Crimson Settles FOIA Suit

Student Press Now Entitled to Federal Agency Information

In a victory for the student press, the federal government awarded $3,000 late last month to lawyers for The Crimson to settle a 1991 suit brought by the campus daily against the federal Department of Health and Human Services (HHS) under the Freedom of Information Act (FOIA).

The Crimson began legal proceedings against HHS after the federal agency refused to release documents to the newspaper. FOIA requires the release of documents if they are not specifically confidential.

Theresa A. Amato '86, of the Public Citizen Litigation Group, took The Crimson's case on a pro-bono basis and filed a complaint on June 6, 1991.

"[We] never even wrote a brief," Amato said. "Shortly after we filed suit, they started processing [documents]."

In the following year and a half, the agency sent more than 5,000 pages, Amato said.

Robin S. Rosenbaum, counsel for the defendant, would not comment on the case.

Though the issue was never taken to court, U.S. District Court Judge Norma H. Johnson dismissed the action "with prejudice," and the federal government was forced to pay $3,000 in attorney's fees to the Public Citizen group.

"I think [the award] sends an important message to federal agencies that they can't ignore requests simply because they come from student newspapers," said former Crimson Senior Editor Joshua A. Gerstein '91.

The Crimson had requested documents from HHS while investigating the calculation of indirect costs of the Harvard Medical School, said Gerstein, who was one of the reporters covering the story.

Indirect costs are the overhead, such as building maintenance and lighting, which indirectly affect the cost of research.

Harvard Medical School currently receives a maximum indirect cost of about 88 percent above the amount of a government grant.

Thus on a $10,000 grant, the Medical School could get about $18,800.

In response to The Crimson's FOIA requests, the agency sent only old documents, saying that newer requested documents were "internal process" deliberations and therefore exempt from FOIA, Gerstein said.

The documents, however, had been exchanged between HHS and the Medical School, so they could no longer be called "internal," Gerstein said.

Gerstein blamed the agency's denial of the original request on a "tendency to ignore requests from student organizations."

Amato added that the agency began to send documents when they thought they would be forced to "justify in court their blanket denials for requests for thousands of pages of documents."

According to the law, if one party "substantially prevails," it is entitled to recover attorneys' fees and costs stemming from the suit, Gerstein said.

The thousands of pages released subsequent to the complaint constituted a substantial prevailing, he said.

"[That the] Public Citizen Litigation Group was willing to litigate [this case] for us may help cause federal officials to give more serious weight to requests from The Crimson and similar organizations," Gerstein said.