Posts Tagged ‘Freedom of Information’


Washington’s governor needs to use veto pen to make stand for transparency

As Yogi Berra would say, it’s déjà vu all over again.

A legislature has rushed through a bill curtailing the state’s public records act, waiving rules to minimize public comment and present the governor with a bill that has enough votes to override any veto, and members of the public are as mad as hell.

While that sounds like Utah’s infamous House Bill 477, which gutted the state’s Government Records Access and Management Act, this scenario actually played out in Washington state last week.

In response to a Thurston County Superior Court judge’s ruling that lawmakers are subject to the state’s Public Records Act, Senate Bill 6617 was introduced to nullify it.

The bill, sponsored by Democratic Senate Majority Leader Sharon Nelson and Republican Senate Minority Leader Mark Schoesler, the bill declares that the Legislature is not subject to the public records law.

While the bill does make some records public, such as lawmakers’ calendars and final actions in disciplinary procedures, it takes giant leaps backwards in transparency.

The bill renders the court battle over lawmakers’ records moot because it is retroactive back to 1889 when Washington became a state.

But wait, that’s not all.

If someone challenges a record denial by either the Senate Secretary or the Clerk of the House, the appeal can only be heard by one of two legislative committees, and the committee’s ruling is final and cannot be challenged in court.

The bill takes effect as soon as it becomes law. That negates any attempt to overturn it at the ballot box.

If you think the bill is bad, the way it was passed in the Legislature was worse.

The bill was introduced late in the session, on Feb, 21, and was put up for a Senate vote without going through the usual committee process.

Lawmakers did agree to have a “work session” where stakeholders such as the Allied Daily Newspapers of Washington could weigh in against the bill, but that was not enough to stop this legislative juggernaut.

The bill passed 41-7 in the Senate on Feb. 23, and minutes later the House of Representatives voted 83-14 in favor of it.

Lawmakers defended the bill with pleas that they were protecting their constituents from having their tales of personal woes and problems exposed by prying reporters who request lawmakers email and correspondence.

Another argument that was brought up was that responding to public records requests would be too onerous for lawmakers and their support staff.

Plus, they argued that the state’s judicial branch is exempt from the Public Records Act, so why shouldn’t they.

But as Toby Nixon, president of the Washington Coalition for Open Government, and Allied Daily Newspapers’ Executive Director Rowland Thompson point out, the judiciary’s exemption was worked out over a course of years, with open-government advocates at the table. And the system they came up with provides an independent review of any record denial.

The bill is now before Gov. Jay Inslee, who has until Thursday to either sign the bill, veto it or allow it to become law without his signature.

And Inslee’s getting a lot of calls to veto the bill. The Seattle Times reviewed more than 540 constituent emails it requested from Inslee’s office, and found that there were none in support of the bill. And several papers in the state, including the Times, the Yakima Herald-Republic, the Bellingham Herald and others, ran front-page editorials demanding Inslee veto the bill.

While Inslee is supportive of transparency in government, he has hinted that vetoing a bill supported by a veto-proof majority, would be futile.

No, it wouldn’t. It could stop this bill in its tracks, or at least make legislators take full responsibility for thumbing their noses at the public’s right to know.

Sure, the bill’s got more than enough votes to overturn a veto, but when the moment of truth comes, some lawmakers may question the justice of their cause when faced with overriding a veto that the public fully supports in an election year. Politicians know better than most people that discretion is the better part of valor.

And even if lawmakers stick to their guns and override the veto, Inslee will have shown the people that he values transparency, even when it is not convenient. And by doing so, he would force the Legislature to take full ownership of the bill. They were the ones who approved it, and they were the ones who made it become law, even though the public made it perfectly clear that they value transparency, just as they did when they enacted the Public Records Act through a referendum in the 1970s.

Donald W. Meyers, a reporter/multimedia journalist at the Yakima (Wash.) Herald-Republic, is a member of SPJ’s Freedom of Information Committee and is SPJ’s Region 10 Director

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.

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.

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.

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/

How to FOIA: Environmental Protection Agency

When an environmental story breaks, there’s one agency that always seems to get called for comment: the Environmental Protection Agency. “Environment” is in the name, after all. EPA handles between 9,000 and 12,000 Freedom of information requests each year, according to FOIA.gov, ranking it 15th among all government departments and federal agencies in amount of records requests. Their track record for processing and granting requests, when compared to other departments, isn’t half bad. It’s also not good. Out of over 12,600 total active FOIA requests in FY 2014, the EPA processed 10,130; or 80%. Processed doesn’t mean granted, however, and by the end of the calendar year, over 2,500 requests were still awaiting a decision.

Those aren’t the odds a reporter wants, but better than the 103,480 records sitting in backlog at the Department of Homeland Security or the 3,373-day-old request awaiting a decision at the Department of Defense.

http://www.foia.gov/data.html

http://www.foia.gov/data.html

 

Explore more FOIA stats here.

How does FOIA work at the EPA?

The EPA presumes government openness, its website claims, releasing national information and making discretionary decisions regarding state, private and possibly exempt requests. Filing a FOIA request is “neither complicated nor time-consuming,” the resource page reads. Experienced reporters would tell you it’s a false claim. Even though the agency promotes government transparency and provides several online resources, it remains one of the most difficult to contact or obtain information from, according to Christy George, former president of the Society of Environmental Journalists.

Like with other departments, FOIA requests must be made in writing, either through snail mail or FOIAonline. The agency has twenty days to respond, but the clock starts ticking only after the specific information to be requested has been identified and any fees paid. Journalists may be charged $0.15 per page for photocopying after the first 100 pages. The 20-day response period can be extended by fee waiver proceedings, appeals processes to the National FOIA Officer, or with “large-scale” projects that require information from multiple agencies.

Nine exemptions may exclude your information of interest from being released by any department.

  1. Classified national defense and foreign relations information.
  2. Internal agency rules and practices.
  3. Information that is prohibited from disclosure by another federal law.
  4. Trade secrets and other confidential business information.
  5. Inter-agency or intra-agency communications that are protected by legal privileges.
  6. Information involving matters of personal privacy (protected under the Privacy Act or containing sensitive personally identifiable information).
  7. Information compiled for law enforcement purposes, to the extent that the production of those records:
    1. Could reasonably be expected to interfere with enforcement proceedings.
    2. Would deprive a person of a right to a fair trial or an impartial adjudication.
    3. Could reasonably be expected to constitute an unwarranted invasion of personal privacy.
    4. Could reasonably be expected to disclose the identity of a confidential source.
    5. Would disclose techniques and procedures for law enforcement, investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions.
    6. Could reasonably be expected to endanger the life or physical safety of any individual.
  8. Information relating to the supervision of financial institutions.
  9. Geological information on wells.

Number nine seems problematic, as many stories analyzing oil wells and fracking would need to rely on this information. But a larger challenge, says journalist Michael Corey from the Center of Investigative Reporting, is getting through the “stone wall” of trade secrets and noncompliance of large industrial companies. Companies the EPA has the power to regulate, but not the power to expose.

Contacting the EPA

EPA is divided into ten regions, each with its own Regional Freedom of Information Officer. Contact information is listed on the EPA’s official website along with a map in case you don’t know your particular region’s number or officer.

Requests can also be made through EPA headquarters, and nearly 2,000 records are every year. Surprisingly, Regions 5 (IL, IN, MI, MN, OH, WI) and 2 (NJ, NY, PR, VI) are just as busy as headquarters, if not more so, but grant a higher percentage of requests per year. The general consensus among environmental reporters, says Inside Climate News reporter Lisa Song, is that regional staff are more helpful than EPA headquarters, which communicate almost completely by email and consistently shuttle interviews through public information officers rather than expert scientists and officials.

EPA FOIA requests by region, data from http://www.foia.gov/data.html.

EPA FOIA requests by region, data from http://www.foia.gov/data.html.

Find your region and contact office here.

Find the agency organization chart here.

What is the EPA doing to improve FOI?

Under new administrator Gina McCarthy, EPA is releasing an increasing amount of data online (see some cool resources below). According to the 2015 Chief FOIA Officer’s Report to the US Justice Department (required of all agencies), embracing digital information has led to the release of over 300,000 online records since 2012. National topics include: climate change,  lead, asbestos, and a Reduce, Reuse, Recycle initiative. EPA reported last year that only 67 FOIA requests were denied and the time for expedited processing was reduced to 6.8 days.

However, the digital side also has its pitfalls. Question 16 of the report asks, “Do your agency’s FOIA professionals use e-mail or other electronic means to communicate with requesters whenever feasible?” Yes, says the EPA; which for journalists, also means that mere email responses from public information staff often take the place of face-to-face interviews with knowledgeable scientists or officials.

Read the entire report here.

Resources

My Environment is very neat and personalized link to track air and water quality, pollution levels, energy use, and health information for a given state, city, or zip code. The app also offers comparisons to previous years and compiles the data into graphical form. The My Maps extension creates downloadable interactive maps. If you have time, be sure to click on the plus signs and “Learn more” links to find deeper information. For example, this map below displays the water quality in my hometown, and clicking on the little blue symbol reveals the name of the company responsible for the toxic releases: JCI Jones Chemicals (no relation to yours truly). The raw data is also available for download.

Merrimack NH water data from EPA MyMaps app.

Merrimack NH water data from EPA MyMaps app.

National Service Center for Environmental Publications (NSCEP). This online collection includes factsheets, research findings, and policy guidelines dating back to 1976. Documents can be downloaded for free or paper copies can be ordered if in stock and available. However only five documents can be ordered within a two-week time frame and fees might apply for requesting out-of-stock documents from the National Technical Information Service.

The Environmental Database Gateway. A metadata collection of information from geospatial and nongeospatial sources, linked to an information resource and web-based map viewer. Data can be found via a simple or advanced search and the “reuse” capability means  users can output and embed search content.

Developer CentralThis website features over forty pages of apps created by third-party web developers based on EPA data. Top apps include “Right to Know” and “EPA UV index.” Most apps include source codes, and the original datasets can be found on the “Data Showcase.”

Environmental Protection Agency Website. Explore the agency’s official site to find a list of their associated research facilities, laws and executive orders, and financial and budget information and history.

Report

Now that you have these resources, how will you use them in your next story? Tweet @amayrianne with your ideas.

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 at amayrianne@spj.org or tweet @amayrianne.

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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

 

FOI Daily Dose: South Carolina court rules public bodies cannot use First Amendment to evade FOIA

The South Carolina Supreme Court ruled July 17 that organizations supported by public funds cannot use the First Amendment to evade the state Freedom of Information Act, according to Greenville Online.

The opinion echoed a 1991 Supreme Court ruling when The Greenville News sought access to records of a University of South Carolina foundation, and the South Carolina Association of School Administrators (SCASA) claimed disclosing the information violated their First Amendment rights to free speech and free association.

The 1991 ruling said organizations supported in whole or in part by public funds are public bodies subject to the FOIA.

But in the most recent legal dispute, radio personality Rocky Disabato claimed SCASA violated the public records law by refusing to meet his request for information about its role in a high-profile lawsuit against then-Gov. Mark Sanford over federal stimulus funds, according to The State.

The SCASA said state FOIA does not apply to them because even though they engage in public advocacy and receive some public funding, they operate as a non-profit organization, and the FOIA infringes their rights to free speech and association.

A Richland County Circuit Court judge agreed with the administrators and ruled that even though SCASA is a public body, it is not required to comply with FOIA laws.

Even so, the Supreme Court reversed the decision on grounds that the FOIA fosters trust in government and prevents fraud and corruption, The State said.

The court explained that without requiring public bodies to be subject to public scrutiny, agencies could “push agendas through third-party groups without scrutiny,” Greenville Online reports.

The court wrote: “If public bodies were not subject to the FOIA, governmental bodies could subvert the FOIA by funneling state funds to non-profit corporations so that those corporations could act, outside the public’s view, as proxies for the state.”

Writing for the majority, Justice Kaye G. Hearn recognized the negative impact the state FOIA might have on SCASA’s rights, and the court left it up to a lower court to decide if the SCASA is, in fact, a public body.

The decision said the FOIA does not apply to private entities that receive public funds for “a specific purpose,” such as a childcare center or healthcare clinic, The State said. Keith R. Powell, one of the attorneys representing SCASA, explained to The State in an email:

“The majority decision today is that IF a private entity is found to be a ‘public body,’ then it must still comply with the FOIA. The issue of whether or not SCASA is a ‘public body’ has not even been begun yet, and would be the subject of the remainder of the lawsuit back down in the circuit court . . . . Importantly, the court implicitly rejected the plaintiffs’ arguments that merely receiving any payments from the government, and/or merely being given some role in a public advisory committee, would automatically make a body ‘public’ under the FOIA.”

Kara Hackett is SPJ’s Pulliam/Kilgore Freedom of Information intern, a freelance writer and a free press enthusiast. Contact her at khackett@spj.org or on Twitter: @KaraHackett.

Minnesota county takes ‘bold step’ to make free information free of charge

Board members of Minnesota’s Winona County agreed last week to make all government data free of charge in a “bold step toward true transparency,” according to the Winona Post.

The board plans to adopt a one-year policy to lift fees for copying data and then assess the system at the end of the trial year and adopt a permanent policy. They’re expected to vote on the policy in the coming weeks, the Post reported.

Currently, Minnesota statute 13.03 explains that all government data is considered public unless classified as private and citizens can “inspect” or view the data for free. But if they want copies of the data, the government may charge them the cost of “searching for and retrieving government data, including the cost of employee time, and for making, certifying, and electronically transmitting the copies of the data or the data,” according to the statute.

Depending on how many copies requesters need, some fees are as high as thousands of dollars, the Post said.

All of Minnesota’s 87 counties currently charge fees as high as thousands of dollars for some or all of the data they provide. Winona would be the first county to lift fees.

The consensus has been four months in the making since County Administrator Duane Herbert suggested adopting a “flat fee” or tax on public information in March. Commissioners rejected the policy for fear that it conflicted with Minnesota law statutes forbidding fees for information beyond the expense of copies and employee time to retrieve the data.

The Post wrote several articles pushing the new free information policy, and when board members heard community outcry supporting it, they agreed that public information belongs to the public, as county chairman and former radio news personality Wayne Valentine said.

Minnesota Newspaper Association Attorney Mark Anfinson applauded Winona County commissioners, calling their decision “a remarkable breakthrough that has statewide ramifications.”

“I think it’s extraordinary because it reflects one of the more positive features you can have with a government agency, and that’s willingness to experiment, to try things out, to see if there are possibilities that haven’t been thought of before — maybe better and new ways of dealing with a difficult issue can be discovered,” Anfinson told the Post. “It’s hard to really experiment in government, but once in a while people are bold enough to try.”

Kara Hackett is SPJ’s Pulliam/Kilgore Freedom of Information intern, a freelance writer and a free press enthusiast. Contact her at khackett@spj.org or on Twitter: @KaraHackett.

 

FOI Daily Dose: FOIA fines prompt change in Michigan; Washington city council tries private email trick; More public records controversy in California

Hefty FOIA fines prompt change in Michigan

Hefty fines for public records requests in Michigan rally support for the state’s House Bill 4001 aimed at limiting costs to 10 cents per page and eliminating the charge for on-sight inspection, according to the Oakland Press.

Residents and reporters are worried the state’s current fees for obtaining free information discourage the public from requesting records.

In Oakland Township, where the current cost is 25 cents per page plus labor, resident Marc Edwards racked up a nearly $2,500 bill for two FOIA requests with township officials. The bulk of the cost came from the 8,918 pages he requested in print, according to the Oakland Press.

House Bill 4001 was introduced Jan. 9 by Rep. Mike Shirkey. Along with lowering costs for the public, it raises fees from $500 to $5,000 for government agencies that delay or deny records requests. Government agencies would be allowed a 10-day extension, and after that, the cost of the request would drop 20 cents per day, the Press said.

Washington city council members discuss official business in private emails

Members of the Bainbridge Island City Council in Washington were caught discussing city business using private email accounts last week, and when the city asked them to turn over the emails pertaining to official business, some refused, according to the Bainbridge Island Review.

Discussing official business on private email accounts keeps information out of public reach and violates the city’s Manuel of City Governance adopted in 2010 that says council members “shall cease utilizing any private, public or proprietary email service other than the city’s, for the sending or receiving of any such emails that meet the definition of public records,” according to the Review.

More public records controversy in California

Although Gov. Jerry Brown vetoed legislation loosening requirements for meeting open records requests on June 27, he remains committed to relieving the state of its financial burden for reimbursing local governments when they meet records requests, according to The Associated Press.

The same afternoon Brown signed the state budget, lawmakers proposed constitutional amendment SCA3 to save the state government millions of dollars a year by requiring local agencies to pay for fulfilling the records requests they receive. It’s currently pending before the Senate, and it needs two-thirds support from both houses to be placed on a statewide ballot next year, the AP said.

But while Senate President Pro Tem Darrell Steinberg said the amendment is aimed at strengthening open-government laws and holding local governments accountable, the Oakland Tribune’s editorial board is skeptical it might go too far.

The Tribune fears the amendment requires local governments to comply with the exemption-ridden Public Records Act and Brown Act open-meeting law, giving both acts “greater legal weight.”

They also said the amendment allows the legislature and governor to change the laws and, hence, the constitution at any time without voter approval.

Kara Hackett is SPJ’s Pulliam/Kilgore Freedom of Information intern, a freelance writer and a free press enthusiast. Contact her at khackett@spj.org or on Twitter: @KaraHackett.

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