April 19, 2016

Do you remember your first Freedom of Information Act (FOIA) request? Vanessa Golembewski, a features writer at the entertainment and lifestyle website Refinery29, has a memorable one.

She recently asked the federal government to give her unreleased episodes of “Game of Thrones” after learning that the TV show had given advanced copies to President Barack Obama.

“President Obama is the only person outside of HBO who will see advance screenings of new episodes,” Golembewski wrote in an article about her first-ever FOIA request. “That means those who traditionally view them — mainly journalists, industry folk, and the occasional fan group — have no choice but to wait. Why did Obama get these highly coveted assets?”

“I decided this was a perfect opportunity to test the limits of the Freedom Of Information Act,” she wrote. “If the president — and by extension, our government — is in possession of a file, surely that file is subject to my request to see it as a U.S. citizen. I know it’s a stretch.”

But how much of a stretch is it? Does Golembewski stand a chance of getting her request granted? Will she even get a response before the episodes air? I reached out to two FOIA experts to get their thoughts.

First up: Michael Morisy, who founded MuckRock, a must-read website filled with FOIA advice and public records-driven investigative reporting:

“I think Vanessa Golembewski’s FOIA raises a lot of excellent questions and touches on a lot of fun aspects of public records, transparency, and copyright,” Morisy said.

But she’s probably hit a dead end. Here’s his full explanation:

The first thing to note: Vanessa didn’t actually file the request with the White House, at least not directly, but with the General Services Administration. And that’s a smart move. Why? The White House is generally exempt from FOIA until 12 years after the president leaves office, thanks to the Presidential Records Act.

But the General Services Administration is subject to the Freedom of Information Act, and that agency now handles gifts from foreign dignitaries given to the President and other government officials. This is thanks to the Foreign Gifts and Decorations Act of 1966.

The unfortunate key word there is “foreign”: If a gift is domestic, the president has wide latitude in how it’s handled, and the record might stay with the White House and outside the grasp of FOIA.

So now it comes down to: Is HBO foreign or domestic? The company is headquartered in New York City, but its part of multinational conglomerate Time Warner, which is owned by both foreign and domestic investors. Maybe Obama will play it safe and check the videos in with GSA after a weekend binge. If so, the request advances to the next hurdle: What parts are releasable?

Certainly descriptions about gifts are releasable. There’s been some interesting journalism done analyzing gifts from foreign countries, including reporters finding that Hillary Clinton received more gifts than Obama.

The GSA even has an auction site for some gifts, though I don’t see the “Game of Thrones” screeners on there (yet).

But Vanessa wants more than a description, she wants the episodes. Now she noted, correctly, that there are a limited set of exemptions, and it’s worth noting that copyright is not a FOIA exemption by itself.

Unfortunately, exemption four does cover “trade secrets and commercial or financial information obtained from a person and privileged or confidential.”

This is a balancing test, and varies greatly with the specifics of the case, but it’s fair to say that with the excitement and interest in “Game of Thrones,” having it release through FOIA before the shows official release would damage the series’ financial success, especially now that the show has moved passed the books into highly confidential territory.

The courts have ruled in Worthington Compressors, Inc. v. Costle, 662 F.2d 45 (D.C. Cir. 1981) that this kind of competitive harm (i.e., giving requesters the choice of HBO GO or a FOIA request) generally exempts the underlying material from disclosure.

But maybe there is segregable and releasable information on those DVDs that wouldn’t commercially harm HBO. If so, and the GSA had possession and control of the DVDs, they could review them and only release scenes that wouldn’t touch exemption Four. Who knows: Maybe they had a special commentary track just for the president, or a deleted scene? That could potentially be releasable.

Unfortunately, even if the FOIA reviewers did make the unlikely decision to release the DVDs, Golembewski would run into another roadblock: processing times. According to MuckRock’s GSA FOIA data, the GSA takes an average of 121 days to respond to requests. I think her odds of avoiding spoilers in that timeframe are significantly worse than Jon Snow’s chances along the Wall.

I also contacted Jason Leopold, a senior investigative reporter at Vice News and well-known “FOIA terrorist” who sued the State Department for access to Clinton’s emails. His take on Golembewski’s request?

“The White House is not subject to FOIA, so she shouldn’t even expect a response.”

I reached out to Golembewski to find out what the reaction has been to her article and FOIA request. If she gets back to me, we’ll post her response. In the meantime, what is the most off-the-wall records request you have ever made? Tweet me @RecordsGeek.

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Kelly Hinchcliffe is an investigative reporter at WRAL.com in Raleigh, North Carolina, and is passionate about public records. She previously worked as an education reporter…
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