The U.S. Marshals Service released 230 pages of documents to the Hattiesburg (Miss.) American on June 13, 2007, nearly three years after the newspaper made its original Freedom of Information Act (FOIA) request. The documents describe the results of an internal investigation into an April 2004 incident where a marshal forced two journalists to erase audio tape recordings of a speech by U.S. Supreme Court Justice Antonin Scalia.
When Scalia gave a speech at Presbyterian Christian High School in Hattiesburg, U.S. Marshal Melanie Rube ordered two reporters sitting in the front row, one from the American and the other from the Associated Press (AP), to erase tapes they were making of the speech in accordance with her understanding of Scalia’s longstanding refusal to allow public broadcast of his comments. (See “U.S. Marshal Orders Reporters to Erase Scalia Speech Tapes” in the Spring 2004 issue of the Silha Bulletin.)
Scalia later issued written apologies to the journalists and clarified his policy. According to the apology letters, he allows reporters to record speeches to ensure accuracy in their reports, but not for public broadcast on television or radio news programs.
In May 2004, the American and the AP filed suit against the U.S. Marshals Service and won. The Marshals Service admitted Rube’s conduct violated federal laws that prohibit government officials from confiscating journalist work product. The American made a FOIA request in October 2004 for documents pertaining to the agency’s internal investigation of the incident.
After the Marshals Service refused to turn over the documents, the newspaper appealed to the Department of Justice (DoJ), which ruled in May 2007 that the Marshals Service should turn over the requested documents.
The American reported June 14 that the released report found that the marshal’s conduct did not violate federal law, even though their lawyers settled the 2004 lawsuit. The report also included an interview with Rube in which she explained her belief that the then-headmaster of the school where Scalia was speaking had asked reporters not to record the speech. Rube learned later that the headmaster had asked other news outlets not to record the speech, but had not made a general announcement that would have been heard by the reporters whose tapes were erased.
A June 16 editorial in the American complained that the “almost-three-year-tug-o-war” with the Marshals Service was “unconscionable but not unusual.” The Knight Open Government Survey, released July 2 by the National Security Archive, a non-governmental research institute at George Washington University, showed that the current law allows some FOIA requests to drag on for decades. Researchers found six open FOIA requests dating back to the 1980s, including one uncompleted request that was 20 years old. The survey reported five government agencies – the State Department, CIA, Air Force, FBI, and DoJ – had outstanding requests dating back at least 15 years. The State Department alone reported ten 15-year-old requests.
The American called for reform and urged passage of the Openness Promotes Effectiveness in our National (OPEN) Government Act of 2007. The statute would strengthen the 40-year-old FOIA by instituting strict response time requirements to FOIA requests and adding consequences for failing to respond. The statute would also create a tracking system to monitor requests and an ombudsman position to help people who make FOIA requests understand the law. Finally, the statute would update FOIA’s definition of a journalist to include most bloggers, making them eligible for document collection fee waivers.
The OPEN Government Act passed in the House by a wide margin in March 2007, but stalled in the Senate because Sen. Jon Kyl (R-Ariz.) placed a secret hold on the bill in May 2007. A secret hold is a parliamentary procedure that allows senators to anonymously block legislation from a floor vote using a provision of the Senate Rules that requires “unanimous consent” for a bill to be considered before the full Senate. Any senator may quietly inform party leaders of intent to withhold consent, anonymously keeping the bill in committee. Kyl’s identity was discovered after the Society of Professional Journalists surveyed senators to find out why the bill was stalled.
David Carr reported in his July 23, 2007 “Media Equation” column for The New York Times that Kyl’s press secretary said that the hold was in place to allow for further negotiations between the DoJ and senate staffers about provisions in the bill the DoJ opposes. The DoJ sent a 13-page letter to Sen. Patrick Leahy (D-Vt.), one of the bill’s sponsors, on March 26, 2007, outlining concerns with the statute. Kyl’s press secretary said at the time that some concerns still needed to be addressed.
The Senate voted unanimously in favor of the bill on Aug. 3, 2007, after a two-month delay started by Kyl’s hold. The bill won the support of more than two-thirds of the House and Senate making it “veto-proof.” The Senate sponsors told reporters that President George W. Bush was expected to sign it after the conference committee resolves some small differences between the House and Senate versions.
“For more than four decades, FOIA has translated the great American values of openness and accountability into practice by guaranteeing access to government information. The OPEN Government Act will help ensure that these important values remain a cornerstone of our American democracy,” Leahy said in a statement after the Senate vote.
The Hattiesburg American reported June 14 that strengthening FOIA with reforms like the OPEN Government Act would make FOIA a more useful tool for reporters. “Many [journalists] by and large don’t even use FOIA because it’s a broken system,” Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, said in the story. “I’m hopeful that if we get meaningful reforms on the law, more journalists will actually use it.”
Charles Davis, executive director of the National Freedom of Information Coalition, an organization based at the University of Missouri that supports use of the Freedom of Information Act, told the American that until the new statute is enacted, delays like the newspaper faced will continue to be common. “What happened in Hattiesburg happens all over the county, all the time. Agencies feel completely confident in stonewalling because there’s no real punishment,” he said.
– Michael Schoepf, Silha Research Assistant