Judge Reinforces Government’s Sourcing ‘on Background’

MANHATTAN (CN) – A federal judge in Manhattan dealt a blow Monday to attempts to shed light on the U.S. government’s anonymous press briefings.

Granting partial summary judgment in a Freedom of Information Act case, U.S. District Judge Gregory Woods agreed with the U.S. State Department’s refusal to make public the names of officials who set up restricted briefings for journalists between 2012 and 2014 on topics including Boko Haram, Afghanistan, Syria and Ukraine.

Because the briefings were designated as “on background,” the journalists were could not attribute any information obtained there to anyone but  anonymous administration officials.

While the “on background” shield is typically employed particularly for sensitive news matter, or matters where the source does not have permission to speak on behalf of the government, New York University journalism professor Charles Seife began digging to determine whether the government was exploiting the tool to control press coverage.

“I’m trying to figure out why the government is doing these background briefings … and see if I can understand what the government is really up to when it does,” Seife said in a phone interview Tuesday.

In the summer of 2014, Seife filed FOIA requests with the State Department to turn over a number of transcripts from various conference calls or briefings that were designated “on background.”

When the government failed to respond, Seife sued pro se for injunctive relief in September 2016.

“Mr. Seife claims that allowing briefers to remain anonymous gives them ‘license to lie’ and insulates them from any skepticism that they may draw if their identities were known,” Woods summarized Monday.

Though the 51-page ruling sides largely with the government, Woods notes that he is concerned about allegations that the government did not act in food faith when it said that the masked briefers are individuals who do not interact usually with the press.

“Mr. Seife has affirmed that he has personal knowledge of approximately a dozen briefings for which
the briefers’ identities were leaked, and in each case, the briefer was an official spokesperson or was
otherwise ‘well-acquainted with briefing the press,'” the ruling states.

Woods nevertheless supported the State Department’s decision to withhold the identities of various lower-level Defense Department officials involved in on-background briefings.

“The public interest identified by Mr. Seife here is the interest in knowing who, and what departments within the DoD, are involved in making decisions regarding background briefings so as to elucidate the reasons for the on background briefings,” Woods wrote. “However, that public interest is insufficient to tip the scale in favor of disclosure.”

More specifically, Woods found, Seife had failed to sufficiently link the specific names he wanted and the public’s need to know those names.

Woods also also cited a Second Circuit ruling that found Department of Defense employees especially have a vested interest in anonymity.

Citing a policy concerning pending litigation, administration officials declined to comment on Monday’s ruling, emailing their answer with the preface “on background.”

The on-background case is one of several FOIA cases that Seife has initiated over the years.

“Just filed a FOIA suit,” he tweeted on May 25, 2017. “I now have five active: 2 v. FDA, 1 v. State, 1 v. Treasury, 1 v. DOJ/FBI. Distant 2nd place after @JasonLeopold.” Leopold is an investigative reporter at BuzzFeed.

Woods noted that Seife alleged, without stating his source, that the number of press briefings held on background increased from 20 percent in 2008 to nearly 90 percent in 2014, all during the Obama administration.

“As a journalist I kind of feel like the backbone of FOIA is people have the opportunity to litigate,” Seife said Tuesday in an interview.

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