But we—and FOIA—are still here. The battle to defend access and the press is fought on many fronts. Some of them send back good news. Some bad. But this week, squeezed in among much smarter messages and write-ups and op-eds from men and women much wiser than me, I want to focus on a front I believe is underestimated: People give a shit about us and about journalism again.
And sure, (the President and) people are pissed at us. But it’s much easier to confront anger than it is indifference (ask anyone in any relationship, romantic, professional, or otherwise). I’d choose an accusatory, foaming mouth, fake-news-propaganda-illuminati finger from a reader over the apathy of a non reader anyday.
The onus is on us, of course, to gently point that finger down toward the copy, and repeat the truth (as best we know it). And repeat it. And repeat it. And repeat. Again. Again. Again. Truth tends to prove a monumental value to citizens of any country, even if alt facts momentarily distract some of them.
Americans know that journalism—solid, investigative, costly, subscription/ad/donation-based, unapologetic journalism—is the only way this democracy survives. Truth is freedom because lies enable enslavement. A dark government will master its people while an illuminated government usually fails at the endeavor.
Press freedoms and unhindered channels of access may come and go, but people will always want to know how the government is handling its part of the deal, the tried and tested taxation-for-representation deal. That’s why we’re here. That’s why we’ll stay.
I’m not arguing FOIA fighters should sheathe their swords, or that any journos should stop pushing or caring or spitting or scuffling. On the contrary, it’s that fight I’m counting on in my optimism. The fight itself will enable its own survival. The struggle will save the long sinking institution. Its pulse will beat stronger, its blood will flow freer, its beams will burn brighter.
So to family and friends and colleagues who have accosted me recently with the question/statement what should the media do now? I answer: The same damn thing we do every day: Commit acts of journalism.
We’re not here to seek a world in which people blindly trust the media. We don’t want that world. We want readers who question everything, especially information. That’s why we attribute and prove, explain why a source is anonymous, link to documents, submit FOIA requests. We should earn trust with every story, with every line.
Journalism isn’t about arriving at absolutes—it’s about the everlasting journeytowards them. Again. And again. And again. Like captains exploiting the North Star, journalists should always reach toward truth longingly, knowing full well it’ll never actually rest within their grasp.
This Sunshine Week and in all the weeks and months and years ahead, keep shining, journos. (Most of) you are doing great, and (most of) the country is grateful for it, even if (some of) it’s being an asshole right now.
President Trump has already labeled major press outlets the “fake news media” and the “enemy of the people.” His administration has blocked major news outlets from a briefing because it didn’t like what they published.
With that in mind, the public should understand “censorship by PIO” at the federal level: For years, in many federal agencies, staff members have been prohibited from communicating with any journalist without notifying the authorities, usually the public information officers. And they often are unable to talk without PIO guards actively monitoring them.
Now, conversations will be approved or blocked by people appointed by the Trump Administration, some of them political operatives.
The information about the “administrative state” that impacts our lives constantly is under these controls. They also cover much of the data through which we understand our world and our lives.
In January, according to the Washington Post: “Trump called the government’s job numbers ‘phony.’ What happens now that he is in charge of them?”
Some of us may feel less comfortable with Trump people controlling this information flow. But actually a surge in these controls has been building in the federal government and through the U.S. culture for two decades or more.
In many entities, public and private, federal, state, and local those in power decree that no one will talk to journalists without notifying the PIO. Congressional offices even have the restrictions.
They are convenient for bosses. Under that oversight staff people are unlikely to talk about all the stuff that’s always there, outside of the official story.
Beyond that, PIOs often monitor the conversations and tell staff people what they may or may not discuss. Frequently agencies and offices delay contacts or block them altogether. An article on the Association of Health Care Journalists website, advising journalists about dealing with the Department of Health and Human Services, says, “Reporters rarely get to interview administration officials…”
Remember, those HHS people journalists can’t talk to are at the hub of information flow on what works and doesn’t with Obamacare, Medicare, and Medicaid. Or they know whether there are other perspectives on the numbers the agency publishes. Not to speak of the understanding about food and drugs, infectious disease, and medical and health policy research. Many of them could quickly stun us with the education they could give, if they were not gagged.
Another fact that gives pause is these restraints are just for journalists. There are no special rules or offices to stop staff people from having fluid communication with lobbyists, special interest groups, contractors, people with a lot of money, etc.
We wonder how former Obama officials feel now about their medications, given that FDA officials can’t talk without Trump controls.
But is it ever even rational to just believe staff people who are under such coercion?
Some journalists –- given our proclivity for believing we always get the story — profess to not be concerned about the PIO controls, saying people on the inside will leak. But do we have any sense of how often that happens? Do we have a 75-percent perspective on an entire agency, or a 2-percent? Nobody leaked when EPA staff people knew that kids in Flint were drinking lead in water or when CDC had sloppy practices in handling bad bugs.
Meantime, we have much more to worry about than just the gagged feds. In surveys sponsored by the Society of Professional Journalists, over half of political and general assignment reporters around the country said their interviews must be approved at least most of the time. Seventy-eight percent said the public is not getting the information it needs because of barriers imposed on reporting and 73 percent said the controls are getting tighter.
Education and science reporters cited similar controls.
Perhaps most chillingly, 56 percent of police reporters said they can never or rarely interview police officers without involving a PIO.
Almost 80 percent of police PIOs said they felt it was necessary to supervise or otherwise monitor interviews with police officers. Asked why, some PIOs said things like: “To ensure that the interviews stay within the parameters that we want.”
However, people in power characterize it, censorship is a moral monstrosity. It leaves people on the inside to control information with their own ideas and motivations. It debilitates all of us with a lack of understanding or, just as bad, skewed information. It takes away trust in our systems. It puts democracy itself in question.
Understandably in shock at President Trump’s attacks on the press, some feel these PIO controls are not a primary priority. Actually, this era makes it clearer than ever why we don’t need to leave these networks of controls to people in power.
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.
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.
Over the past year, Massachusetts State Police informed a local attorney it would cost him $2.7 million for public records related to data about the accuracy of breathalyzer tests. And the Bay State Examiner was told by the department they would have to pay a $710.50 fee to get a public records fee estimate, after the news site requested copies of internal affairs files for 49 state troopers.
Massachusetts: Once considered the birthplace of American civil discourse, its government over the past four decades has transformed the state into quite literally, one of the most secretive in the country- recently earning an F grade for public access to information by the Center for Public Integrity.
Two weeks ago, a bill passed through the state’s House of Representatives that would improve the situation and be the first update to the state’s public records laws in 40 years. And while there is hope the bill will be strengthened when it goes before the Senate next month, the current version does not address many of the deficiencies of the state’s broken system and in some cases, makes it worse.
A broken system
Government agencies in the state have the ability to charge reporters, advocates, and citizens massive fees to administer public records requests, which they say, covers the labor and printing costs of fulfilling requests. Often they charge high costs to have lawyers review and make redactions on each requested page and make printed copies of the records, even when the documents are available electronically.
Challenging high fees or public records denials in court can be expensive and can often take years. And filing an appeal with the Secretary of State is largely ineffective, allowing government agencies to push the boundaries when deciding what records should be public and how much it should cost to administer them.
“It is all too common when dealing with particular agencies and police departments [in Massachusetts] where I get really high fee estimates that stretch the imagination and look like alternative ways to deny a request,” Wallack said.
And last spring, Wallack filed FOIA requests to the state police and the Middlesex DA’s office asking for the state police report for the 2013 Watertown shootout involving the Boston Marathon bombers. In response, the Middlesex District Attorney’s office held a press conference about the report and posted it on their website. But days later, the state police sent him a letter denying his request.
“How much credibility do they have when that same report is on the web and the DA sent out a press release?” Wallack asked.
The state’s public records law doesn’t apply to the governor’s office, the judicial branch, or the state legislature at all, allowing them to operate in the dark. And the state agencies that are subject to the laws, sometimes take months or years to administer a request.
Recently, the Massachusetts State Police was fittingly named the most secretive publicly-funded government agency in the country, winning the Investigative Reporters and Editor’s prestigious 2015 Golden Padlock Award.
But the secrecy has expanded to police departments across the Commonwealth.
Last spring, Massachusetts Secretary of State William Galvin made a series of rulings that gave police greater power to withhold and censor arrest records. In 2014, former Governor Deval Patrick signed a law that prohibits police departments from releasing reports or logs with information relating to domestic violence and sex crimes.
And NEMLEC, a law enforcement council that coordinates regional police activity and has a SWAT team that deploys armed vehicles and conducts forced-entry raids on Massachusetts homes, have continuously dodged FOIA requests.
Lack of enforcement
Over the years, it has been difficult for journalists to fight public record denials or exuberant charges.
In fact, the state’s Attorney General’s office finally began enforcing the law for the first time in five years last June, months after Maura Healey was elected to the AG post. And in that one case, the AG’s office ordered the Fall River Police Department to lower the fee amount for a request. But the police department was never prosecuted.
Without the state’s help in enforcing the laws, reporters, citizens and advocates have been forced to go to the courts for help, which can be an expensive and time-consuming route.
Massachusetts is one of just three states that does not allow people who were found wrongly denied access to public records to recover attorneys’ fees. And such suits often take years before they are ever heard, Wallack said.
“[Government agencies] recognize if journalists are denied information for a long period of time, that means a story might not get written at all or it may no longer be timely,” Wallack said.
The fight for public records reform
While there is a major push by state lawmakers and advocacy groups to try and open up some of the blinders, such efforts have been met with large resistance from the lobbyist group the Massachusetts Municipal Association, which represents cities and towns across the state.
Two weeks ago, the state’s House of Representatives unanimously approved a public records reform bill that would reduce public records administration costs, require agencies and municipalities to assign a public access officer to handle requests, and allows judges to reimburse attorney fees and litigation costs to requesters who were unlawfully denied public records.
For instance, the existing law gives agencies 10 days to respond to FOIA requests while the new bill gives state agencies up to 60 days and local agencies up to 75 days, with the option to apply for an extension with the supervisor of records. However, Common Cause Massachusetts Executive Director Pam Wilmot said the courts have ruled that the 10 days isn’t really a hard deadline for agencies to respond to requests.
“Even though there is something on paper, there is no effect,” Wilmot said.
Another issue DigBoston points out, is judges would have discretion over whether to award attorneys’ fees to people who successfully sued agencies over wrongfully denied records. Wilmot said judges would need to produce a written explanation as to why they are withholding attorney’s fees, which she suspects they would prefer not to do unless there was a good reason for it.
And the bill makes it harder to simply file a lawsuit for denied public records requests. As it stands, requesters have an indefinite amount of time to file a lawsuit, whereas in the bill, they would have only 30 days.
The bill would also not make the public records law apply to the governor’s office, the judicial branch, or the state legislature. But, a late amendment to the bill was added that would create a study commission to look at the future inclusion of the three bodies and other ways the legislature can be more open and transparent.
The road ahead
Wilmot said the bill is not perfect, but it is a step in the right direction. She said the Senate is expected to take up the bill in January, which, as a whole is typically more friendly to public records reform. She said she is optimistic the Senate will strengthen the bill.
“The Senate has been consistently more pro-reform in a number of areas and more willing to push the envelope when it comes to transparency,” Wilmot said. “Will it be everything we want? Probably not. But I think it may be close.”
Once approved, the bill would go to a conference committee, which would likely pass some kind of compromise between the Senate and the House bills, she said.
As for Governor Charlie Baker, who would need to sign-off on the final bill, he set public records procedures for state agencies in July, in an effort to improve transparency. But Wilmot said his office is concerned about having strict cost controls for municipalities when administering public records due to existing laws barring the state from mandating municipalities to spend more money without giving them more money.
It’s encouraging that lawmakers are finally taking public records reform seriously. But real reform that addresses all of the issues is needed, not something that gives public officials avenues to avoid having to turn over records that belong to the taxpayers and hardworking journalists. Massachusetts has been governed in the dark for too long. It’s time to pull up the shades and bring in some sunshine.
Over and over again, I hear journalists complain about being rejected by government agencies when making Freedom of Information Act requests and how difficult it is to successfully file an appeal. So I’ve decided to consult with an expert.
Meet Michael Morisy, co-founder of the MuckRock, a collaborative news site that works with its users in filing Freedom of Information Requests and reports on the results. Since it was founded in 2010, MuckRock has filed almost 12,000 FOIA requests and published over 430,000 pages of government documents.
Here’s his advice:
What avenues can journalists take when their federal Freedom of Information Act request is rejected?
“It’s very easy to get discouraged because usually with FOIA requests you have waited months and months and then you get rejection and it’s pretty intimidating. I would encourage veteran FOIA requesters to appeal every single response they get back. Even if they get some documents, a lot of times people are pretty successful in appealing and saying I don’t think this is everything, keep looking.
I really encourage everybody to take advantage of the various appeal opportunities because you don’t need a lawyer, it’s not a deep understanding of sort-of legal procedure, you just need to send a letter and say ‘I appeal.’ That is a very accessible avenue for everybody. But it really depends on the type of rejection you see and what you are going after.”
What resources can journalists use to help them craft an appeal?
“At MuckRock, we have a bunch of appeals that people can browse through. We also have a question and answer section where if you have a specific rejection, it’s a free resource where everyone can talk. We also have a couple hundred FOIA experts who come in and provide question and answer responses. The RCFP (Reporters Committee for Freedom of Press) has a number of really good response guides and appeal templates.”
How often do appeals work?
“It varies a lot, but we’ve seen about 30 to 40 percent of the time an appeal is at least partially successful. It does add time to the process, but usually an agency can’t say we are going to give you nothing. This is where I think the appeals process is very useful because it tells the agency I’m serious about the request and you need to actually process it. Agencies love to say, ‘well this exemption applies so we are not going to give you the documents you want.’ But rarely does the exemption apply to everything and so by appealing, you can sort of go back to the agency and say, no. Even if parts of what I requested are exempt, not everything is exempt. So please release “separable” information. [Separable] is kind of the keywords I think has been helpful for people.
The first thing you should do is read the rejection letter because that almost always has where you need to send an appeal. Usually where you send the appeal is different than where you sent the original request.”
If you have a piece of advise for someone who may be getting discouraged during the appeal process, what would you tell them?
“I would tell people this is not a personal process. Maybe 90 percent of the time, the people receiving and processing these requests don’t really care about the outcome. They are just trying to do their job and so being kind, professional, but assertive is really important. This particularly applies for the appeal. So take and closely read why the request was rejected in the first place. Was it too vague? You can say, okay I only want documents between this date and this date. Or maybe, I only want emails from this person in March rather than a very broad request.
That is a problem, where many requests are just too broad. So on your appeal, you can kind of narrow your request and try and negotiate with the agency to try and figure out what you are looking for.”
FOIA from the “budget” perspective answers the following questions: How much are we spending on FOIA oversight? How does that compare to the costs of litigation? How much does the government spend on FOIA administration overall.
The FBI’s 83-page guide to Twitter shorthand. FMTYEWTK (Far More Than You Ever Wanted To Know).
A federal judge ruled that the Freedom of Information Act trumps an Internal Revenue Service policy for handling data requestsafter an advocacy group, Public.Resource.Org, filed a lawsuit against the IRS to make Form 990 returns available in a format that can be read by computers so the public can more easily search them for critical information about non-profit finances, governance and programs.
Tulsa World editorial calls for the legislature to strike down the “deliberative process” exemption. A judge recently ruled that Governor Mary Fallin was allowed to withhold 100 pages out of 51,000 concerning her state’s decision on the Affordable Care Act, aka Obamacare.
The “FOIA Warriors” (Jason Leopold and Ryan Shapiro) are at it again and have filed a lawsuit against the CIAcompelling the agency to release documents about its spying on Senate lawmakers who were tasked with investigating CIA torture.
David Schick is the summer 2014 Pulliam/Kilgore Freedom of Information intern for SPJ, reporting and researching public records and FOI issues. Contact him at firstname.lastname@example.org or interact on Twitter: @davidcschick