Using Public Records Laws to Expose Government Misdeeds: For One Journalist, It Took 20 Years, Lots of Research, and Several Court Decisions to Uncover the FBI's Abuses of Power and Secrecy on a Campus during the Cold War
Rosenfeld, Seth, Nieman Reports
I was a journalism student at the University of California at Berkeley when I sent off a Freedom of Information Act (FOIA) request for Federal Bureau of Investigation (FBI) records concerning the university. I knew that during the 1950's and 1960's Berkeley had been involved in some of the nation's biggest protests over academic freedom, free speech, and the Vietnam War. I also knew that congressional hearings in the 1970's had revealed illegal FBI spying on thousands of Americans engaged in lawful dissent elsewhere. I was curious about what the FBI had been up to behind the scenes at Berkeley.
I had no idea I was embarking on a two-decade fight to get the FBI files or that I would bring three lawsuits under the FOIA that would reach the U.S. Supreme Court. Neither did I know that ultimately the FBI--which had denied snooping on campus--would release more than 200,000 pages showing that J. Edgar Hoover's FBI conspired with the head of the Central Intelligence Agency (CIA) to harass students and faculty, waged a covert campaign to get University of California (U.C.) President Clark Kerr fired, contributed to the 1966 defeat of Democratic Governor Edmund Brown, and provided secret political support to his successor, Ronald Reagan.
Nor did I envision that 20 years later, on June 9, 2002, the San Francisco Chronicle would publish my article disclosing these abuses of power and secrecy during the cold war, just as the FBI was once again being given vastly expanded power and secrecy in the war on terror, raising anew concerns about civil liberties and government accountability.
Federal bureaucracies have a long and well-documented history of needlessly stamping public records "confidential." No administration has embraced the FOIA; President Johnson threatened to veto the new law in 1966, and President Ford vetoed the 1974 amendments that Congress nonetheless passed to strengthen it. But journalists in the post-September 11th world face what a Reporters Committee for Freedom of the Press study, "Homefront Confidential," called "unprecedented" secrecy at the local, state and federal level.
By describing my struggle to obtain the FBI records about Berkeley, I hope to offer useful tips on how journalists can break down (and otherwise get around) government stonewalling on public records acts' requests. Although my request was made under the FOIA, these suggestions also apply to local and state public records acts, which are often modeled on the federal law. And though my request was unusually large and complex, these tactics might be adapted to smaller and shorter-term requests.
Investigating the FBI Files
My pursuit of the FBI files began at the Berkeley post office in 1981, when I mailed off a request seeking "any and all" records concerning U.C. I figured I'd get the files fairly soon. After all, the FOIA is the main federal law requiring timely public access to executive branch records. Agencies must grant or deny requests within 20 working days (or 30 if the request is voluminous or otherwise complicated). All executive branch records must be released unless the government specifically shows that the information falls under one or more of nine exemptions. Even if some parts of a record are exempt from release, all the other reasonably segregable parts must be released.
Months passed with no reply from the FBI. I filed an administrative appeal of the delay with the Justice Department, a prerequisite to filing a lawsuit. Finally the bureau sent a letter saying that processing the papers would cost about $35,000; it would gladly start as soon as I plunked down a 25 percent deposit. I asked the FBI to waive fees, which agencies must do if releasing the records would primarily benefit the general public. But in the bureau's editorial judgment, there was no public interest. I was stymied.
Then in 1984, a pro bono lawyer took my case, and I sued for a fee waiver. …