynn resigned after less than a month.) After the inauguration, the Post’s FOIA request for information from the Flynn interview was denied. The Post filed an administrative appeal of that decision, then in October 2017 filed a lawsuit in federal court.
The lawsuit prompted the Pentagon to release some of the interviews. But it refused to release the identities of who had been interviewed claiming that the identities were protected by various FOIA exemptions. So the Post sued a second time in November 2018. This eventually led to the release of 428 interviews, but with information redacted from many of them and the identities of 366 subjects withheld. The Post began publishing stories based on the interviews on Dec. 9, but the lawsuit seeking full disclosure continues.
In the South Carolina case, Common Pleas Judge William McKinnon held that the Lexington 1 school district had largely not violated the state’s Freedom of Information Act by posting no or inadequate notice of meetings and withholding several documents. Interestingly, this lawsuit was brought not by the media but by a member of the board itself, Jada Garris, a former school bus driver and long-time critic of the district’s board who was elected to the board in November 2018.
But while Judge McKinnon ruled on Nov. 22 that the board’s meeting notices and procedures were either adequate under the law or constituted only minor, inconsequential violations, most of the claims regarding withheld documents were resolved by the board releasing the many of the materials before the case went to trial. But the board apparently released these documents only because Garris had sued. “[T]he district agreed to supply responsive records to several requests for information only after she sued them,” her lawyer Taylor Smith wrote to The State newspaper in an email. (Smith is also legal counsel to the Press Association.)
Garris told The State that once the lawsuit was filed, the board’s agendas, meeting practices and handling of FOIA requests were more in line with the legal requirements. So while both the board and Garris have asked for reconsideration of the issues on which the court ruled against them, the lawsuit seems to have resulted in positive changes in how the school district conducts business.
Both The Washington Post case and Garris’s lawsuit against Lexington School District 1 thus seem to have had positive results in terms of public access and accountability. But they also show that lawsuits in court can be required in order to force government entities to release information. And that those lawsuits require vigilance and resolve to bring such cases in the first place.
Eric P. Robinson is an assistant professor at the USC School of Journalism and Mass Communication and is Of Counsel to Fenno Law in Charleston / Mount Pleasant, although any opinions are his own. He has worked in media law for more than 18 years, and is admitted to legal practice in New York and New Jersey and before the U.S. Supreme Court. This column is for educational purposes only; it does not constitute legal advice.