Have you ever been denied a public record? Or worse, has your request been ignored?
Student journalists at Indiana University dealt with those frustrations this past spring when they put 90 county agencies to the test by asking for digital access to public records. The students found that more than half of the agencies failed to comply with basic requests. One-third never even responded.
Assistant professor Gerry Lanosga mentored the students and said the project showed them the challenges many reporters face when asking for records.
Lanosga knows the struggle well. In his nearly two decades as a journalist, he fought for public records and won numerous awards for his reporting, including the Freedom of Information medal from Investigative Reporters and Editors. He also serves as president of the Indiana Coalition for Open Government.
I asked Lanosga what advice he has for journalists, and he shared his top 10 tips for getting public records:
- Know the law
Most important, know the law, chapter and verse. You should read through your state’s public records law on a regular basis and highlight particularly important sections. It’s vital that you know these laws as well as or better than the public officials with whom you’ll be dealing. And don’t ignore preambles or statements of legislative intent. Those can be more powerful than specific provisions. In Indiana, for instance, the Access to Public Records Act states that the law is to be read and interpreted liberally. That provides a strong argument for officials to do everything they can to make information public rather than keep it hidden.
- Don’t start off with guns blazing
Even though you may know the law well enough to use it as a cudgel, don’t start off with guns blazing. Simply ask for the record; there are officials who know their obligations and will readily comply. So don’t immediately whip out a copy of the law and beat a clerk over the head with it. Try this: Instead of sending an email requesting a record, go to the agency’s offices and ask to look at it. Often a personal visit is more effective than a virtual request.
- Make them do the work
Virtually every scrap of paper – even a sticky note or a napkin that an official scrawled on and saved – is a record that you should consider fair game for the asking. Don’t imagine the reasons why officials might not release a record – make them do the work and tell you why they think they are allowed to withhold it. Many state laws require officials to provide specific statutory justifications for their decisions to deny records requests.
- Check online first
Remember to check online first so you don’t bother an agency with a request for something that’s already available. But also keep in mind that what’s online is just a fraction of the information government agencies generate. While this area is constantly improving, online records are carefully selected and are often incomplete. A good skill is to think about what is not there.
- Get the forms and databases
There is merit to making a narrow request for a record when you know what you’re looking for, but fishing expeditions are also okay, because no one ever caught a fish without first going on a fishing trip. Casting a wide net makes some officials angry, but you are not required to know what’s in a record to ask for it. Pro tip: ask for a list of an agency’s forms and databases – that’s a public record! Then ask for a full set of one that sounds interesting but hasn’t ever been requested. You might find nothing at all newsworthy. Or you might stumble across the biggest story of your career.
- Ask for it anyway
Even if you think a record might be exempt from disclosure under the statute, go ahead and ask for it. Sometimes officials have discretion to release a record, and you might just get it. If there is a statutory provision for discretionary release, make a strong argument based on the public importance of the information.
- Don’t take ‘no’ for an answer
If an agency refuses to give you a record, don’t just take no for an answer. Push for a specific legal justification for the denial. And then don’t be afraid to go over someone’s head. A first step could be an informal approach to an agency head or a mayor, for instance. Beyond that, records laws typically specify a process for formally appealing an initial denial, so make sure you know the rules and then use them when warranted.
- Be skeptical
Be especially skeptical toward blanket denials – when agencies make broad claims of confidentiality in refusing to release records. Many state records laws (as well as the federal Freedom of Information Act) prohibit agencies from withholding entire documents just because a portion of the document is confidential. Rather, they must remove or redact the confidential portions (noting the material that has been redacted and the statutory reason for doing so) and then release the rest of the document. Redaction can be annoying, but sometimes you can use it to your advantage. An example: school disciplinary records. Citing the Family Educational Rights and Privacy Act (FERPA), many schools will simply refuse to provide any records pertaining to student disciplinary cases. You won’t win an argument to get the full records, but you can request that student identifying information be removed so that you can at least view the narratives, for instance.
- Write about it
There is power in journalistic storytelling; don’t be afraid to use it to pressure an uncooperative official or at least to shine light on unwarranted government secrecy. Consider an agency’s lack of openness about a subject to be as central to your story as the main subject. Publicizing a refusal to release public records sometimes provides just the right incentive to a recalcitrant agency. And if not, it is important for people to know about the government’s effort to keep them in the dark.
- Ask for help
Use the power of the crowd to help out. Organizations such as Society of Professional Journalists, Reporters Committee for Freedom of the Press and the National Freedom of Information Coalition (as well as its many state affiliates) provide excellent resources in the area of open government. And many journalists, lawyers and others interested in access regularly contribute to the NFOIC’s FOI-L listserv, run by Syracuse University; you can find directions for joining the listserv here: http://www.nfoic.org/foi-listserv.
What would you add to this list? Share your public records tips with me on Twitter @RecordsGeek. To learn more about Lanosga’s public records project with his students, visit Indiana University’s website.