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How We Used Public Records Laws To Tell You Stories In 2018

Our year prying loose government documents, featuring no fewer than 10 different lawsuits.

Posted on December 27, 2018, at 7:47 a.m. ET

Left: The gurney in Huntsville, Texas, where death row inmates are strapped down for lethal injection. Right: An exhibit at the Texas Prison Museum shows the three-chemical mixture used from 1982 until 2012, when it was replaced by a single drug.
Pat Sullivan / AP, Michael Graczyk / AP

Left: The gurney in Huntsville, Texas, where death row inmates are strapped down for lethal injection. Right: An exhibit at the Texas Prison Museum shows the three-chemical mixture used from 1982 until 2012, when it was replaced by a single drug.

Texas was in a bind. The manufacturer of pentobarbital, the drug Texas uses to execute death row inmates, had prohibited its distributors from selling to states that carried out the death penalty. So the state was forced to turn to more creative means to secure execution drugs. First, Texas tried contracting with a drug supplier to import execution drugs from India. But, at the border, the Federal Drug Administration blocked the drugs from entering the country.

Texas then turned to compounding pharmacies, which create drugs by combining their raw ingredients (rather than manufacturing the drugs). It transferred small amounts of the raw ingredient of pentobarbital to them to create batches of the execution drug. Although the state refused to disclose where it was getting its drugs, last month BuzzFeed News reporter Chris McDaniel identified one of the suppliers and revealed for the first time the supplier’s questionable safety record.

McDaniel was able to get this story in part because of federal and state public records laws, which guarantee a right to inspect certain government documents. In the case of the Indian supplier, McDaniel obtained FDA documents and internal emails relating to Texas’s attempts at importing the drugs. In the case of the compounding pharmacy, he got his hands on safety records showing that the pharmacy had been cited repeatedly for safety violations.

McDaniel’s revelations about how Texas was cutting corners to get death penalty drugs is just one example of how BuzzFeed News used public records requests — backed by a legal team ready to spring into action to defend the law — to compel the government to reveal information that led to dozens of vital stories this year.

BuzzFeed News reporters told stories about instructions given to government attorneys prosecuting immigrants; about million-dollar settlement payments to a Trump-connected law firm; about school districts’ responses to racial and sexual violence; about how few college students were expelled after being reported for domestic and dating violence; about scientific misconduct and sexual harassment in universities around the United States; and about the overlap of President Trump’s government business and his private businesses.

We also reported on government waste, as when the former Environmental Protection Agency administrator Scott Pruitt spent millions in taxpayer dollars for extra security because of bogus threats. We reported on attempts to avoid public scrutiny, as when, during his time as secretary of homeland security, John Kelly told an official at DHS that his staff was “nervous about e-mails” the official sent and reminded him that public records laws are “real.” We reported on cronyism, as when one individual traded on her connections to high-profile conservatives to get a high-ranking job at the Department of Education.

We also told stories about the radical expansion of intrusive technologies like the Stingray, a cell phone tracking device used by law enforcement, and how some law enforcement agencies teamed up with private companies like Amazon to start pilot surveillance programs using hot-button technologies like facial recognition software.

Uncredited / AP

BuzzFeed News also drew back the veil on the thoughts of high-ranking government officials. Investigative reporter Jason Leopold was the first to report that John Kelly told an aide after a tense phone call with Sen. Elizabeth Warren that she was an “impolite arrogant woman.” (Within hours, Warren repurposed the report for her campaign for reelection.) Leopold, along with BuzzFeed News Legal Editor Chris Geidner, also reported how then–Supreme Court nominee Brett Kavanaugh spent his time in the Bush administration working on controversial topics like a president’s ability to resist a subpoena and manage presidential records.

We had some fun with FOIA too. In response to President Trump’s statement that he had pictures of Robert Mueller and James Comey “hugging and kissing each other,” we reported that the FBI could not find that any such pictures existed. We also reported on the Secret Service Director’s sarcastic email to John Kelly after Kelly was appointed Chief of Staff to President Trump, “Congratulations, I think.”

#FOIA UPDATE: The FBI has not been able to locate any photographs of James Comey and Robert Mueller hugging and kissing. (Trump said he had 100) 😃😃

But it wasn't always easy telling these stories — especially in a year where the United States censored and withheld more government records than ever before.

The Freedom of Information Act, begrudgingly signed into law in 1966 by President Lyndon Johnson, was intended to make sure the American people could know what their government was up to. On paper, the law is clear and fast: The government has 20 days to decide whether to disclose the records. In practice, government agencies have devised so many ways to thwart it — from obscure loopholes to plain old delays — that it can be hard to get any results without a concerted fight.

“For too long, government agencies have violated their obligations under the Freedom of Information Act to the detriment of the public they are supposed to be serving,” said Matt Topic, a partner at the Chicago law firm Loevy & Loevy that often represents BuzzFeed News in public records cases. So in 2018, BuzzFeed News launched a multifront campaign to make FOIA and their state law counterparts work for the public again.

Our reporters made hundreds of requests for records from large federal agencies like the FBI, the Department of Health and Human Services, and Immigration and Customs Enforcement, but also from state and local agencies like the Orlando Police Department, the New Jersey Division of Gaming Enforcement, and the Maryland State Police. Taken together, these agencies and others wield tremendous power over how our streets are policed, how the poorest among us are taken care of, and whether and how laws and regulations are enforced.

When government agencies refused to honor our public records requests, BuzzFeed News lawyers went to court to force them to comply. In all, we filed 10 lawsuits in federal courts in New York and the District of Columbia this year.

That is an extraordinary number for any news organization. (The New York Times recently said it filed nine.)

When the Bureau of Prisons claimed that it could not disclose any documents in response to a request by Chris McDaniel for records relating to efforts by the agency to obtain lethal injection chemicals, BuzzFeed News sued. When Immigration and Customs Enforcement failed to hand over records relating to solitary confinement of detainees, BuzzFeed News sued. When the Department of Education began withholding information relating to sexual discrimination, BuzzFeed News sued then too.

We sued when the Department of State failed to disclose embassy records relating to senior White House adviser Jared Kushner, and we sued when the Department of Justice failed to disclose records relating to the secretive Religious Liberty Task Force. Most recently we sued the FBI for records relating to its investigation of now-Justice Kavanaugh.

In one week alone, BuzzFeed News filed five different lawsuits against government agencies wrongfully withholding public records. Those lawsuits, among the others, remain pending, but have so far resulted in the disclosure of thousands of pages of records. Lawsuits filed by BuzzFeed News in 2018 bring the number of its active public records cases to 18.

Working on #FOIA with @MatthewSchafer is pretty fun. Thanks @BuzzFeedNews for supporting our (endless) fight for transparency!

The Supreme Court once called FOIA a “structural necessity in a real democracy,” and, in 2019, BuzzFeed News plans to keep fighting to guarantee that it stays that way.

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