Inside One of the Biggest Freedom of Information Act Fights in History

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As newsroom budgets shrink around the country, one of the casualties has been challenges to Freedom of Information Act violations or other open-records laws through litigation. One recent study shows major news organizations are challenging government secrecy orders in court much less frequently in the last few years. Despite these challenges, some veteran journalists are demonstrating that it’s possible to use public records as a tool for holding government accountable.

Last August, California Bay Area journalist Seth Rosenfeld published Subversives: The FBI’s War on Student Radicals and Reagan’s Rise to Power, a detailed history of the FBI’s infiltration of the University of Berkeley, which led to the illegal surveillance of professors and students (Read Matt Taibbi’s rave review of Subversives in the New York Times here).

Rosenfeld first became interested in the subject in 1981, when he was a studying journalism at UC Berkeley writing for student newspaper The Daily Cal. His editor mentioned that the paper had received FBI records in response to a Freedom of Information Act request, so he piled the boxes of files onto a hand truck, wheeled them back to his apartment, and dove in.

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“I burrowed into those records, and even before I had finished writing my first story on this, I could see that there was still more to find out,” Rosenfeld said during a talk at the Commonwealth Club in downtown San Francisco earlier this year.

What Rosenfeld didn’t know was that he was about to embark upon a “27-year legal odyssey.” The battle ultimately entailed five lawsuits under the Freedom of Information Act, an order issued by five federal judges calling on the FBI to release more than 300,000 records, and two more judicial order requiring the FBI to pay more than $1 million in attorneys’ fees. In October, the second award, $460,000, went to the First Amendment Project, a free speech advocacy organization that represented Rosenfeld pro bono for years.

The FBI’s involvement at the University of California Berkeley campus began in the post World War II era with a tip, gleaned from a wiretap, revealing Soviet attempts to steal nuclear secrets from UC Berkeley laboratories. That investigation ultimately resulted in several arrests – but from there, the intelligence agency’s involvement took a disturbing, intensely political turn, ultimately trampling students’ and faculty’s First Amendment rights.

“The FBI diverged from an important national security mission…to focus instead on students and teachers engaged in lawful dissent,” Rosenfeld explained. The documents revealed a long-term and ultimately successful campaign by then-FBI director J. Edgar Hoover, sometimes in concert with the help of then-Gov. Ronald Reagan, to unseat UC Berkeley President Clark Kerr. Rosenfeld wrote about Reagan using the FBI as his “personal spying machine” in the New York Times when his book was published last year.

Rosenfeld’s “legal odyssey” not only illustrates how difficult it can be even for a member of the press to gain access to government records, but also reminds us why it’s crucial to preserve the public’s right to know. Last month, the Northern California Chapter of the Society of Professional Journalists honored Rosenfeld with a Career Achievement award.

Even when citizens and journalists do succeed in wresting public records from obstinate public agencies, the process can be cumbersome. As Rosenfeld’s case shows, it’s sometimes only after years of court battles that the documents are finally shaken loose, and newsrooms with deeply slashed budgets are increasingly hesitant to engage in such a time-consuming process. Recognizing these challenges inspired Michael Morisy, a veteran journalist, to started Muck Rock to facilitate the process of submitting public-records requests. Requesters can type in their queries, and for a nominal fee, Muck Rock will take care of the rest and post the responsive documents online for other researchers. (Ed. Note: Muck Rock was one of the first four beneficiaries of Freedom of the Press Foundation.)

“As newspaper jobs were being cut, there was less governmental accountability reporting,” Morisy told me when I interviewed him for this article in the San Francisco Bay Guardian. “The one thing I like to tell people is that you have this right. But it’s like a muscle – if you don’t use it, it gets weaker. And I do think a lot of the push back on public records laws … is because people aren’t fighting as much as they used to.”

Even as his start-up tries to rekindle interest in public records, Sunshine is coming under attack across the country. “Cost is usually the big bogeyman that they try and trot out,” Morisy explained – but he sees transparency as the best safeguard against political corruption. “So it costs $200 to respond to a public records request,” he said. “That’s so much cheaper than having somebody embezzle $200,000.”

Rebecca Bowe has been writing for news publications since 2004, and currently serves as Investigative Projects Editor at the San Francisco Bay Guardian. Find her on Twitter @byRebeccaBowe.

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