Fred Schulte’s investigation into problems with Medicare Advantage plans took a lot of digging, filing of FOIA requests and ultimately a lawsuit to force CMS to turn over certain documents. We asked him, “At what point should a reporter consider filing an FOIA request or even suing a government agency to obtain information?”

By Fred Schulte

Obamacare gets blamed for a lot of things in Washington these days. But impossibly long delays in acting on Freedom of Information Act requests?

That may sound like a stretch. But it’s what Justice Department attorneys claimed in response to a FOIA lawsuit the Center for Public Integrity filed last year. We were trying to make public financial audits and other documents detailing government oversight of the fast-growing Medicare Advantage health insurance program for seniors. (Disclosure: I’m a plaintiff in the suit).

The Justice Department argued that the Centers for Medicare and Medicaid Services has a backlog of some 3,000 requests and may need a decade or more to dig out from under some large cases – ours apparently among them. Justice said the FOIA office was under “unusual strain” due to the demands of launching the Affordable Care Act.

So does this mean health care reporters are wasting their time filing a FOIA request?  The quick answer: Yes, no and maybe.

Sometimes yes: Reporters should resist when officials invoke FOIA, especially when you’re seeking fairly routine information, or types of records the agency has released in the past. Don’t just agree to file that request so it can languish for years. Talk to supervisors and try to negotiate a way around FOIA. Often, the best FOIA request is the one you never had to file.

Sometimes no: Let’s face it. It doesn’t take long to file a FOIA. Several organizations can help if you’re unsure how to compose a FOIA letter. Having a pending FOIA request can keep a channel open to agency officials. It also means you can write about a lengthy delay if you encounter one. And you can’t go wrong planting seeds for future stories, even if they may take years to harvest.

Sometimes maybe: I filed our Medicare Advantage FOIA request with CMS in May 2013. We got nothing, so in May 2014 we filed suit in federal court in Washington, D.C. It took us almost another year, until March 2015, to get any records to speak of – and much of what CMS handed over at first was almost totally blacked out.

Fortunately, U.S. District Judge John D. Bates ordered the government to step up disclosure. Bates said he understood CMS had many demands on its time, but wrote he was “deeply concerned about a proposed production schedule that may take decades to complete.”

We’ve written several articles based on the documents released through the suit, such as a previously unpublished CMS study that showed officials were advised of Medicare Advantage overbilling as early as 2009.

Another story used CMS emails to show how Medicare Advantage investors made billions off an ill-timed CMS memo. Two other articles detailed previously secret audits that found widespread Medicare Advantage overcharges.

The most recent story revealed that the White House budget director sent a letter to HHS Secretary Sylvia Mathews Burwell in February calling for a “more aggressive strategy” to thwart improper government payments.

We expect more stories as we pry more records from CMS.

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Fred Schulte is a four-time Pulitzer Prize finalist, most recently in 2007 for a series on Baltimore’s arcane ground rent system. Schulte’s other projects exposed excessive heart surgery death rates in veterans’ hospitals, substandard care by health insurance plans treating low-income people and the hidden dangers of cosmetic surgery in medical offices. He spent much of his career at The Baltimore Sun and the South Florida Sun-Sentinel. Schulte has received the George Polk Award, two Investigative Reporters and Editors awards, three Gerald Loeb Awards for business writing and two Worth Bingham Prizes for investigative reporting. He is the author of “Fleeced!,” an exposé of telemarketing scams. Schulte can be reached at fschulte@publicintegrity.org or 202-481-1210.