In an exquisite irony, journalists are objecting to a new federal FOIA policy that provides the public with greater access to government records.

The federal government recently implemented a new procedure: when an agency grants a FOIA request from the media, a corporation or a nonprofit organization, it will also post the documents online, so that the public can see what was produced. Even though this results in more liberal public access to government records, some journalists oppose this practice.

As explained in this media blog post, reporters say the policy penalizes the journalists who put in the work of making the FOIA request, by precluding their ability to report exclusively on the documents obtained. The Washington Post’s investigations editor also notes that it may affect investigations built on a number of FOIA requests over time.

What does this controversy have to do with OPRA? The objections raised by the media support the argument made by the State in a pending appeal, Scheeler v. Governor’s Office, which involves the question of whether OPRA mandates disclosure of the OPRA requests received by an agency. The State’s position is that OPRA requests are confidential, as recognized by the Appellate Division in a 2005 opinion. The appellate court noted that disclosure would penalize reporters who make OPRA requests, based on the type of rationales stated by those opposing the FOIA policy.

The journalists’ objections to the new FOIA policy show that the concerns expressed in the 2005 Appellate Division opinion are not hypothetical, and should considered in the current appeal.