Archive for the ‘public disclosure’ Category


18 Ways to Fight Censoring PIOs

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 kfoxhall@verizon.net.

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Hear It from a Journocriminal

photo_spj_fannin-focus-saga-panelists-left-to-right-spj-president-elect-dan-whisenhunt_fannin-focus-publisher-mark-thomason_dr-caorlyn-carlson

Let’s turn our attention to a real Georgia journalist who went to real jail for making a real public records request—really.

From the Atlanta-Journal Constitution’s July 1 piece:

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.

Photo above courtesy of Julius Suber.

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Journalist Handcuffed For Public Records Is Unacceptable

A journalist in Louisiana was taken away in handcuffs Wednesday while inquiring about the status of a state public records request submitted to the Town of White Castle in Louisiana.

Watch the video here.

You’ll see Chris Nakamoto, an anchor and investigative reporter for WBRZ-TV, the ABC affiliate in Baton Rouge, Louisiana, remaining calm throughout the ordeal.

The station has been asking questions about a salary increase the Mayor of White Castle, Jermarr Williams appears to have received. According to WBRZ reports, Williams was earning $20.31 an hour but in November 2015, records show he was earning $24.44.

Attempting to find out if the local city council voted to increase Williams’ salary and wanting information about mileage reimbursements, Nakamoto submitted a request under the Louisiana Public Records Act.

The Act, allows any member of the public to view public records unless the records are determined to be exempt.

While inquiring about the missing portion of his request Wednesday, a security guard asks the journalist to leave. Nakamoto stresses, he is inside a public building, on public property and will not step outside. Next, the security guard cuffs Nakamoto and takes him to the police department. Nakamoto was charged with a misdemeanor.

Thursday, WBRZ reported, the final portion of the public records request was fulfilled. More on that here.

An email to Williams was not immediately answered.

Prohibiting the public and journalists from obtaining information that they are entitled to is unacceptable. To take it a step further and arrest someone, who is inquiring and asking questions about a request is ridiculous. As we know obtaining information is sometimes hard enough, but to worry that you might be charged or arrested while inquiring about a request is annoying and unnecessary.

This information belongs to the public and should be handed over easily.

SPJ does not support or encourage the arrest of journalists and members of the public, who are trying to obtain public information. SPJ also does not support or encourage public agencies and individuals who fight the release of public information.

If you experience this at any time, we encourage you to let us know. You can tweet directly to me, @LWalsh or @SPJ_Tweets.

Lynn Walsh is President-Elect of SPJ. She also serves on the FOI and Ethics committees. She is currently leading the investigative team at KNSD in San Diego, California. She loves holding the powerful accountable and spends more time than she would like fighting for access to public information. Follow her on Twitter, @LWalsh or contact her via email: Lynn.K.Walsh@gmail.com.

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The secret state of Massachusetts

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.

Boston Globe Spotlight Team Investigative Reporter Todd Wallack said he is regularly charged tens- of- thousands or hundreds-of-thousands by Massachusetts government agencies for public records, which many states provide for free. On several occasions he has been flat-out denied records.

“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.

In Sept. 2014, Massachusetts State Police said a blogger could not obtain records relating to a 63-year-old murder case because it was still under investigation, even though the suspect was long dead.

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.

The bill was introduced by state Representative Peter V. Kocot and backed by a coalition of 40 watchdog, civil rights and journalism organizations including the American Civil Liberties Union of Massachusetts, Common Cause Massachusetts and SPJ’s New England pro chapter.

But, as DigBoston thoroughly reports, the bill doesn’t nearly go far enough and in some cases, makes the situation worse.

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.

Danielle McLean is a member of the Society’s Freedom of Information Committee and President of Society’s New England Pro Chapter.

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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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FOIA should be proactive, not reactive

I’ve noticed a few interesting improvements at various local governments across the country that are taking a more proactive approach to Freedom of Information Act requests — and I’m impressed.

Gainesville, Fla., recently opened its commissioners’ (as well as the mayor’s) emails through an online database. No need for a FOIA request, just click and search away. Ann Arbor, Mich.,— along with Greensboro, N.C. — now publishes its FOIA request log online (something every city should do). A new plan in Albuquerque, N.M., could give wider access to the state’s court records like PACER does at the federal level. Riverside, Calif., logged almost 16,000 views in one week on a new database it launched containing “information on city finances, police and fire calls, and access to thousands of other records.”

While these are to highlight just a few of the good examples, I think (and hope) that we will start to see a trend where local governments realize that relying on technology to assist them in handling public records requests will ultimately cut down on their cost, increase transparency and make for more satisfied citizens. Anything that public officials can do to utilize tools already in existence for open government purposes should be mandatory. Legislators create laws, in most cases, for our own good. We ought to insist the same logic be applied to state agencies and officials by forcing efficiency on them.

Freedom of information laws should first operate on the principle that all information should be readily available to the public at low or no cost, and then work backward (i.e. exemptions for security reasons, etc.).

On the federal level, a bipartisan bill known as the Freedom of Information Improvement Act was recently introduce in the Senate and would, among other things, restrict the use of FOIA’s “deliberative process” exemption — an overused and, in some cases, purposely misapplied exemption. Additionally, Andrew Becker, a reporter with the Center for Investigative Reporting, will serve on the federal FOIA Modernization Advisory Committee.

Local governments should be working with local news outlets and journalists in the same way. We have plenty of ideas on how they can improve their open records processes from low-cost fixes, to minor tech training for open records officers, to other solutions that would just require the use of free third-party tools (not being able to receive records via email should is ridiculous). Government agencies should not be waiting on complaints or lawsuits before deciding that their FOIA processes need updating.

Many of the basic documents that journalists often request — FOIA logs, emails, official memos or documentation — should be readily available and searchable online. There’s no good reason to keep the antiquated status quo.

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 – 7/11/14

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.

  • A CIA employee with the highest level of security clearance tried to get the agency to release info that was a decade old. They told him no, so he submitted a FOIA request and it “destroyed his entire career.”
  • The Center for Investigative Reporting is collecting ideas on how to improve the FOIA request process. Have ideas? Fill out the form here.
  • Two local activist groups file suit against a Florida county claiming that the commission skirted state open-government laws in allowing a controversial business park to go forward.
  • Which U.S. agencies sprung for the extra legroom provided by first class? MuckRock obtained Agency Premium Travel Reportswhich show how millions in upgrade fees were spent from 2009-2013.

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 – 6/27/14

Every week I’ll be doing a round up 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.

  • 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 requests after 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.
  • An Oklahoma County judge ruled that Gov. Mary Fallin can lawfully withhold public documents — relating to a decision on Obamacare  — which are covered by a “deliberative process” privilege.
  • 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 CIA compelling 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 dschick@spj.org or interact on Twitter: @davidcschick

 

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Must read FOI stories – 6/20/14

Every week I’ll be doing a round up 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.

  • In the above link about the document seizure by the U.S. Marshals, the American Civil Liberties Union filed an emergency motion to try and claw back those records, but the judge dismissed it.
  • FOIA request reveals brutal photos of seals, dolphins, whales, and other sea life that were caught in California commercial fishing boats that use drift gillnets — one mile-long mesh nets that are intended to catch swordfish.
  • The Kentucky Court of Appeals has affirmed a Circuit Court decision paving the way for public access to court records related to a public official’s job performance and the contentious relationship she had with the former president of a local community college.
  • An appeals court backs a man who made an anonymous public records request. The court ruled that the city of Greenacres, Fla., could not require the man to fill out a form before obtaining the documents.
  • St. Louis police records released per a judge’s order in public records lawsuit show how vice and other drug officers scalped the scalpersFifteen police officers were either suspended and demoted or otherwise disciplined for giving St. Louis Cardinals’ championship tickets seized from scalpers to friends and family.
  • The Miami Herald questions the Department of Children & Families’ “paperless” investigation into why there were originally no records — “no reports, memos, notes, emails or smoke signals” —  of the deaths of at least 30 children who were in DCF’s active case files.
  • The Federal Bureau of Prisons is being sued for FOIA violations by Prisology, a non-profit criminal justice reform organization. They claim that the FBOP has been non-compliant with the law, which has required for decades the Bureau post online substantial information about its day-to-day decision-making.

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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