Archive for the ‘FOI strategies and tips’ Category


14 Death Cab for Cutie Lyrics that Are Actually About FOI

Illustration by Michael Koretzky, SPJ Region 3 Director

In these dark times—coming out of an anti-access administration and right into a an anti-press administration—we journalists may benefit from brazenly turning our attention to less stark information.

This is one of those times.

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.

White hesitated.

“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.

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The flow of information: Reporting on water in the west

Abrahm Lustgarten, an energy and environment reporter at ProPublica, had a seat right on the battle lines of the Western Water Wars. Having previously lived in a small town on the Colorado River, he developed an awareness of the water scarcity problem, especially as the drought got worse.  After relocating to California, Lustgarten sought to bring his experience and long-standing interest in the topic to an investigative piece focused on the importance of water in the West.

Abrahm Lustgarten of Propublica covers energy, environment, and most recently, the water wars in the Western U.S.

Abrahm Lustgarten of ProPublica covers energy, environment, and most recently, the water wars in the Western U.S.

His reporting led to a nine-part series called “Killing the Colorado,” which ran from May to July this year, and focused not only on the Centennial state but on issues in Arizona, Nevada (Las Vegas), and California. Lustgarten delved into federal subsidies for cotton under the Farm Bill, pollution problems at the Navajo Generation Station,  and a controversial “use it or lose it” law further enabling the misuse of water. Reporting the story was not easy; Lustgarten spent more than a year and a half collecting and requesting information, and learning an extensive amount about the history and laws surrounding water crises. “It was an enormous amount of information, like getting an informal master’s degree,” Lustgarten said.

The story began with “Holy Crop,” an in-depth look into how federal subsidies of cotton under the Farm Bill leads to water shortages, as the crop needs billions of gallons of water to be grown. Lustgarten did “everything under the sun” to obtain public records for the piece, he said, drawing upon court documents, litigation cases, land ownership deeds, peer review studies, and economic reporting under the Farm Bill. It was the latter documents that posed the greatest challenge, Lustgarten said. He filed a FOIA request to solicit records from the U.S. Department of Agriculture from the Farm Bill and subsidy program, and waited more than 8 months to receive the information – and incomplete information at that.

lustgarten4

The USDA doesn’t release information that the public actually wants to know, said Lustgarten. His reports came back with generalized info about the number of subsidies per town and the amounts granted, but no information about the individuals who received the money. It was, all-in-all, a FOIA failure, according to Lustgarten. The most recent Farm Bill allowed USDA to withhold information, and there wasn’t enough time to take them to court to get the necessary documents. It’s not an unprecedented response from the USDA: the Farm Service Agency denies more FOIA requests than any other segment of the department (about ½ of the department’s total denials), basing most on confidential, personnel, and medical records exemptions.

Lustgarten also reached out to agencies on the state level, but ran into similar issues. In California, a state law is designed to protect utility customers, by keeping the identity of water users secret and collection info on irrigation water districts only, not the users (i.e. people and companies) who get the water. But the documents were not where the real story was. In this case, going into the field and engaging in face-to-face interviews proved most important.

Lustgarten mapped out 161,000 acres of cotton fields in Arizona, www.propublica.org

Lustgarten mapped out 161,000 acres of cotton fields in Arizona, www.propublica.org

“These stories are, in the end, analysis,” Lustgarten said. “You’ve got to do the deep reporting, and understand the issue or else your story will just be a superficial version. Ask yourself what you personally think about the story, and use that analysis rather than just direct information you are told.” For example, Lustgarten said, once he found out how water law tells farmers to use their resources in a way that is not always sustainable, he exercised his own judgement. He returned to his sources, and asked them, “If the law allowed you to use less water, would you?” Their affirmative answers added yet another layer of depth to the story.

The problem with analysis is that the readers don’t always agree with the journalist’s point of view. For the most part, Lustgarten’s story received great public feedback, with readers welcoming a new and different perspective and a solutions-based story. However, other readers found fault with Lustgarten’s analysis, some arguing cotton is less water-intensive than Lustgarten claimed, others pointing out discrepancies between the Arizona and California laws discussed in the story.

 

www.propublica.org

www.propublica.org

However, Lustgarten’s story did call attention to a growing problem, and invite discussion and debate in the community.  “Nothing is more important than water,” Lustgarten said, and finally this underappreciated resource, vital for the economy, environment, and human health, was brought into the spotlight. Here are couple methods Lustgarten used to make his story stand out.

Historical background

Lustgarten drew on the introduction and implementation of the Farm Bill over time to explain his story, and touched upon the history of the region’s 15-year-drought and environmental dry spell. He researched early Arizona township organizations and supply and demand of resources during wartime, alluding to Civil War practices and an 150-year-old report to Congress by John Wesley Powell.

Public documents

Lustgarten worked with over twenty groups, including state and federal agencies; from the California and Arizona Departments of Water Resources to the National Weather Service and Environmental Protection Agency. In some cases, the information took up to three years to obtain. The main story these documents told were about money, Lustgarten said, the irony of the government charging individuals and companies less to use more water. To figure out what documents are best suited for the story, Lustgarten said he relied on government experts or lawyers, asking them what kind of state and federal documents were kept related to his topic of interest, and what the specific title and code of the document would be. He talked with FOIA officers at EPA and USDA, trying to identify which records would be most beneficial.

One-on-one reporting

Lustgarten can’t stress the human factor of investigative reporting enough. His one-on-one encounters with farmers, government officials (like the “Water Witch” of Las Vegas) and other members of the community assign a human face to the numbers behind the documents. And the natural landscape has a kind of emotional quality as well, as photographer Michael Friberg brought out in a series “A Wonder in Decline: The Disappearing Lake Powell in Pictures.”

Lustgarten5

 

The short story

ProPublica compiled the main points from the series into a notecard-guide, shareable via social media. The shortened stories are posed as a solution-based Q&A, identifying the problems and using graphics, maps, and charts to illustrate statistics. The notecards are an informative way to draw in an audience with perhaps less time or knowledge to dedicate to the full series. Instead of cutting the reporting short, the “Need to Know” article caters to a larger audience who might not have followed the entire series. Most importantly, the notecards point to various solutions for the readers to deliberate amongst each other. And that is how these stories invite and inspire change.

Have you dealt with drought or reported on the water wars? Email amayrianne@spj.org or tweet @amayrianne about your experience.

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Judging the Freedom of Information Act in environmental court

One misstep, one decision, one instant can unleash consequences that last a lifetime. Consider April 20, 2010, when the Deepwater Horizon oil rig explosion created an environmental catastrophe in the Gulf of Mexico, the fallout from which is still making news. While the first reports were made from the coast, the story has now moved into the courtroom.

Headlines scream breaking environmental news when an oil tanker or truck has a major spill, when a factory is found to be releasing toxic chemicals, or when a wildlife trafficker is caught and arrested (remember the man who tried to smuggle parrots in water bottles?) But what happens after the fact is sometimes overlooked. The court cases, the cash settlements, and the criminal punishments are as interesting as the original stories, and the Environment and Natural Resources Division (ENRD) of the Department of Justice makes reporting on them possible.

ENRD handles cases dealing with civil and criminal statutes related to the Clean Air Act, Clean Water Act, Superfund, and other lesser known environmental laws. It also handles conflicts over Native American rights and eminent domain actions to obtain private land for federal ownership. The Division is split into several categories, including Prevention and Cleanup of Pollution, Environmental Challenges to Federal Programs and Activities, Stewardship of Public Lands and Natural Resources, Property Acquisition for Federal Needs, Wildlife Protection, Indian Rights and Claims, and Appellate and Policy Work. The department is split into ten geographic sections nationwide, and is currently managing 7,000 active cases in state and territorial courts.

court-quote

I personally love looking into court proceedings and digging into legal issues. But there are a few reasons why it’s not attractive to everyone. For one, it takes an incredible amount of patience. The processing time between an original formal complaint and the final decision (then appeals, sentencing or settlement, etc) is months at best, never-ending at worst. During an ongoing case, lawyers, judges, and witnesses fall silent. And the best cases involving big-name companies will likely be settled in private behind closed doors, where confidentiality agreements and sealed documents are no match for FOIA. Of the nine FOIA exemptions, at least five can be used to block a  request for information that might come out during a court proceeding: including company trade secrets, witness medical records, law enforcement information, and internal agency personnel rules and practices. Finally, few people enjoy reading through the hundreds of pages of legal jargon that may accompany a case file.

One way to skirt this is to visit ENRD’s online press room, where releases include name of offender, prosecuting agency, details of the crime, and final decision and sentencing. In the last month, ENRD has published the outcomes of BP civil claim settlements, as well as environmental crimes committed by a Norwegian shipping company and an order to reduce emissions at a New Mexico power plant.

However, the press releases alone don’t give journalists a chance to dig deeper. It’s better to get your hands on court documents and sometimes, this can even be done without using FOIA. The Department of Justice puts out documents called “proactive disclosures” under subsection (a) 2 of FOIA, which are posted online automatically without any request from the public, and listed in the FOIA library. This includes final opinions, agency policy statements, FOIA request records, and certain administration staff manuals. Proposed consent decrees awaiting public comment are also available through the site and notices published in the Federal Register. Eleven cases are currently open for public comment, including U.S. v. District of Columbia Water and Sewer Authority and U.S. v. Alabama Power Co. Frequently requested records, final opinions and orders, and yearly summaries of litigation accomplishments dating back from 2004, can be found on the Selected Publications site (although no opinions are currently listed).  However, that’s not to say all information is readily available.

FOIA @ ENRD

If you do need to file a FOIA request with ENRD, what can you expect? The Justice department handles upward of 60,000 requests per year, but only 70 to 80 of those fall under the Environmental and Natural Resources category. The small number of requests means processing time is slightly quicker than the average for DOJ requests; about 30 days for simple requests, a year for complex, and 10 days for expedited requests. Only 6 ENRD requests were pending at the end of 2014, despite the division having only two full-time FOIA employees.

court-foia

ENRD has traditionally granted 30% of FOIA requests in full, and given partial grants in another 30%; consistent with the DOJ response overall. Only a small portion (generally less than 5 cases) are denied based on exemptions, while most are denied listing the reason as “no records.” Denials made last year were based on exemption 3, citing 5 U.S.C. § 574 and 28 U.S.C. § 651, and withholding information about dispute resolution communications and confidential mediation documents.

To file an ENRD open records request, contact Sarah Lu, FOIARouting.enrd@usdoj.gov.

Decreasing Wildlife Trafficking, Increasing Web Traffic

In the past few years, a joint DOJ task force has been focusing on wildlife trafficking cases, and publishing summaries of the cases in a new online database. I find this particularly interesting, not only because some of these stories can involve off-beat characters (i.e. water-bottle bird man), but because illegal ivory/rhino horn/shark fin trading are big problems in developing countries. And it’s not easy to get a look into the black market. More info about each case can be found in the FOIA library or by a records request, including a case caption or name, civil action number, judicial district, and date or year of filing.

WILDLIFE TRAFFICKING PROSECUTIONS
BLACK MARKET TRADE IN RHINOCEROS HORN ILLEGALLY IMPORTED PROTECTED BLACK CORAL
ILLEGAL IMPORTATION OF SOUTH AFRICAN LEOPARD HIDES AND SKULLS AFRICAN ELEPHANT IVORY SMUGGLING
ILLEGAL IMPORTATION OF ENDANGERED SPECIES NARWWHAL TUSKS AND TEETH
SAFEGUARDING PROTECTED SPECIES

Final note: In addition to the DOJ, there are several other sites that keep searchable court records, although access might require a paid subscription. A few of the most frequently used sites are:.

  • Public Access to Electronic Court Records (PACER) 
    • PACER is a national database for federal cases from U.S. district, appellate, and bankruptcy courts. You can search by party involved, by court locale, or with the case locator tool. Documents are available immediately after being electronically filed. PACER requires its members to register for an account, and may charge up to $3.00 for a document. The downsides are that some personal identification information, like name and address, are removed before the record becomes public, and that there are no pre-2004 criminal case documents.
  • Lexis Nexis
    • Lexis Nexis is another pay-to-use service, but searches also include documents such as newspaper articles and company information related to a specific query. There is a professionals option, which contains documents, dockets, and litigation histories, but users must have a subscription to access. On the other hand, there is Lexis Nexis Academic, which is free, and can search cases by specific citation or parties involved. I’ve usually found this strategy to be hit-or-miss when it comes to how much information is provided, but on the plus side, it’s free.
  • Free Law Online
    • This is an incredibly comprehensive and helpful site put out by the Gallagher Law Library at the University of Washington. It contains a list of databases including laws, bills, court opinions on the federal and state levels (not just Washington state); there are links for each provided by the National Center for State Courts and American Libraries Association. The site also gives suggestions for online law reporters and digests, and publishes a legal research guide for non-lawyers.

How would you judge your Department of Justice or court stories experience? Share your thoughts by contacting amayrianne@gmail.com or tweeting @amayrianne.

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Guilty by Omission: Tristram Korten and FCIR Investigate What Florida’s DEP Leaves Out

It started off as a passing complaint from a former contractor with the Florida Department of Environmental Protection; the word “climate change” was taboo. The contractor had been hired to write educational fact sheets about coral reefs, he told Tristram Korten, editor at the Florida Center for Investigative Reporting.  But every time he referenced climate change, he was told to remove or alter the phrase.

Korten knew if the tip turned out to be true, it would invite an interesting story. How could a state like Florida, rich in biodiversity and threatened by rising sea levels and extreme weather, be expected to protect its environment if a key agency could not address a major threat? Yet the whole story was based off a single source and as any journalist knows; that is simply not good enough. Korten needed more verification, but it would be a challenge. He’d have to prove a negative.

Did the Florida DEP really avoid the term “climate change?”

Korten and the FCIR’s investigation uncovered a major problem. Not only had the terms “climate change” and “global warming” dropped progressively out of public documents year after year, other agencies were boycotting the issue as well. It all seemed to coincide with the inauguration of new governor Rick Scott, who upon taking office in 2011, reorganized the DEP and appointed a new director.

Although there was no explicit order from Scott to the leaders of state agencies and Scott himself denied the claim, the findings kicked off an investigation that is still ongoing. Korten has reported omissions at the Department of Transportation, the South Florida Water Management District, and the Florida Department of Health.

How did he do it? In this case, there was no specific document to request, and no specific law to cite. Government officials refused to grant interviews; instead, Korten received short, dismissive email replies like “DEP does not have a policy on this.” Employees at state agencies were reluctant to talk, or insisted on remaining anonymous, for fear of losing their jobs.

Here are the tools and techniques Korten used to deal with those issues.

An email search. After filing a public records search for the information, Korten and his team employed a tightly controlled email search to look for explicit mentions of communications policies between agencies, or from agency leaders to employees. But the email search was kind of a needle-in-a-haystack approach, said Korten. He didn’t want to spend too much time on a fishing expedition through thousands of emails. However, his search did turn up one piece of evidence, a 2014 email from the Coastal office’s external affairs administrator to a regional administrator, telling him to avoid claiming “climate change” as a cause when he appeared in a National Geographic/Audubon documentary about sea-level rise. If using this approach, Korten advises journalists to request communications in their native electronic format to preserve the original text.

 

April 2014 email exchange between Florida DEP employees Michael Shirley, a regional administrator, and  Pamela King Phillips, the coastal office’s external affairs administrator. Story by Tristram Korten and fcir.org.

April 2014 email exchange between Florida DEP employees Michael Shirley, a regional administrator, and
Pamela King Phillips, the coastal office’s external affairs administrator. Story by Tristram Korten and fcir.org.

Linked In: Linked In is a great tool for finding current and former employees with various agencies. Because many current employees didn’t want to go on record for this story, Korten relied on finding former employees with valuable insight but no fear of retaliation. The best parts about this social media tool are being able to search by dates employed, and to see connections related to you or to other sources. Many ex-employees still balk at going on the record, however. Journalists can find and contact academics, contractors, lobbyists, and scientists with connections at this agency for more honest insight.

korten2

Linked In can be an invaluable tool in locating and connecting with sources.

Annual Publications and Reports. Korten and his team obtained the yearly DEP reports from 2010 (the year before Scott took office) up until 2015. This was an easy and convenient way to analyze the department’s priorities over time; as most agencies post their annual reports online for the general public. And there’s a simple technology that makes sifting through a hundred pages of pdf document feasible in minutes: the Ctrl + F (or find) function. Korten and his team ran a keyword analysis of PDF files on DEP’s public website — which included reports, agendas, correspondence and other communications. The result was a noticeable difference over the years, 209 instances in 20 documents in 2010 declined to only 34 occurrences in 2014. And Korten said most of the 2014 instances were merely references to older documents. Korten also suggests getting original drafts of the reports, if freedom of information laws allow. This way, you can analyze what edits were made, including erroneous omissions or rewordings.

Number of "climate change" references in Florida DEP reports, data collected by fcir.org

Number of “climate change” references in Florida DEP reports, data collected by fcir.org

Interviews, interviews, interviews. It’s crucial to attempt to get both sides of the story, even if one side refuses to talk. In Korten’s case, the lack of response from agency officials spoke volumes. And every example of censorship provided by an ex-employee served to strengthen the original tip. Korten said most of his networking took place in the state capital, Tallahassee, right at the heart of the government activity.

What’s next?

Korten is most anxious to see how his story and investigation will lead to the reintroduction of “climate change” into the public sphere. He wonders if the “ban” has impaired scientists’ and officials’ ability to carry out their jobs, and to what extent the former administration’s initiatives and laws have been dismantled. He’s hopeful for the future, now that the problem has been exposed.

“The response from inside the DEP was that people, many of whom were scientists, were frustrated with this taboo,” he said. “It’s going to be hard to put that restriction back on them.”

Ashley Mayrianne Jones, SPJ’s summer 2015 Pulliam/Kilgore Fellow, focuses on utilizing FOIA and open government data to improve investigative environmental reporting. Follow her blog for the latest tips, tricks and news updates. Email Ashley or tweet @amayrianne.

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Are we out of the woods yet? The FOIA fight with the U.S. Forest Service

Nature-lover or not, almost every child in America can recognize Smokey the Bear, the iconic ursine emblem of the U.S. Forest Service. You’d be hard-pressed to find someone who hasn’t heard of efforts to recycle paper, or to prevent wildfires. When it comes to educational material and campaigning — things the Forest Service wants the public to know — communication is free-flowing. But it isn’t always that easy with the USFS; in fact, they are one of the most secretive agencies environmental reporters will encounter.

The U.S. Forest Service, an agency within the U.S. Department of Agriculture, oversees 193 million acres of forest, grasslands, wetlands, and lakes, including private, public and tribal lands. The agency, led by Chief Tom Tidwell, is organized into 9 regions, each with its own FOIA contact.  The USFS is responsible for preventing and responding to forest fires, managing over 1,000 campgrounds, and conducting research on ecosystems and climate change. It seems like there shouldn’t be a problem requesting documents and data related to these topics; as past SPJ President and current FOI Committee Chairman David Cuillier put it, the USFS doesn’t exactly protect national security secrets. But for some reason, the agency has been shutting the media out, forming a rift between scientists and journalists.

Regional Offices of the US Forest Service, http://www.fs.fed.us/

Regional Offices of the US Forest Service, http://www.fs.fed.us/

The USFS’s recent failure to provide material pivotal in journalist Rhiannon Fionn’s investigation of drinking water contaminants led to the agency being ‘awarded’SPJ’s 2014 Black Hole Award. Fionn told SPJ that she attempted to interview an expert USFS scientist for her story over the course of a year, but was repeatedly redirected to public information officials and eventually told she could only do a scripted interview, which would be reviewed by the Office of Ethics in Washington D.C. Fionn refused, calling the agency’s behavior overt censorship and a threat to the public’s right to know.

Email correspondence between journalist Rhiannon Fionn and USFS scientist Dr. Dennis Lemly, as published in Coal Ash Chronicles.

Email correspondence between journalist Rhiannon Fionn and USFS scientist Dr. Dennis Lemly, as published in Coal Ash Chronicles.

 

 

 

 

 

 

 

 

 

 

 

 

The problem is, Fionn is not the only journalist who has encountered this roadblock. Four years earlier, Society of Environmental Journalists member Christy George shared a similar experience. As George was sitting down to interview a USFS scientist from Oregon, he received a phone call from the head communications official in D.C., ordering him to end the interview. There was never any explanation, George says, even though she had requested the interview days earlier and gotten it pre-approved by his supervisors. Read about her experience here.

Photographers, videographers, and documentarians were further threatened by imprecise wording on a set of rules from 2014 that would require a $1,500 permit for shooting projects on National Forest Wilderness land. Although aimed at commercial companies, journalists and other media groups feared for their First Amendment rights and protested for a specific exclusion. Chief Tidwell sent out a memo to agency leaders reaffirming journalism as a public service and giving the green light for news coverage “including, but not limited to breaking news, b-roll, feature news, news documentaries, long-form pieces, background, blogs, and any other act that could be considered related to news-gathering.” Encouraging, but the real issue is the weak and ineffective media policies that make this kind of miscommunication possible.

The Center for Science and Democracy agreed in their 2015 Government Transparency report , shaming the Department of Agriculture as a whole with C- in media policy, and a D in social media.  The USDA has not updated its general communications policy since 2003, the report says, and falls short of providing access to drafts and revisions, the explicit right of last review, and whistle-blower protection. “‘Loose lips sink ships’ appears to be management’s motivation.” — one anonymous USDA scientist says regarding the agency’s social media policy, which also stifles scientists’ rights to discuss research and hold personal views.

The Center for Science and Democracy's 2015 Report: Grading Government Transparency: Scientists' Freedom to Speak (and Tweet) at Federal Agencies, http://www.ucsusa.org

The Center for Science and Democracy’s 2015 Report: Grading Government Transparency: Scientists’ Freedom to Speak (and Tweet) at Federal Agencies, http://www.ucsusa.org

One doesn’t need to try too hard to find examples of Forest Service’s shortcomings. While the up-to-date budget performance information is explicitly listed right under the agency’s “about” tab, the other reports about regulations and policies were unavailable; the page listed as “under construction” when I attempted to access it earlier this week. As for the USFS FOIA site, it either has not been updated in a while, or all of the “frequently requested reports” are truly from 2008.

By no means does this suggest journalists should give up on requesting information from the Forest Service. But it helps to have some background information on the agency’s track record and to be prepared for common challenges faced in making a FOIA request. Here are some important takeaways from the U.S. Department of Justice’s Freedom of Information report.

– The USDA receives about 20,000 FOIA requests per year, 10 percent of which are for the Forest Service. In 2014, the Forest Service received 1,939 new requests. Of those 1,939 requests, 1,889 were processed. Yet only 825 (45%) were granted the full requested information, 601 (32%) were partially granted, and 248 (13%) were either withdrawn or referred to other agencies or departments.

– Reasons for denials: The most popular denial reason during 2014 was cited as “no records.” The most frequently cited FOIA exemption was Exemption 6, which deals with personal privacy interests. The Forest Service claimed that the information was protected because it dealt with ownership of historic and/or archaeological resources.

– Processing time: The average time to process a simple request is 27 days, whereas more complicated requests take about 50 days. Expedited requests are processed within 30 days (the average being 13 days).  Backlogs are common, the ten oldest outstanding requests are between 2 and 3 years old.

– Resources: From 2010 to 2013, the Forest Service maintained a staff of about 75 full-time FOIA employees. But in 2014, the number of staff  suddenly dropped to 25. Processing requests cost the agency anywhere between $2.5 and $3 million per year from 2010 to 2013, although litigation fees never surpassed $6,000. However, last year, $25,000 was spent on litigation, whereas only $70,000 was spent on processing requests.

– Record Keeping: The USDA adopted a new internal online database in 2011 to keep track of public records requests. This information is used to submit to the Department of Justice for their annual report and to record and determine the status of FOI requests. Anyone can submit a written request for information pertaining to themselves and their individual request.

The USFS FOIA Service Center can be contacted at 14 Independence Ave SW, Mailstop 1143, in Washington D.C., via fax to 202-649-1167, or via email to wo_foia@fs.fed.us.

Do you have a Forest Service experience to share? Tweet @amayrianne or email amayrianne@spj.org. 

http://www.fs.fed.us/

http://www.fs.fed.us/

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Know your hometown: Small stories make the biggest difference.

The majority of my posts this summer will focus on federal environmental agencies, laws and policies. However, for most journalists, we are far more likely to report local news: the pollution-producing factory that came to town, the sudden increase in bacteria in a nearby lake, or the decrease in funding for science programs at the city’s middle school.

The stories that hit us and our audience the hardest. The ones we remember.

I grew up in Merrimack, a moderately sized suburb in southern New Hampshire known for moose, maple syrup, and New England’s Anhueser-Busch brewery. I remember the first environmental story I heard about my hometown, even though it occurred more than a decade ago, when I was 12 and more concerned with reading Tiger Beat than the newspaper. As I think about the story now, I wonder how I would go about reporting it, now knowing the resources and information available.

Merrimack, NH

Merrimack, NH

The Scoop

In March 2004, a beaver dam on private land was mysteriously demolished. Within a week, four other dams, these on town-owned conservation land, were also destroyed.  The Merrimack police partnered with the New Hampshire Fish and Game Department to locate the suspect responsible for destroying the dams, a crime that carried a fine of $5,000. As a result of the lost dams, beavers abandoned the wetland area, the water level sank by four feet, and fish and bird populations were threatened. Environmental officials predicted it would take two years for the ecosystem to recover.

Read the original full story from the NH Business Review here.

While it’s not the hard-hitting news breakthrough that would shock a nation, my town reacted. I remember residents who lived near wetlands forming a makeshift neighborhood watch committee to prevent further damage to dams. Others got to work patching the dams to reverse the damage. School kids adopted the beaver as their favorite animal. People suddenly cared. The community came together and created an online forum (high-tech in those days!) to share updates until the suspect turned himself in.

American Beaver by blog.nwf.org

American Beaver by blog.nwf.org

Reporting Today

But what if this story had happened in 2015? How would I go about reporting it, who would I contact, what documents would I request, and what would my impact be? As an experiment (I am half-scientist, after all), I decided to see if I could recreate the story and retrace the journalists’ steps using public information available now.

Step 1: The Police Report

My first step in investigating this local crime begins with those first on the scene: police. Merrimack Police Department keeps a well-maintained website, which includes PDFs of daily call logs, up-to-date press releases, and even a map illustrating where each category of incident (vandalism, in the case of the beavers) incident occurs. A request for the suspect’s criminal record if convicted from the NH State Police Department may prove difficult, costly, and time-consuming, but could also make for an interesting story.

However, nothing outweighs speaking to the actual officers: Merrimack lists contact information for general inquiries, as well as emails for captains and lieutenants. As for the police report or the arrest record for the suspect, these require an in-person trip to the station and can be complicated by Fifth Amendment rights during an open investigation.

Step 2: The Law

So…the we called the police. What now? Destroying beaver dams sounds cruel, but is it illegal? A simple Google search (literally, “NH law beaver dams”) turns up the original wording of the official-sounding “TITLE XVIII FISH AND GAME CHAPTER 210 FUR-BEARING ANIMALS Beaver Section 210:9.” Past cases and violators can be found through the NH State Court’s new E-court Project, although the system was implemented only a few years ago and doesn’t include the 2004 case.

Step 3: Moving Up the Ladder

The law is regulated at the state level through the New Hampshire Fish and Game Department.  A quick glance through the Department’s website uncovers an interactive map that illustrates state-owned wildlife conservation areas and a copy of the state’s mandated wildlife action plan listing policies for land and resource management, as well as research and conservation plans for animals like beavers. The Law Enforcement Division’s mission statement is promising to those seeking information, citing an “obligation to respond to the increasing public demands in a timely and respectful manner. To be successful, the mission must be administered without prejudice, always mindful that in the execution of their duties they act not for themselves, but for the public. The enforcement division’s patrol map also names the particular official responsible for Merrimack (area 41).

Step 4: Follow Up and Impact

Don’t let the investigation stop here. A look into annual police reports or statistics from other towns or the state police can uncover patterns and elevate the story to a state or regional level. Or maybe there’s no larger meaning, but at least checking can add some extra practice in requesting and locating information.

Your Turn!

How would you report the story differently in your own hometown? Who else would you contact, or what other information would you seek? Have you encountered a particular office or agency  that was difficult to cooperate with? Share your own hometown story in the comments section here or email me or tweet @amayrianne.

Ashley Mayrianne Jones, SPJ’s summer 2015 Pulliam/Kilgore Fellow, focuses on utilizing FOIA and open government data to improve investigative environmental reporting. Follow her blog for the latest tips, tricks and news updates. Email Ashley or tweet @amayrianne.

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Ask an expert: How to appeal a FOIA rejection

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.”

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Must read FOI stories – 7/25/14

Every week I do a roundup of the freedom of information stories around the Web. If you have an FOI story you want to share, send me an email or tweet me.

  • The Electronic Privacy Information Center has sued the United States Customs and Border Protection to compel the agency to produce documents relating to a relatively new comprehensive intelligence database of people and cargo crossing the U.S. border.

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 dschick@spj.org or interact on Twitter: @davidcschick

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Must read FOI stories – 7/18/14

Every week I do a roundup of the freedom of information stories around the Web. If you have an FOI story you want to share, send me an email or tweet me.

Special congrats to the FOIA advocacy website MuckRock, they got a shout out from the Daily Show this week for one of their FOIA requests:

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 dschick@spj.org or interact on Twitter: @davidcschick

 

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Rise of the ‘FOIA terrorist’

Normally, I would just link to this type of piece in my weekly “must read” FOI story round up, but I wanted to draw extra attention to a recent article in Medium about Jason Leopold, the self-proclaimed “FOIA terrorist.”

The author, Jason Fagone, writes in his piece (one of the best long-form narrative stories I’ve read in a while) that he first learned of Jason Leopold through Twitter, as did I. Anyone following the #FOIA hashtag would be hard pressed to miss him. Many major stories broke as a direct result of his FOIA requests — The Abu Zubaydah Diaries.

… The military’s horrifyingly clinical description of how guards at Guantánamo are force-feeding prisoners on hunger strikes, and manuals describing how the Department of Homeland Security is monitoring Twitter for terrorist threats, and FBI records about the late investigative journalist Michael Hastings.

The story also recounts Leopold’s “dark past”: his struggles with substance abuse as well as his questionable ethics as a journalist at major news outlets. Having only been in the journalism world for three years, I was unaware of Leopold’s fall from journalism grace. But apparently after The New York Times’ David Carr wrote a story pointing out his mistakes in a major piece he published about Enron, Leopold thought his journalism career was over. Who wouldn’t?

One line that stuck out to me — when Leopold was explaining his questionable ethical decisions of bungling quotes, spelling mistakes, lying to sources about what was on and off the record:

“My whole thing was, I wanted to get at the truth by any means necessary,” he says.

I don’t know any journalists who couldn’t relate to that sentiment of wanting the truth that bad. Ethical decisions easily become clouded by those strong emotions. When you’re chasing down that big fish story, it’s hard not to get tunnel vision like Captain Ahab.

But he’s redeemed himself as far as I’m concerned.

Fagone writes, “Stories that praise Leopold’s FOIA scoops often refer to him not as a journalist but as an ‘activist.'”

I think that’s ridiculous. While the Freedom of Information Act is at the disposal of all people, no one utilizes it like a journalist (New hashtag? #FOIAlikeajournalist), or like Leopold does. And this is how he gets his stories now. No interviews. Just cold documents and hard facts.

Fagone writes:

The great thing about FOIA, for Leopold, was that it didn’t care about his past. It was just a law, an impersonal series of rules and procedures, inputs and outputs. There was hope in that.

Without giving away too many spoilers, one thing revealed is Leopold’s love for punk music, which makes sense. FOIA is the journalist’s version of a punk rock concert. The “in-your-face” attitude that comes with writing and submitting a FOIA request is akin to the thrill of being in a mosh pit, elbowing a drunk douchebag in the nose.

Above all, what I’m really happy to see is more FOIA advocacy. We could all benefit from having a Leopold in every newsroom.

On a final note, if Leopold reads this: Know that you’ve got at least one other FOIA soldier ready to do your bidding.

Mad props to Leopold, as well as Fagone and Medium, for publishing such an important story.

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 dschick@spj.org or interact on Twitter: @davidcschick

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