“In lieu of its popular email service, the FBI suggests sending a fax or snail mail, a procedural change that has more to do with obstructing the law than a dearth of resources.”
Exactly the thought that crossed more than a few journalists’ minds, I’m sure.
So, what was/is wrong with the FBI’s eFOIPA process?
For one thing, as SPJ FOI Committee member Jonathan Peters pointed out in a tweet, it has normal business hours: 4 a.m. to 10 p.m. As Jonathan asked: Why?
For another, the portal’s landing page contains a “terms of service” agreement. Until Tuesday, it noted that only certain types of requests would be handled through the online request system. All other requests would be handled by fax or paper.
Portal requests would not be accepted for agency emails and other documents. Requesters could submit only one request per day and one request per submission. The portal also limited requests to 3,000 characters.
All of those restrictions would seem to violate the intent and spirit of the FOIA. They also lend supporting evidence to those who believe the FBI is less interested in following the law and more invested in obstructing those who would use it.
The Daily Dot’s Andrew Couts and Dell Cameron reported Tuesday afternoon that the FBI was removing its restrictions and would accept all requests via the eFOIPA portal. The agency also said the portal would operate 24 hours a day.
But that still leaves the “terms of service” agreement, which you have to check in order to proceed with a request. Why? Why not just provide notes/warnings/what have you and let it go at that?
Once past the “terms of service,” the requester is greeted with a number of personal questions – address, phone number and a few others that seem unnecessary. In fact, the FBI said in a statement Tuesday that the phone number was only required during testing of the system.
Indeed, the agency told The Daily Dot that it’s had the portal under development for two years. It says on the landing page that the latest iteration is the second beta test, prior to the March 1 public release.
I suggest the FBI hold off and get a developer who understands what users want and need in a government-agency interface.
Oregonian journo Bethany Barnes argues a 2015 indie-favorite album is about public records requests and not about love.
Maybe she’s right or maybe she’s alternatively factualizing to make her case in a post-truth sense.
I think it’s best to let you decide..
Death Cab For Cutie’s Latest Album is About Love—of FOIA
By Bethany Barnes
Death Cab For Cutie is an indie rock band known for songs that chronicle love stories fueled by cynicism and passion. So it was only a matter of time before they released an album about records requests.
I recently got around to listening to Death Cab’s latest album and I think there’s a case to be made that it’s a soulful tribute to transparency.
For starters, it’s called Kintsugi. Kintsugi, as I learned from a quick Google search, is a Japanese pottery technique used to make new art by fusing together broken pieces. Conceptually, Kintsugi is about embracing something broken to find beauty. Anyone who has filed a records request can consider themselves a practitioner of the same art form.
We know the Freedom of Information Act is both beautiful and broken. Don’t take my word for it, just read this take from the government on the matter: “FOIA Is Broken: A Report”
Not that I need to convince this audience, but for proof of what’s heart-stopping about public records, consider how the Fort Worth Star-Telegram won the 1985 Pulitzer Prize for Public Service. The paper’s investigation exposed how a helicopter design flaw killed 250 US servicemen.
A gem from the story behind that story, as told by Roy J. Harris Jr. in his excellent book “Pulitzer’s Gold”:
“Can you tell me about these accidents?” Thompson asked.
“No I can’t,” White responded.
“Well, what if I sent a FOIA?” the reporter followed up.
“I’ve been waiting years for somebody to ask that.”
That reporting saved lives. The deadly flaw wasn’t unknown; it was just that nobody fixed it until the press got involved. Military records showed that.
Emotional stuff, public records. That’s why it makes perfect sense that Death Cab, once described as “one guitar and a whole lot of complaining,” would inevitably make an entire album’s subject freedom of information.
Let’s look at the lyrical evidence:
“I don’t know why/I don’t know why/I return to the scenes of these crimes” — Song: “The Ghosts of Beverly Drive”
You can’t stop thinking about that police brief you read the other day. You’ve got a hunch, so you file a request for the police reports.
“You’re always out of reach when I’m in pursuit/Long winded then suddenly mute” — Song: “You’ve Haunted Me All My Life”
Clearly an ode to a records officer.
“And I’ve got nowhere to go except further below/So I keep digging/And it gets darker everyday/But I see no other way than just committing.” — Song: “Everything’s A Ceiling”
The point in the investigation when you start muttering to yourself, “Follow the money!”
“Zeros and ones, patterns appear/They’ll prove to all that we were here/For if there is no document/We cannot build our monument” — Song: “Binary Sea”
Obviously a conversation about why you need to talk to the IT person and not the spokesperson about exporting the database in a machine-readable format.
“And so I wait but I never seem to learn/How to capture your diminishing returns” — Song: “You’ve Haunted Me All My Life”
When the redactions get heavier with each subsequent request.
“You’ll never have to hear the word “no”/If you keep all your friends on the payroll/The non-disclosure pages signed/Your secret’s safe between those lines” — Song: “Good Help (Is So Hard To Find)”
When the agency has denied your records request and you must explain why the public interest demands disclosure.
“I don’t know why, I don’t know why/I don’t know what I expect to find/Where all the news is second hand/And everything just goes on as planned” — Song: “The Ghosts of Beverly Drive”
When the agency’s spokesperson doesn’t understand why you won’t just say which exact record you want and you sigh and say, “But I haven’t seen the records because you won’t let me see them. I can’t ask for something if I don’t know it exists. They are your records and I don’t know how you keep them. That’s why I’m asking.”
“Darling, don’t you understand/That there are no winners/Or medals hung from silken strands/To greet you at the finish/As we’re dissolving into the sea/I can only take what I can carry/As the counsel’s combing through our debris/For the treasures we never buried” — Song: “Hold No Guns”
When the spokesperson is breaking the bad news to officials that the agency’s general counsel is reviewing your records request and will soon produce damning documents.
“And there’s a dumpster in the driveway/Of all the plans that came undone” — Song: “Black Sun”
Corrupt officials have heard about your request and they’re not taking it well.
“There’s a long, slow fade/To a darkened stage/And I hear you say/’Only a fool gives it away’ — Song: “Good Help (Is So Hard To Find)”
The agency has asserted that it is allowed to charge “reasonable fees.” The fees are not reasonable.
“Seems you finally found, finally found El Dorado/So why does it feel underwhelming, barely real?” — Song: “El Dorado”
El Dorado is a pet name for The Documents. Clearly.
“And it’s such a hard thing to do/So take all you can” — Song: “Ingene”
When you’ve negotiated to inspect the records in person so must take as many photos of them with your phone as you can because this might be your only chance.
“No room in frame/For two” — Song: “No Room in Frame”
You have the records, you’ve found proof of wrongdoing, you’ve written the story—your editor urges you to focus. It is time to cut out some hard-won details. Can’t bog down the narrative.
“So lean in close or lend an ear/There’s something brilliant bound to happen here” — Song: “Binary Sea”
The investigation is done. It’s on today’s front page. You’re at your desk and the phone rings. On the line is someone who just read your story. She’s calling to tell you you can get even more records.
Sure, maybe the album is about a romance. But I like to think Ben Gibbard, Death Cab’s frontman, is telling us about the power and poetry found in the pursuit of public records. After all, the band’s most famous single is “I Will Follow You Into The Dark.”
Isn’t that what every journalist must do to shed light?
Bethany Barnes is a journalist at The Oregonian. Before taking her records requests to Portland, she spent three years in Las Vegas (Also the subject of a Death Cab song. See “Little Bribes”) and in 2016 was named Nevada’s Outstanding Journalist.
Over the last 20 years there’s been a surge in government offices and other employers prohibiting staff from ever speaking with journalists unless they first ask the public information officer or some person in management.
In addition to the surveillance factor that silences employees about most anything the bosses would not like, the policies often cause massive delays and officials frequently deny interview requests outright. Or they sit in on interviews or do other obstruction or manipulation.
SPJ has a good picture of this now. Carolyn Carlson of Kennesaw State University has now done seven surveys on behalf of the organization and they show a national culture interlaced with censorship. Most reporters who cover federal agencies say they must get PIO approval to interview agency employees and most say the public is not getting all the information it needs because of such restrictions. Forty percent of public agency PIOs say they block specific reporters because of “problems with their stories in the past.”
State and local, science and education reporters confirm the same kinds of problems.
Particularly chilling, most police reporters say they can rarely or never talk to a police officer without involving a PIO. And police PIOs say they must monitor interviews for reasons like, “To ensure that the interviews stay within the parameters that we want.”
What should journalists do?
Most importantly, go after the “Censorship by PIO” like the deep corruption it is. Any entity that prohibits people from communicating except when they notify the authorities is keeping information from the public. And that’s a misallocation of resources as serious as any other we investigate. It also creates an opacity that’s fertile ground for malfeasance and an unconscionable conflict of interest allowing officials to strangle investigation of their actions.
Investigate how long has it been happening in your area. Why do officials feel they have a right to do this? How often are delays and blockages happening? What about the fact that many times staff have tipped reporters off to serious issues? Are officials trying to stop that process?
Home in on one incident or series of nonresponses. Who in the food chain said a staff person could not speak? What was withheld? What were the power plays and the political motivations?
Ask why the public should trust official reasoning like, “We have to coordinate the story. We just want to know what is going on. We need to tell reporters the right person to talk to.”
Explain it to the public. It’s not “inside baseball.” It’s the public’s business. If you don’t feel you can write an unbiased news story, make it an editorial.
Explain it when it happens. Don’t just say, “XYZ agency declined to make an expert available.” Say, “XYZ agency prohibits all employees from speaking to the press about anything unless they notify the press office. It often denies such interviews. The PIO did not explain why experts could not speak to this reporter.”
Collaborate with journalists, news organizations and journalism groups on resistance. When agencies hold press conferences or briefings have reporters take turns asking why journalists can’t speak to people in the agency without the PIO guards. And report the response.
Don’t kid yourself that your great reporting skills get you all you need to know. We have no right to take that risk. Millions of employees have been told to shut up. So chances are good some silenced staff people—including those you talked to after going through the PIO—could blow your award-winning story out of the water. Or educate you about the mind-blowing stories you don’t have a clue about.
Remember that journalists’ acquiescence to “Censorship by PIO” is just as dangerous as the worst thing it will keep covered up. For instance, the press did hundreds of stories that CDC and FDA handed out over the last couple of years. But with PIO guards on us, we didn’t get—and probably could never have gotten—the fact that there were not strong, consensus guidelines for Ebola containment in place and there was a storeroom for pathogens that hadn’t been inventoried in decades (the one that contained smallpox).
Remember that likely the biggest reason we can’t do anything about these restraints is that journalists keep saying we can’t do anything about them.
In the meantime, as we fight the policies, we are obliged to use all techniques possible to undermine the blockages. For that:
Rely on PIOs as little as possible. Get away from PIO and agency oversight whenever you can, including during routine reporting. Many people will say something different away from the guards. Find out for yourself who you should talk to. Analyze staff listings, hearings and meeting agendas. Ask outside source people who in the agency works on the issue. Use search engines and literature searches to pinpoint who in an agency spoke or wrote on an issue. Then study the hierarchy to understand their position in it and other people close to them you might talk to.
Contact people directly and tell them you want to talk to them, even if you have to contact the PIO also. Sometimes the internal expert will advocate for the interview.
Interview outside sources and then contact the inside source persons in hopes they will want to respond to what you know.
When you talk to a source person, even if the PIO is listening in, ask who outside the agency is working on the issue. The source person may mention an interest group or person that the agency is actually talking to.
Consider holding the source person, particularly if they are an official, responsible: “Mr. Doe did not respond to attempts to contact him.” They should be responsive even if agency cultural norm is to hide behind the PIO.
Keep a running descriptive list of responses and nonresponses and hold agency leadership and elected officials accountable. Consider keeping the list on the web.
At least occasionally, do a series of incessant follow-ups. I contacted CDC about newborn circumcision 20 times as PIOs repeatedly refused to let me talk to their experts. Then I wrote a press release about it. Let your audience know what subjects the agencies are blocking information on.
Go to obscure meetings or sessions. Speakers sometimes forget reporters could be there. If possible, sign in as a member of the public, not as press.
Regularly give agency staff every possible way to contact you.
Note: An earlier version of this article appeared in the IRE Journal.
Kathryn Foxhall, currently a freelance reporter, has written on health and health policy in Washington, D.C., for over 40 years, including 14 years as editor of the newspaper of the American Public Health Association. Email her at email@example.com.
According to Zaid’s site, he’s an expert in defending “former, current, and prospective civilian federal employees, defense contractors, members of our active duty and reserve military, and journalists, particularly when they are threatened by the overshadowing spectre of national security.”
Of course, consider the risk. At this point, if you sue Trump, he may sue you back (and/or stick his tongue out at you)—or throw you in jail.
A North Georgia newspaper publisher was indicted on a felony charge and jailed overnight last week – for filing an open-records request.
Fannin Focus publisher Mark Thomason, along with his attorney Russell Stookey, were arrested on Friday and charged with attempted identity fraud and identity fraud. Thomason was also accused of making a false statement in his records request.
Here’s AJC’s nut graph:
Thomason was charged June 24 with making a false statement in an open-records request in which he asked for copies of checks “cashed illegally.” Thomason and Stookey were also charged with identity fraud and attempted identity fraud because they did not get Weaver’s approval before sending subpoenas to banks where Weaver and another judge maintained accounts for office expenses. Weaver suggested that Thomason may have been trying to steal banking information on the checks.
Thomason Speaks at SPJ Region 3’s MediAtlanta
Thomason told his story at Region 3’s annual conference, dubbed MediAtlanta, on Oct. 29—you can watch the whole thing above. He’s in the center, to his left SPJ Georgia president-elect Dan Whisenhunt, to his right Kennesaw State University Professor and FOI Committee member Carolyn Carlson. Video by Nydia Tisdale.
You can read SPJ Georgia board member Julius Suber’s review of the event here.
Georgia Citizen Journalist Facing Criminal Charges for Recording Public Meeting
By Dori Zinn
Nydia Tisdale showed up to record a Georgia Republican Party campaign rally at Burt’s Pumpkin Farm in Dawsonville on Aug. 23, 2014.
A little bit into her recording, she was forcibly removed by a police officer, even after admitting she had received permission to be at the public gathering by one of the property owners. In the video, you can hear her crying, “Help! Help! Help!” and shouting at the officer, “Identify yourself!” and “Let go of me!” She demanded his name and badge number. He refused to give it to her. He forced her out of the public meeting area into an empty barn, bending her over a countertop and pressing his groin against her backside, leaving her with bruises and emotional distress long after her arrest.
It wouldn’t be until later, when two other officers arrive, that the officer gives Tisdale his name: Dawson County Sheriff’s Office Captain Tony Wooten.
Tisdale was arrested and her video camera was confiscated. Later that day, she was charged with misdemeanor criminal trespass and obstruction of an officer, a felony. Shortly after midnight, she was released on bond and five days after that, she got her camera back.
How did she get here?
This isn’t Tisdale’s first recording. In fact, Tisdale has set up her camera for years, recording hundreds of public meetings across northern Georgia. To date, she’s been recording public meetings across the state, totaling almost 900 videos in six years.
Tisdale doesn’t even call herself a reporter. “A reporter is employed,” she says. “Once they don’t have a job, they become a journalist.”
She may have a different view of what a “reporter” is, but her work is many, many acts of journalism.
“I call myself a video journalist or citizen journalist. Really, just a single woman with a camera,” she says. “No one is dictating to me what to cover and what not to cover.”
In 2009, she was working as a property manager when there was a proposed landfill near the zoning of the property she was managing at the time.
“I was very involved in researching everything I could about the project, and I discovered over time that it wasn’t compliant with state law,” she says.
Eventually, the applicant withdrew his application, but that didn’t stop Forsyth County, where the proposal was set, from misleading the public into believing a landfill would be put there.
Tisdale went to the county meetings, speaking out against the proposal. Even after the landfill fight was over, she met with the county officials to point out all the mistakes they made, including taking advantage of the applicant, who was out tens of thousands of dollars in engineer fees, attorney fees, and paying the county.
“I’m a layperson, I don’t have a degree in this, I’m not a planner,” Tisdale says. “How come I can find these mistakes and all these people that are paid to do it can’t find these mistakes?”
Eventually, the city planner was fired. It was then that Tisdale realized sharing information from public meetings and open forums was important to her.
“With news media shrinking staff, local government isn’t being covered,” she says. “Citizen journalism fills in that gap.”
Tisdale used to easily put 80 to 100 miles on her car a day covering a meeting. She can get around the state if she chooses, but typically stays in north Georgia. Early on, she would record three meetings a day if they were in the same location, but now she goes to about two to three meetings a week.
It’s not limited to one type of meeting, either. She’ll go to city council meetings, county commission meetings, republican and democrat meetings, citizen forums, debates, and literally anything that is open to the public that informs citizens and voters.
When she arrives at whatever meeting she’s going to, she’ll get some shots of the building or the area around where the meeting is being held. Then she’ll record the meeting in its entirety. “Gavel to gavel,” she says.
From there, she edits very little of her actual recording. She indexes her videos, so if you want to skip ahead to a certain part, it’s easy. Sometimes, if one part is more meaningful than the rest, she’ll make an excerpt of it.
“I give the full context and speech,” she says. “It’s unfiltered and without commentary.”
While Tisdale has been hired to film some public meetings, she doesn’t normally get paid. But she does have a PayPal donation option on her website, AboutForsyth.com. Journalism isn’t her primary source of income, but it occupies as much time as a full-time journalism job.
When she started attending meetings and realized they weren’t compliant with Georgia Sunshine Laws, she’d complain to the city, county, or whatever body was in charge of that meeting. Now she carries around a copy of it to every meeting she attends, sometimes handing out copies to other people.
Despite her solid six years and 900 videos, this is her first time facing jail time for recording open meetings.
What’s happening now?
Tisdale’s original 2014 charges — a misdemeanor criminal trespass and a felony obstruction of an officer — got an additional obstruction of an officer charge, this time as a misdemeanor, bringing her total to three. She was indicted on Nov. 16, 2015 in Dawson County, but not before giving an ante litem notice — an intent to sue — on Aug. 20, 2015 to everyone involved in the 2014 arrest, including: Dawson County, the Sheriff’s office, the three officers that arrested Tisdale, and Johnny and Kathy Burt of Burt’s Farm, among others.
She was formally arraigned this year on March 15 and filed her federal lawsuit against the three officers that arrested her on May 9, including Officer Tony Wooten. On Aug. 22, she made a complaint to Dawson County about Wooten’s physical abuse during her arrest and an incident report was made the next day, alleging sexual assault. Wooten resigned from the Dawson County Sherriff’s Office the same day.
In early October, Tisdale had a pre-trial motions hearing in her criminal case, but no judgment has been made.
Jail time may be pending for Tisdale, but she doesn’t plan on stopping any time soon.
“I really enjoy what I do. It’s a passion,” she says. “Any event that’s worth remembering, I usually have a camera and I record it.”
Dori Zinn is a full-time freelance journalist based in Fort Lauderdale, Fla. Her work has been featured in MoneyTalksNews.com, Realtor.com, Fort Lauderdale Magazine, South Florida Gay News, and others.
This is a guest post by DC-based journalist Kathryn Foxhall.
After eight months the White House is not answering the complaints of journalism and other groups that the Obama Administration has entrenched the practice of prohibiting federal employees to speak to journalists without surveillance by public information offices, and that it often blocks them from communicating at all.
A year ago 53 national organizations sent a letter to Obama urging changes to these policies that constrict information flow. The groups also complained about agencies holding official briefings “on background,” restricting reporters from naming the officials who are talking.
In December, a delegation led by SPJ met with White House Press Secretary Josh Earnest and others on the issue. Despite a promise that officials would get back to SPJ, emails to Earnest and Eric Schultz, Principal Deputy Press Secretary, have gone unanswered.
“We don’t even know if President Obama has been advised of our complaint,” said Lynn Walsh, SPJ’s President-elect. “He’s spoken to press groups at least twice without mentioning it. It’s sad that after 53 organizations tell a White House that the silencing of millions of people is a hazard to the public, the Administration decides not to discuss it.”
The delegation to the White House included representatives from SPJ, the Society of Environmental Journalists and the American Society of News Editors. They told Earnest, among other things, that these restrictions often hide things from the press and that many times when the press doesn’t know something about federal agencies, the White House itself doesn’t know.
Earnest said he thought PIOs should be coordinating the conversations and that it is part of the journalism skill set to get a person to talk even with someone else in the room.
SPJ’s Walsh said, “We still have a special plea to President Obama not to leave these controls in place. The restrictions routinely withhold information from the public.”
SPJ has sponsored seven surveys that show these restrictions have become pervasive in federal offices, state and local governments, schools and universities and other entities in many areas of the nation.
The fact that blatant information control has become a cultural norm makes it all the more important for President Obama to use his moral suasion to speak out against it and begin the change starting at the federal level, Walsh said.
The need for that is illustrated in the recent Department of Justice report showing rampant civil rights violations by the Baltimore Police Department. Just five months ago SPJ-sponsored surveys found that over half reporters covering police say they can rarely or never interview police officers without involving a police department public information officer.
Police department PIOs in the surveys said they monitor press interviews with police officers for reasons such as, “To ensure that the interviews stay within the parameters that we want.” Half of police PIOs said there were reporters or media outlets they would not allow to speak with officers due to “problems” with the reporters’ stories in the past.
“The Justice Department report shows there can be appalling things locked in an internal culture for many years. The SPJ survey shows police departments use PIOs to actively stop things from coming out. The same is true of federal agencies and other entities that prohibit or chill communication,” said Walsh. “We are asking President Obama whether he really wants institutions to hinder the press from understanding such critical information. Eight months later, we are still waiting for his answer.”
Kathryn Foxhall, currently a freelance reporter, has written on health and health policy in Washington, D.C., for over 40 years, including 14 years as editor of the newspaper of the American Public Health Association. Email her at firstname.lastname@example.org.
The Deaths in Custody Reporting Act was signed into law in 2014, the U.S. Department of Justice is now proposing how it will mandate reporting requirements for law enforcement agencies across the country.
If someone dies in police custody, the public has a right to know.
It may sound simple, but news outlets and media investigations have shown that is not always the case.
With “Fatal Force,” The Washington Post is tracking the number of people who have been shot and killed by police. The Guardian is also keeping track of these deaths with their project, “The Counted.”
Why are news organizations keeping track and becoming the go-to place for this information and data? Because current reporting is not sufficient. According to an FBI report, in 2014, only 224 of the more than 18,000 law enforcement agencies reported around 444 fatal police shootings to the FBI.
It is unacceptable for the government to rely on media organizations to provide this information to the public. While the organizations that have stepped up and gathered the data are doing it well, what happens if the funding for these projects ends? It is also risky. The media is gathering data from what it has available to them, which is limited information compared to what the government has access to and could require law enforcement agencies to provide.
Having tried to use the data law enforcement agencies voluntarily report to the Bureau of Justice Statistics, BJS, I know the frustration first hand. Sometimes you find data but sometimes you don’t. If you want to know how many people were shot and killed by law enforcement in a particular county, you may be forced to ask and then search through individual agencies records, compiling the data into your own database.
The Deaths in Custody Reporting Act, DICRA, was supposed to help fix this reporting issue, among other things. The U.S. Department of Justice has now proposed how it will implement DICRA and is accepting public comment on the proposal until October 3. Click here to read more and how to comment.
The proposal has a number of weaknesses though and in a letter, the Society of Professional Journalists and 66 other organizations are asking the DOJ to strengthen its proposal for how law enforcement agencies will be required to report data detailing the number and how individuals die while in police custody.
Some of the concerns outlined in the letter include:
A lack of consequences for not reporting accurate data, including detailing possible penalties for non-reporting or linking federal funding to reporting compliance
The indication that BJS will rely on publicly available information “open-source review,” including news reports, for the data collection
Lack of details on how federal law enforcement agencies will comply with DICRA
As mentioned above, some news organizations have made a commitment to tracking how many people are being shot and killed by law enforcement. While the work being done by these news organizations is detailed and well-researched, is this enough?
Shouldn’t the media and in turn the public be able to easily obtain data from the government about the individuals being killed by law enforcement, public employees, with salaries funded by tax dollars? Not to mention the fact that close to $4 billion in federal grants is awarded annually to local and state law enforcement agencies. Doesn’t this make what the agencies do, also the public’s businesses?
I think so and so does SPJ.
Do you agree? Let the DOJ know. Below are some ways to share your thoughts on social media.
Here are some deficiencies in @TheJusticeDept’s proposal for collecting data on deaths in police custody: http://bit.ly/2c0oqWo @spj_tweets
Gov. should provide journalists w/ #transparent data about deaths in police custody not other way around: http://bit.ly/2c0oqWo @spj_tweets
Lynn Walsh is the current President-Elect for SPJ. She manages and leads the #NBC7 Investigates team in San Diego. She loves holding the powerful accountable and spends more time than she would like fighting for access to public information. Follow her on Twitter, @LWalsh, or contact her via email: Lynn.K.Walsh@gmail.com.
“This isn’t about journalists against the government. This is about citizens. Journalists are just the proxies,” David Cuillier, past president of the Society of Professional Journalists and member of the SPJ FOI Committee, told the Senate Judiciary Committee on Tuesday. Cuillier explained that while the signing of the 2016 FOIA Improvement Act on June 30, the eve of FOIA’s 50th anniversary, is an extraordinary accomplishment, more work must be done to continue improving the people’s access to their government.
Below is a transcript and video replay (skip to 17:00 in the video) of Cuillier’s full testimony on “FOIA at Fifty: Has the Sunshine Law’s Promise Been Fulfilled?” before the United States Senate Committee on the Judiciary, July 12, 2016:
Chairman Grassley and Members of the Committee on the Judiciary,
Thank you for the opportunity to testify today on behalf of the Society of Professional Journalists (SPJ), founded in 1909 as the largest and most broad-based journalism organization in the nation, currently representing 7,000 members. I also come to you in my capacity as a researcher and teacher of freedom of information at the University of Arizona School of Journalism.
Kudos to all of you for your continued work to improve the people’s access to their government. I have been impressed with your work, Mr. Chairman, as well as the dedication of Senators Leahy and Cornyn, to continue to improve Americans’ ability to see what their government is up to.
Honestly, I worry for the time when you all decide to retire or move onto other careers. We need strong, principled leaders who believe in the fundamental principles intended in our nation’s founding. The 2016 FOIA Improvement Act, signed into law June 30 on the eve of FOIA’s 50th anniversary, is an extraordinary accomplishment, demonstrating that people from different perspectives and political persuasions can come together collaboratively to serve the best interest of all citizens. Because of the amendments, we now have a law that codifies the presumption that government records are public unless disclosure would cause foreseeable harm. The Office of Government Information Services now can be more frank and unfettered in its advice to Congress about how to improve the administration of FOIA. Federal agencies are now instructed to provide the public a single online portal to streamline requests. These and other provisions will help citizens and journalists better understand their government, and ultimately improve our society.
Despite these advances, though, I must say that much, much more work is needed to create a law and “sunlight system” as originally intended when FOIA was first enacted in 1966. The law is broken. FOIA has been co-opted as a tool of secrecy, not transparency. I hear from journalists and citizens nearly daily about their problems in maneuvering through an intimidating system fraught with delays, confusion, and excessive fees that often results in no records or pages delivered in unusable formats blacked out entirely or in part. As a result, information that can shed light on unsafe drinking water, inappropriate expenditures, and inefficient government operations remains hidden from the public. I am not exaggerating when I say we have reached a tipping point – a crisis situation – when it comes to freedom of information in this country. We are frogs in the kettle of slowly heating water, and if we don’t jump out now we will find ourselves in a sticky and murky stew.
The research is clear: Requesters are having a harder time than ever in getting the information they need. While agencies are becoming more efficient in processing 700,000 requests a year, denials and the use of exemptions to hide information are rising. An Associated Press analysis this year of FOIA request data showed that the Obama administration has set a record in the rate requesters are denied information or told that it doesn’t exist – 77 percent of the time. In 2012, agencies’ use of exemptions to deny requests increased 22 percent over the previous year. Comparing the last three years of the George Bush administration to the first three years of the Obama administration, the percentage of denials among most agencies has increased. The culture of secrecy grows beyond FOIA as journalists struggle to receive basic information about schools because of the Family Educational Rights and Privacy Act, and through excessive message management through public information officers.
Journalists have become so frustrated that last year the Society of Professional Journalists and more than 50 other journalism organizations sent a letter to the White House urging a stop to the excessive secrecy. A delegation met with White House staff last December to discuss the problem but has yet to see any action.
Globally, as well, the United States is falling behind. Ratings of FOIA laws in the 105 nations that have them indicate that U.S. FOIA ranks 46th in its strength, behind such countries as Uganda, Kyrgyzstan, and Russia. Even Mexico’s FOIA ranks better than ours, at ninth place. Other countries have incorporated significant elements into their laws. For example, a dozen nations, such as Liberia, have declared the right to know as a constitutional right, and some international courts have even deemed it a basic human right. In some nations, such as South Korea, FOIA applies to the judicial and legislative branches. South Africa, Brazil, and Estonia require that government contractors doing the government’s business adhere to FOIA. China provides reduced or waived fees for those who demonstrate financial hardship, and officials are required to assist the illiterate and disabled in their requests. Romania requires agencies to respond within five business days, and India assesses monetary penalties against agencies that do not comply with the law. Countries such as Ethiopia provide a public records ombudsman with the authority to force agencies to disclose records, saving citizens the time and expense of litigation. Colombia requires agencies to provide records in different languages and the state of Sinaloa in Mexico requires freedom of information to be taught in the schools.
How could these nations pass us by? It makes sense, really, since the majority of other FOIA laws have been passed in just the past 15 years. Technically, Congress enacted FOIA as an amendment to the Administrative Procedures Act of 1946, which was created to deal with the growing federal bureaucracy. Amendments through the years tinkered with FOIA, but as we know, significant leaps do not occur often in our political system. Think of U.S. FOIA as a 1966 Ford Mustang. A revered classic. A 2016 Hyundai, however, has better mileage, safety features, sound, reliability, and air conditioning. If we look past sentimentality and focus on efficiency, then perhaps it is time to garage the Mustang, trade up, or at least give it a complete overhaul.
What we have created over the past 50 years in our nation’s governments – at all levels – is a growing culture of secrecy. It infuses our bureaucracies, and is difficult for any one president to change. But Congress can take actions to turn the tide, to set us back on track and create a culture of openness and accountability:
Require FOIA training of all employees. Many of the complaints I receive from journalists is that they encounter government employees who are ignorant of the law, or don’t see the reasoning behind the law – they see it as a hindrance to their day-today work, which is likely true in many cases. The Office of Government Information Services has provided training for hundreds of FOIA officers. Funding should be provided to expand training to not just FOIA officers, but all government employees.
Add enforcement mechanisms. Expecting a grandma from Topeka to hire an attorney to sue an agency is unreasonable. The deck is stacked against the citizen, and journalism organizations are less likely to sue for public records than they were in the past.9 Some states provide penalties for agencies or officials who fail to follow public record laws, such as suspension or removal, or sometimes even criminal repercussions. Those provisions are rarely enforced, but send a strong message. At minimum, courts should be required to assess reasonable attorney fees for plaintiffs that prevail and punitive fines against agencies found to be arbitrary and capricious. States that have such provisions in their laws are some of the most transparent. Perhaps OGIS should be given authority to force disclosure, or delegate that power to an independent entity that could act based on OGIS investigations (good cop, bad cop). Other enforcement models at the state level, such as in Connecticut, or international stage should be examined.
Streamline the system. As Professor Margaret Kwoka points out in her testimony, the bulk of FOIA requests are submitted by commercial interests out to make a buck, not necessarily to help the public find out what its government is up to. Those requests, subsidized by taxpayers through millions of dollars, create backlogs that impede requests from citizens and journalists. Commercial requesters, which, by the way, have lobbied since the 1950s for secrecy exemptions, should be assessed higher fees to recoup the costs and create a more efficient system for requesters working in the public interest.
Make electronic proactive disclosure work. Despite the passage of the e-FOIA 20 years ago, the transition to proactive digital disclosure has been slow. Additional staff and resources are needed to create a single FOIA online portal and develop digital systems that automatically post documents easy for the average person to find and retrieve. Congress has a long tradition of requiring the publication and distribution of government documents for free, such as creation of the federal depository library system. Freedom of information isn’t free; It’s the cost of doing business for a democracy.
Reign in statutory exemptions. Agencies frequently use statutory exemptions to end-run FOIA, making them one of the most frustrating parts of the process. Congress should restrain the abuse of Exemption b(3) and continue to reign in abuses of exemption 5. The privacy exemption, as well, has been twisted, going far beyond its intent. Over-classification is out of control. Congress should clarify the limitations for the use of these secrecy tactics.
These are just some of the ways, along with the excellent recommendations of the other panelists, that Congress can align FOIA with its original intent and begin creating a culture of transparency, not secrecy, throughout out government. Perhaps looking at the best elements of other FOIA laws – in other nations and in the states – we can find new ways of enhancing freedom of information. Or better yet, go beyond what exists today and think of tomorrow, of the amazing power and potential that technology offers to enlighten the population.
While journalists are extremely frustrated and see first-hand how FOIA’s flaws are preventing important information from being released, I want to emphasize that this is not a press issue. Journalists are merely proxies for the public. This is about our citizenry and the very nature of what we aspire to be as a nation. If we do not act now then I fear the trend toward secrecy will continue, and this country will look very different in the next 50 years.
Thank you for your dedication to reinvigorating FOIA and the opportunity to testify today. I look forward to answering your questions.
David Cuillier, Ph.D., is director and associate professor at the University of Arizona School of Journalism in Tucson, Arizona, where he teaches and researches public affairs reporting, data journalism, and access to government information. Before entering academia in 2006, he was a reporter and editor at newspapers in the Pacific Northwest, where he covered local, state, and federal government. For the past 10 years he has been a newsroom trainer for the Society of Professional Journalists, the largest and most broad-based journalism organization in the nation, and he served as SPJ’s Freedom of Information Committee chair 2007-11 and as its president 2013-14. He currently serves on the SPJ FOI Committee, as well as the board of the National Freedom of Information Coalition. He is co-author with Charles N. Davis of The Art of Access: Strategies for Acquiring Public Records and Transparency 2.0: Digital Data and Privacy in a Wired World, as well as numerous peer-reviewed research journal articles regarding the state of government transparency, public attitudes toward freedom of information, and the psychological aspects of accessing public records.
Agencies in Florida refusing to release documents associated with the Pulse nightclub shooting in Orlando, should reconsider.
Media agencies have been requesting many documents under the Florida “Sunshine” law including 911 calls, the shooters employment documents when he served as a corrections officer and information about the shooters security guard license. The state has denied these requests saying they are part of an active investigation.
According to an article in the Miami Herald, a representative in the Florida Attorney Generals Office has said the documents should be released. Read the full article here.
Having worked in Florida and having used the state public record laws often, this is not the norm. These types of records are permitted to be released and in my experience were released regularly. The fact that state agencies are deciding now, after our country experienced its worst mass shooting to date, to decide not to release these records, that belong to the public, is disappointing.
Barbara Petersen with the Florida First Amendment Foundation said, “The records requested by the media are not active criminal investigative records; rather, these are records created before the investigation into the horrific events of Sunday morning in Orlando. In fact, many of the requested records were created years earlier and, once released, will, hopefully provide some understanding of the possible motivation of Omar Mateen, the shooter, and the response by law enforcement agencies. Many of the agencies are responding to such requests by saying, ask the FBI. The FBI does not have the authority to hijack Florida’s constitution.”
According to the Miami Herald, an attorney for the media organizations has written a letter to the City of Orlando, asking for the records to be released.
SPJ supports transparency and access to public records. I am disappointed to see these records withheld and ask the City of Orlando and other agencies to reconsider their decision to keep the public in the dark.