The U.S. government customarily grants fee waivers to journalists who seek documents under the Freedom of Information Act, or FOIA.Threatening to charge fees can effectively block independent journalists from obtaining documents that are in the public interest. It appears to me that the State Department uses such techniques to harass or stall journalists who seek information that the government wants to keep secret.
In April 2011, the State Department classified me as "news media" for FOIA purposes. The U.S. Agency for International Development agreed in November 2011. But the State Department is now refusing the fee waiver (download State Department's Sept. 27 letter) and classifies me as "other," not a journalist.
Uncle Sam's attitude might be different if I hammered away at Cuba's socialist government a little more often.
The government's Radio Martí has paid journalists hundreds of thousands of dollars over the years. Here's a giant 813-page document listing Radio and TV Martí payments to journalists, consultants and others from 2003 to 2010.
Some government-financed journalists have advocated armed attacks against Cuba, according to Reporters for Hire, a website that contends that five Cuban spies were wrongfully convicted in Florida in 2001.
Reporters for Hire cites, for instance, U.S. payments to journalist Enrique Encinosa. He advocated the bombing of Cuban hotels in a 2005 interview for the documentary, "638 Ways to Kill Castro." Encinosa said:
I personally think it’s an acceptable method. It’s a way of damaging the tourist economy. The message that you, one, tries to get across is that Cuba is not a healthy place for tourists. So, if Cuba is not a healthy place for tourists because there’s a few windows being blown out of hotels, that’s fine.Reporters for Hire said Encinosa:
Was employed by the U.S. government while he was working as an “independent” news director on the powerful right-wing Spanish-language radio station in Miami.He received $5,200 to host a weekly Radio Martí show from Oct.1, 2000, to Sept. 30, 2001, for a total of $10,400.
My letter to the State Department (download PDF) is addressed to the chief of the Statutory Compliance and Research Division. He is Patrick Scholl, according to the State Department's October 2012 phone directory. My letter to him is below, along with links to 13 titillating enclosures:
Case No. F-2011-25244
Oct. 15, 2012
Chief, Statutory Compliance and Research Division
U.S. Department of State
Washington, D.C. 20522-8100
I am writing to appeal the State Department’s denial of a fee waiver in connection with Freedom of Information Act (FOIA) Request Case No. F-2011-25244, which seeks records pertaining to a democracy promotion program in Cuba.
The State Department’s Sept. 27 assertion (letter enclosed) that I do not belong in the “News Media” category comes despite the fact that:
A waiver of search and review fees is clearly warranted. I am a representative of the news media and I am not seeking the records for commercial use.
- In April 2011, the State Department determined that I belonged in the “News Media” category (letter enclosed).
- The U.S. Agency for International Development came to the same conclusion in November 2011 (letter enclosed).
- I have been an invited guest on U.S. government-financed Radio Martí, which clearly identifies me as a journalist.
Below I address the questions listed in the “Fee Waiver Information Sheet” that the State Department sent me (enclosed).
1. State why you believe the subject matter of your request concerns the operations or activities of the Department of State.
Answer: I am requesting copies of any contracts between the State Department and Freedom House Inc. that were awarded in connection with a program called “Grassroots Initiatives for Civic Expansion in Cuba.” An Office of Management and Budget A-133 audit (enclosed) shows that Freedom House spent $134,839 on the program during the fiscal year that ended on June 30, 2008. The CFDA number is: SLMAQM08GR518.
2. From what other sources have you attempted to obtain this information? Have you tried to obtain this information from the Foreign Relations of the United States Series, the National Archives and Records Administration, or public libraries. Demonstrate the absence of the requested information from the public domain.
Answer: I searched both the Foreign Relations of the United States Series, and National Archives and Records Administration online records and did not see any information about the State Department’s democracy promotion programs.
3. Provide a summary of your educational background and work experience, particularly in the field of foreign affairs, and your expertise in the subject area of your request.
Answer: I have a master’s degree in journalism from Temple University. I was a Fulbright scholar in Ecuador and spent my junior year abroad in Mexico.
I have been been a journalist since 1983 and have worked throughout Latin America. I was Havana bureau chief for The Dallas Morning News from 2000 to early 2005. Before that, I was the newspaper’s Mexico City bureau chief.
I have been an invited speaker at conferences in Mexico, Colombia, Costa Rica, Cuba, Florida, New York, Louisiana, Texas and Massachusetts, and I have conducted journalism workshops in Guatemala, Bolivia and Nicaragua.
I ran the Nicaragua workshop at the invitation of the federal government - the now-defunct U.S. Information Agency, I believe - in February 1997.
I have been a staff writer at seven daily newspapers, including the Miami Herald. My work has been nominated for the Pulitzer Prize at least eight times.
I was metropolitan editor at the Houston Chronicle before moving to Florida, where I am a freelance journalist.
At the request of the New York Times, I contributed to that paper’s online Cuba page from October 2009 to December 2010.
Over the past decade, I have taken part in many television and radio programs about Cuba. I am a regular guest on the University of West Indies’ NewsTALK 93FM radio in Jamaica. I have also been a guest on U.S. government-financed Radio Martí.
Since 2010, I have written articles about Cuba for the Florida Center for Investigative Reporting, the Pulitzer Center, Junior Scholastic, Cuba News, Madrid-based Cubaencuentro and other publications.
My story about the late dissident leader Oswaldo Payá was published in Spanish in the September 2012 issue of Voces, an independent pro-democracy magazine based in Cuba.
See samples of my work here.
4. Expand on your ability and intent to disseminate the information requested, e.g., Have you published or disseminated information in this or related fields in the past? Is the information requested to be used in a specific article or paper currently being prepared? When is the article to be published or the program to be aired? To what audience is the article or program aimed?
Identify the particular person who will actually use the requested information in
scholarly or other analytic work and then disseminate it.
Answer: I will use and disseminate the information. I have a strong track record of publication, and have written hundreds of articles about Cuba since 1994. The articles have been published in dozens of U.S., Canadian and Mexican newspapers.
Precisely how I use the requested information depends on what documents are released.
I am increasingly disseminating my reports on a range of platforms, including newspapers, magazines, blogs, social media, radio and television. A few examples:
In September 2012, I released an hour-long documentary called, “Las Damas de Blanco and their fight for the streets of Cuba.” Mauricio Claver-Carone, creator of a blog called Capitol Hill Cubans, wrote:
As the Castro regime targets The Ladies in White (Las Damas de Blanco) in a violent crackdown, a timely new documentary sheds further light on the courageous pro-democracy movement. Along the Malecón’s Tracey Eaton has released a new documentary entitled, “La Damas and Their Fight for the Streets of Cuba.” The footage is quite extraordinary.In October 2012, América TeVe, a Spanish-language cable channel in Miami, featured my exclusive interview with fugitive Cuban spy Juan Pablo Roque for straight four days.
I sold an article based on the Roque interview to the non-profit Florida Center for Investigative Reporting, or FCIR. The center then distributed the piece to its partners, which include the Miami Herald, El Nuevo Herald and other media organizations.
I plan to offer future stories to both the FCIR and the Pulitzer Center for Crisis Reporting in Washington, D.C.
I received a Pulitzer Center travel grant for Cuba-related reporting in 2010 and again in 2011. The web page for my project is here.
The center describes itself as:
“An innovative award-winning non-profit journalism organization dedicated to supporting the independent international journalism that U.S. media organizations are increasingly less able to undertake. The Center focuses on under-reported topics, promoting high-quality international reporting and creating platforms that reach broad and diverse audiences. Center-supported and commissioned reporting appears in outlets as diverse as The Washington Post, The New York Times, Christian Science Monitor, Al Jazeera English, TIME.com, The Huffington Post, PBS NewsHour, Forbes, BBC/The World, and many other media.”5. Describe any commercial interest that would be furthered by the disclosure of the requested information, e.g., Will you be paid for the publication or dissemination of the requested information? If so, how much will you be paid and in what manner will you receive payment? Will you receive any other type of commercial benefit due to your dissemination of the requested information? A "commercial interest" is one that furthers a commercial, trade, or profit interest as those terms are commonly understood.
Answer: My interest is journalistic, not commercial. I expect to receive modest compensation for my journalistic work, but I will not receive any benefit or financial gain from the release of the requested materials. I will use my editorial skills to create new content based on the material gathered and I will distribute it to an audience.
Producing new content will not preclude me from posting online material that I receive through the FOIA. Publishing documents online serves the public interest. It allows readers to review unfiltered information so that they can make up their own mind about controversial issues. It helps generate new ideas, leads and information as Internet users give their perspective and insight on the material. It also helps shed light on the details of government operations, which can enhance accountability and transparency.
It is too early for me to say precisely how much I will be paid for my articles and other journalistic projects related to the requested materials. I do report all earnings to the Internal Revenue Service. In answer to your question on the manner of payment, news organizations I deal with typically pay by paper checks that are sent through the mail.
As part of my journalistic work, I have also requested Cuba-related documents from the U.S. Agency for International Development, or USAID. The material I am requesting from the State Department is similar to that which I am requesting from USAID. I plan to use the requested material from both entities to produce reports about U.S. government-financed democracy promotion programs in Cuba.
USAID initially declined my request for a fee waiver, but agreed to the waiver after I presented evidence and letters showing a solid basis for expectation of publication.
Section 552(a)(4)(A)(ii) of title 5, United States Code states:
“A freelance journalist shall be regarded as working for a news media entity if the journalist can demonstrate a solid basis for expecting publication through that entity, whether or not the journalist is actually employed by the entity. ”For your reference, I am enclosing the letters I submitted to USAID. They include:
Also attached is a letter from media lawyer Joseph R. Larsen. He wrote me a letter of support when I appealed USAID’s initial denial of my fee waiver request.
- An Oct. 21, 2011, letter from Tom Hundley, senior editor of the Pulitzer Center. The letter states the terms of the 2011 grant.
- An Oct. 20, 2011, letter from Trevor Aaronson, co-founder of the Florida Center for Investigative Reporting, or FCIR, a nonprofit, bilingual news organization based in South Florida. The letter, he states, formalizes our agreement in which I will “research and produce a story about USAID’s programs in and focused on Cuba. FCIR is committed to publishing your story.”
- An Oct. 25 letter from CubaNews Editor Larry Luxner. He states: “This is to let you know that I plan on publishing the story you’re currently researching about democracy promotion in Cuba.”
- A letter from Alvaro Fernandez, editor of Progreso Weekly, an online publication based in Miami Beach. He states, “I am writing to express my interest in publishing your articles related to USAID-and State Department-financed programs in Cuba. I understand that you are looking into how well these programs are working and where the money for them is going. I would like to publish your findings in Progreso Weekly, a website that reaches tens of thousands of readers every month. I look forward to seeing your story.”
- A letter from Jyothi Natarajan, associate editor of The Caravan, a monthly magazine in New Delhi. He states, “I am writing from the Caravan magazine based in New Delhi to express our interest in your reporting from Cuba and to confirm that we have agreed for you to write a 1,400-word article for an upcoming issue of the magazine.”
“I worked with Mr. Eaton over several years while he was metro editor at the Houston Chronicle. I know him to be a journalist of long standing and excellent reputation and found him to be in the top drawer as an editor. I strongly urge USAID to classify Mr. Eaton as a journalist.”Before closing, I would like to point out that Section 552 states:
“… as methods of news delivery evolve (for example, the adoption of the electronic dissemination of newspapers through telecommunications services), such alternative media shall be considered to be news-media entities.”
With that in mind, I intend to publish stories related to my FOIA request on two of my online sites:
The documents that I am requesting are related to State Department-financed democracy programs in Cuba. Disclosure of these documents is likely to contribute significantly to public understanding of the government’s activities or operations. These documents may help shed light on:
If the fee waiver is not granted, I am willing to pay the charges, preferably the cost of reproduction alone and excluding fees for the first 100 pages as specified by Title 22 Code of Federal Regulations 171.15(c).
- The flow of American tax dollars into Cuba.
- Whether U.S.-government financed democracy programs in Cuba are effective.
- Whether U.S. government agencies and the organizations they finance are accountable to taxpayers.
- The role of the U.S. government in Cuba’s transition to the post-Castro era.
Also enclosed with this letter are:
If you should need additional information, please do not hesitate to contact me.
- My original FOIA request, dated Oct. 8, 2011.
- The State Department’s initial Dec. 30, 2011, response to the FOIA request.
- Sept. 27. State Department letter and Fee Waiver Information Sheet
- OMB A-133 audit
- April 25, 2011, State Department letter classifying me as “a representative of the news media.”
- Nov. 3, 2011, Agency of International Development letter confirming my status as a “news media requester.”
- Tom Hundley letter
- Trevor Aaronson letter
- Larry Luxner letter
- Alvaro Fernandez letter
- Jyothi Natarajan letter
- Joseph Larsen letter
- Original FOIA request, dated Oct. 8 2011
- State Department’s initial Dec. 30, 2011, response to the FOIA