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One FOIA Request a Day

This post from guest writer Christopher Collins is part of Sunshine Week.
In the United States, a person ought to be able to obtain information from the federal government cheaply and quickly. It’s only fair — using our tax money, the government generates mountains of paper and electronic documents, so we should be able to get those records when we want them.

But it’s not always easy. The Freedom of Information Act, a law passed in 1966 that codifies our right to obtain government documents, isn’t perfect. And agency officials who are charged with ensuring compliance of the act aren’t perfect either. Reporters, researchers and other members of the public have shared horror stories aplenty regarding outrageous fees, years-long delays and outright refusals in response to requests for documents.

It’s enough to make you want to pull your hair out.

After leaving the daily newspaper business to pursue independent reporting this year, I decided to put FOIA to the test by filing one request each weekday and charting the government’s responses. I also wanted to make all information obtained through the project available to the public for free, even if it costs me a scoop.     

The project, titled One Freedom of Information Request a Day, was launched Jan. 9. So far, requests have been sent to agencies including the USDA, the EPA, the CDC, the Departments of Justice, Education and Homeland Security, the U.S. Trade Representative, the Pentagon and various branches of the military. A little more than two months in, I’ve seen signs of promise. But moreover, I’ve seen signs of trouble, such as:

  • Poor data management leading to exorbitant fees

  • Refusal of emailed requests; redirecting requests to a separate online FOIA portal

  • Coercive tactics to dissuade pursuit of FOIA

In the project’s most frustrating interaction yet, the Federal Aviation Administration estimated that complying with a request for airspace hazard notifications would cost $461,300 and would take five years to complete. The notifications, which are sent by the FAA to project developers when a proposed structure is judged to impede air traffic, are an important part of the work the FAA does. When I asked why access to the dataset is so expensive, an agency FOIA officer said that the requested documents are commingled with other, confidential documents, which means the records I want would have to be individually downloaded and saved.

Strangely, the FAA offered to set me up with its database contractor, who said it could supply me with the requested documents for the low, low price of $4,275. I declined.

Some agencies — most notably the FBI — have inexplicably stopped accepting emailed requests, insisting instead that requests be submitted via physical mail or fax. The agency did not announce this abrupt change in its FOIA policy until it was made public by a requester.

I had a similar experience when requesting documents from U.S. Customs and Border Protection regarding its detainment of people from Muslim-majority countries this year. The request was emailed to the agency’s general FOIA inbox, but an automated message sent later said the account was no longer accepting requests. Instead, I would need to submit the request through FOIAonline, it said. I asked a Department of Homeland Security official about this, and he said the change had occurred “a while ago.” A subsequent probe by the Reporters Committee for Freedom of the Press found the change was never publicly announced.

Additionally, an emailed request seeking emails sent from the White House to the General Services Administration was similarly refused, citing the FOIAonline filing system.

I’m trying not to prejudge FOIAonline, which acts as the records clearinghouse for select federal agencies. Perhaps a centralized system for receiving requests and sending responses will make it easier to get records. But by its very nature, the system takes away some level of control requesters once had over their own requests and gives it back to the government.

During the course of this project, other agencies have sought to have FOIA requests droppedor delayed. After the USDA’s Agricultural Research Service was caught in a scandal by ordering its scientists to stop speaking to the public this year, I filed a request for an administrator’s emails. In short order, an agency FOIA officer called and said the USDA would give me a few responsive documents but would like to place the request on hold until I discussed the matter with a spokesman. I declined, finding later that the agency was only releasing documents that had already been leaked or otherwise released to the public.

In another encounter, the EPA implied that because some records responsive to a request I filed for pesticide exposure assessments were already publicly available, it might be in my best interest to drop the request or sharply narrow it. Agency officials on a conference call were incredulous when I insisted that they produce a cost estimate for providing the records, which is provided for under FOIA.

But the project hasn’t been all roadblocks and redirection — so far, I’ve obtained documents from the USDA, U.S. Navy and the U.S. Postal Service. And though I’m confident I’ll have more curveballs thrown my way, hopefully this will be a worthwhile exercise in democracy. Let me know if you have any ideas for future requests or ideas on how to make this project better. I want your input! Send a message to collinsreports@gmail.com or DM me on Twitter @collins_reports.


Christopher Collins is an independent, investigative journalist based in Abilene, Texas. His work has appeared in USA TODAY and Military Times and has been carried by The Associated Press, various daily newspapers and online news publications.

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PIO Censorship in the Era of Trump

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.

Fifty-three journalism and open government groups wrote to President Obama asking him to lift the mandate that PIOs be notified of contacts and the related restrictions in federal agencies. We met with people in the White House in 2015 to leave that message for the President. A year ago we pleaded in an editorial that Obama not leave these constraints in place, given the authoritarian rhetoric on the campaign trail and the fact no one can know how these controls will be used in one year or 20 years.

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 kfoxhall@verizon.net.

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FBI Drops FOI-By-Email

 

The Daily Dot reported Monday, Feb. 6, that the FBI will stop taking Freedom of Information Act requests via email on March 1.

Your options will be to use a new eFOIPA portal on the agency’s website, send the FBI a fax or send a request by regular mail. (The “P” is for the Privacy Act. Dual-purpose, you see.)

The creation of a dedicated portal to handle requests of any sort should be a cause for celebrating. After all, a portal suggests something easy to use, customer-friendly and, most important, simple.

Unfortunately, the FBI portal is cumbersome, a little intrusive and not easily understood unless you have a lot of experience with the agency and the FOIA.

Monday’s Daily Dot report, and a later TechCrunch article, highlighted the FBI’s decision to stop accepting email FOI requests and reversion to fax and snail mail.

As Taylor Hatmaker put it on TechCrunch:

“In lieu of its popular email service, the FBI suggests sending a fax or snail mail, a procedural change that has more to do with obstructing the law than a dearth of resources.”

Exactly the thought that crossed more than a few journalists’ minds, I’m sure.

So, what was/is wrong with the FBI’s eFOIPA process?

For one thing, as SPJ FOI Committee member Jonathan Peters pointed out in a tweet, it has normal business hours: 4 a.m. to 10 p.m. As Jonathan asked: Why?

For another, the portal’s landing page contains a “terms of service” agreement. Until Tuesday, it noted that only certain types of requests would be handled through the online request system. All other requests would be handled by fax or paper.

Portal requests would not be accepted for agency emails and other documents. Requesters could submit only one request per day and one request per submission. The portal also limited requests to 3,000 characters.

All of those restrictions would seem to violate the intent and spirit of the FOIA. They also lend supporting evidence to those who believe the FBI is less interested in following the law and more invested in obstructing those who would use it.

The Daily Dot’s Andrew Couts and Dell Cameron reported Tuesday afternoon that the FBI was removing its restrictions and would accept all requests via the eFOIPA portal. The agency also said the portal would operate 24 hours a day.

But that still leaves the “terms of service” agreement, which you have to check in order to proceed with a request. Why? Why not just provide notes/warnings/what have you and let it go at that?

Once past the “terms of service,” the requester is greeted with a number of personal questions – address, phone number and a few others that seem unnecessary. In fact, the FBI said in a statement Tuesday that the phone number was only required during testing of the system.

Indeed, the agency told The Daily Dot that it’s had the portal under development for two years. It says on the landing page that the latest iteration is the second beta test, prior to the March 1 public release.

I suggest the FBI hold off and get a developer who understands what users want and need in a government-agency interface.

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Jailing of the Press

Big names like Amy Goodman may shout loudly enough that after soliciting national media’s attention, judges drop silly charges that critically challenge their freedom of the press. But not everyone has that kind of pull, and not everyone sees the law play in its favor.

Down in Dawson County, Ga., where less than 25,000 (mostly white) people live, committing acts of journalism can land you in jail.

Nydia Tisdale learned this after years of covering public meetings without any connection to a newspaper, just in fulfilling what she considers her calling: Citizen journalism.

SPJ Florida president, national SPJ Diversity Committee chair, and overall badass Dori Zinn has the story…


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 journalism

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.

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DOJ Should Improve Requirements For How Death In Police Custody Data Is Collected

The Deaths in Custody Reporting Act was signed into law in 2014, the U.S. Department of Justice is now proposing how it will mandate reporting requirements for law enforcement agencies across the country.

If someone dies in police custody, the public has a right to know.

It may sound simple, but news outlets and media investigations have shown that is not always the case.

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With “Fatal Force,” The Washington Post is tracking the number of people who have been shot and killed by police. The Guardian is also keeping track of these deaths with their project, “The Counted.”

Why are news organizations keeping track and becoming the go-to place for this information and data? Because current reporting is not sufficient. According to an FBI report, in 2014, only 224 of the more than 18,000 law enforcement agencies reported around 444 fatal police shootings to the FBI.

It is unacceptable for the government to rely on media organizations to provide this information to the public. While the organizations that have stepped up and gathered the data are doing it well, what happens if the funding for these projects ends? It is also risky. The media is gathering data from what it has available to them, which is limited information compared to what the government has access to and could require law enforcement agencies to provide.

Having tried to use the data law enforcement agencies voluntarily report to the Bureau of Justice Statistics, BJS, I know the frustration first hand. Sometimes you find data but sometimes you don’t. If you want to know how many people were shot and killed by law enforcement in a particular county, you may be forced to ask and then search through individual agencies records, compiling the data into your own database.

The Deaths in Custody Reporting Act, DICRA, was supposed to help fix this reporting issue, among other things. The U.S. Department of Justice has now proposed how it will implement DICRA and is accepting public comment on the proposal until October 3. Click here to read more and how to comment.

The proposal has a number of weaknesses though and in a letter, the Society of Professional Journalists and 66 other organizations are asking the DOJ to strengthen its proposal for how law enforcement agencies will be required to report data detailing the number and how individuals die while in police custody.

Some of the concerns outlined in the letter include:

  • A lack of consequences for not reporting accurate data, including detailing possible penalties for non-reporting or linking federal funding to reporting compliance
  • The indication that BJS will rely on publicly available information “open-source review,” including news reports, for the data collection
  • Lack of details on how federal law enforcement agencies will comply with DICRA

Click here to read the letter.

As mentioned above, some news organizations have made a commitment to tracking how many people are being shot and killed by law enforcement. While the work being done by these news organizations is detailed and well-researched, is this enough?

Shouldn’t the media and in turn the public be able to easily obtain data from the government about the individuals being killed by law enforcement, public employees, with salaries funded by tax dollars? Not to mention the fact that close to $4 billion in federal grants is awarded annually to local and state law enforcement agencies. Doesn’t this make what the agencies do, also the public’s businesses?

I think so and so does SPJ.

Do you agree? Let the DOJ know. Below are some ways to share your thoughts on social media.

  • Here are some deficiencies in @TheJusticeDept’s proposal for collecting data on deaths in police custody: http://bit.ly/2c0oqWo @spj_tweets
  • .@TheJusticeDept has a proposal for collecting data on deaths in police custody. Here’s why it must be strengthened: http://bit.ly/2c0oqWo
  • Gov. should provide journalists w/ #transparent data about deaths in police custody not other way around: http://bit.ly/2c0oqWo @spj_tweets

Lynn Walsh is the current President-Elect for SPJ. She manages and leads the #NBC7 Investigates team in San Diego. She loves holding the powerful accountable and spends more time than she would like fighting for access to public information. Follow her on Twitter, @LWalsh, or contact her via email: Lynn.K.Walsh@gmail.com.

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Florida agencies should release public records in Orlando shooting

Agencies in Florida refusing to release documents associated with the Pulse nightclub shooting in Orlando, should reconsider.

Media agencies have been requesting many documents under the Florida “Sunshine” law including 911 calls, the shooters employment documents when he served as a corrections officer and information about the shooters security guard license. The state has denied these requests saying they are part of an active investigation.

According to an article in the Miami Herald, a representative in the Florida Attorney Generals Office has said the documents should be released. Read the full article here.

Having worked in Florida and having used the state public record laws often, this is not the norm. These types of records are permitted to be released and in my experience were released regularly. The fact that state agencies are deciding now, after our country experienced its worst mass shooting to date, to decide not to release these records, that belong to the public, is disappointing.

Barbara Petersen with the Florida First Amendment Foundation said, “The records requested by the media are not active criminal investigative records; rather, these are records created before the investigation into the horrific events of Sunday morning in Orlando. In fact, many of the requested records were created years earlier and, once released, will, hopefully provide some understanding of the possible motivation of Omar Mateen, the shooter, and the response by law enforcement agencies. Many of the agencies are responding to such requests by saying, ask the FBI. The FBI does not have the authority to hijack Florida’s constitution.”

According to the Miami Herald, an attorney for the media organizations has written a letter to the City of Orlando, asking for the records to be released.

SPJ supports transparency and access to public records. I am disappointed to see these records withheld and ask the City of Orlando and other agencies to reconsider their decision to keep the public in the dark.

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State legislatures veer toward secrecy

Troubling legislation in four states would seriously undermine the public’s right to know and ability to hold government officials accountable.

Two of the bills — in Indiana and New Jersey — would restrict access to police body camera footage. Legislation in Florida would make it more difficult for citizens and the press to challenge improper government secrecy. And Massachusetts lawmakers are set to vote on a measure that, while aimed at improving the state’s public records law, could do the opposite.

Open government groups have raised concerns about each of the proposals.

Indiana: Police video recordings

A still of body camera footage from the Las Vegas Metropolitan Police Department captured in July 2015. The video recorded a confrontation between police and a man who fired shots at officers.

A still image of body camera footage from the Las Vegas Metropolitan Police Department captured in July 2015. The video recorded a confrontation between police officers and a man who fired shots at them.

The Indiana House of Representatives on Tuesday passed a bill that would impose numerous roadblocks on journalists and others who want to obtain police body camera and dash camera videos.

Police already have wide discretion to deny release of such recordings — decisions that can be difficult if not possible to challenge, according to the Hoosier State Press Association.

Under the legislation, House Bill 1019, only two classes of people would be entitled to inspect police video recordings: (1) those depicted in the videos, and (2) when a video shows the interior of a property, the owner of that property. Neither would be allowed to make copies of the recordings, but rather would only have a right to view them.

Anyone else, including reporters, would have to file a lawsuit to obtain a police video recording. Requesters would have to show that disclosure is in the public interest, does not create “significant risk of substantial harm to any person or to the general public,” and will not prejudice civil or criminal proceedings.

If a court orders release of a recording, police would be required to obscure a litany of depictions, such as acts of severe violence, anyone who is under 18 years of age, and crime victims and witnesses.

Requesters who prevail would not be entitled to get their attorney’s fees reimbursed.

The bill could also hamper newsgathering by requiring record requesters to know particular details of every video being requested. Requesters would have to provide the date and time of the activity that was recorded, where that activity occurred, and the name of at least one person who was “directly involved” in the activity but not in a law enforcement capacity.

The Hoosier State Press Association, Indiana Broadcasters Association and Radio Television Digital News Association are opposed to the legislation.

It now goes before the state Senate.

New Jersey: Police body camera footage, 911 records

Similarly, a New Jersey legislator has introduced a bill that would entirely exempt release of police body camera footage from the state’s public records law, along with audio recordings and transcripts of 911 calls.

The bill’s author, state Sen. Paul Sarlo, has said he might amend the legislation to allow for disclosure when police are involved in altercations.

Sarlo represents several municipalities that are being sued by the press for access to records about a 2014 incident in which police shot and killed a 23-year-old black man.

Florida: Reimbursement of attorney’s fees

A Florida bill would make it more difficult for the public and press to enforce the state’s public records law.

The legislation “would remove the requirement that government officials who intentionally violate the state’s public records law pay attorney’s fees when citizens take them to court,” according to the Tampa Bay Times.

Instead, the bill would make reimbursement discretionary, letting judges decide when plaintiffs who prevail in public-records lawsuits should have their attorney’s fees covered.

Many states have cost-shifting provisions similar to Florida’s current version, which often are the only way plaintiffs can afford to go to court.

The legislation advanced Tuesday in a state Senate committee; a state House of Representatives committee already signed off on a companion bill.

Massachusetts: Public records law reform needs reform

SPJNE President Danielle McLean and protesters in front of the Massachusetts State House during the Public Records Reform Rally on Jan. 21, 2016. Photo by Joyce Pellino Crane.

SPJNE President Danielle McLean and protesters in front of the Massachusetts State House during the Public Records Reform Rally on Jan. 21, 2016. Photo by Joyce Pellino Crane.

The Massachusetts Senate is expected to vote within the next few weeks on legislation aimed at improving the state’s public records law, but the proposal has numerous problems, according to Danielle McLean, president of SPJ New England and a member of SPJ’s national Freedom of Information Committee.

The measure, along with a companion House bill that passed late last year, seeks to limit some fees assessed to record requesters and provides for the possibility that plaintiffs who prevail in public-records lawsuits can have their legal expenses reimbursed. But as McLean points out, the legislation has serious problems:

  • It welcomes delays. The legislation would allow the government to wait more than two months to respond to record requests. Currently, officials are supposed to respond within 10 days, but the bill would expand that deadline to 60 days for state government and 75 days for local governments.
  • It restricts enforcement. The bill would require that public-records lawsuits be filed within 30 days of a denial being issued, a fairly narrow window to appeal. The legislation also does not mandate that plaintiffs who prevail will get their legal fees reimbursed; that decision would instead be up to a judge.
  • It fails to address gaping holes. The bill also does nothing to make the public records law apply to the governor, state Legislature or state court system, although it does authorize a study to explore that possibility.

McLean and other freedom of information advocates held a rally last week on the steps of the Massachusetts State House in Boston, calling on senators to amend the law so it requires faster responses to public records requests, provides stronger enforcement mechanisms and reduces fees charged to requesters.

Approximately 25 to 30 people participated in the rally, including journalists, activists and college students.

“During the rally, we had some awesome dialogue, made a lot of noise, and gained some good momentum for the cause,” McLean said.

Jonathan Anderson is chair of the Society’s Freedom of Information Committee.

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Show why FOI matters

Sept. 28 is kind of a big day for the concept of democracy.

Yes, Congress submitted the U.S. Constitution on this day in 1787 to states for ratification. We all know how that turned out.

But Sept. 28 also is important for another reason: It’s International Right to Know Day, a worldwide event aimed at promoting open government laws and highlighting why they matter. The day commemorates the anniversary of when freedom of information groups from around the globe formed an international coalition called the FOI Advocates Network, of which SPJ is a member.

The network turns 13 years old this year.

Despite that impressive achievement — and unlike ratification of the Constitution, a historical event — the story of the public’s right to know is still being written: Laws governing disclosure of government-held information change and evolve, and there is a constant tug of war over access to public records and proceedings at all levels of government.

Journalists play a key role in that story — we have an ethical duty to do so! — and International Right to Know Day is another opportunity to make a difference.

Here’s how:

  • On Monday, Sept. 28, journalists and FOI advocates can commemorate International Right to Know Day by showcasing the impact of open government laws on social media.
  • To that end, journalists should highlight stories made possible because of open government laws. Did a public records request reveal important information for a story? Did that story effect some kind of change? Did you successfully challenge improper government secrecy? If you answered yes to any of those questions, you have a social media post to share!
  • Use hash tags #FOISuccess and #IRTKD2015. On Twitter, the handle @FOIAnet also can be referenced.
  • Post stories on the FOIAnet Facebook, too.

Jonathan Anderson is chair of the Society’s Freedom of Information Committee.

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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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