To speed up ‘FOIA slowpokes,’ journalists mix praise and shame

When I was a reporter at a daily newspaper in Virginia, few things frustrated me more than slow responses to Freedom of Information Act requests. I’d put in my request and wait the allotted response time only to receive a handful of excuses. Sometimes, after weeks of nagging, I’d get the documents. Other times my request was strangled to death by red tape.

FOIA statistics are grim. According to MuckRock, a public records request service, about 27 percent of requests go unfulfilled in the first three months.

But when agencies dig in their heels, reporters often have limited options: take officials to court, wait them out, or encourage them to act using the power of the pen.

Recently I found the Vancouver Sun’s Chad Skelton using the latter.

Contenders for slowest FOI response time this year include @CityofVancouver @NVSD44 @VIUniversity and BC Safety Auth http://t.co/9Iq0f0HylD

— Chad Skelton (@chadskelton) January 22, 2014

On his blog, Skelton wrote in detail about his quest to get data from 110 public agencies for a public-sector salary database. Some responded on time. Others became candidates for “slowest government agency in B.C.” 

I asked Skelton to tell us more about his process. Here’s what he had to say.

Q: What prompted you to write about the FOI process?

A: Like many news organizations, we've struggled over when we should write a story about not getting information – and are wary of boring our readers with too many "inside baseball" stories about agencies obstructing our requests or delays involved in getting the information we're looking for.

Since I started blogging in 2007, though, I've found my blog the perfect outlet for this kind of "how the sausage is made" type of content. I think it's important to let readers know when agencies aren't being as transparent as they claim, and to celebrate those who do a good job.

But by having it on the blog, instead of in the paper or on our homepage, the information is there for the (few) people who are interested in it without taking up valuable real estate. In the past, I've used my blog to let readers know about our difficulties in getting information or an agency's attempts to spin the news. A well-placed tweet about the post – including the Twitter username of the agency you're writing about – also lets them knows their bad behaviour has been noticed.

You mentioned it can help speed up the response process. Do you have any examples?

@sarhutch Showing how the sausage is made has been very effective at getting agencies to respond more speedily.

— Chad Skelton (@chadskelton) January 23, 2014

We've been doing our public-sector salary database for five years now and it's difficult to make apples-to-apples comparisons as, frankly, this is the first year that I've methodically tracked response times. But taking a look at the dates on spreadsheet files from last year, I'd estimate that by late January in 2013, we had about a dozen agencies that still hadn't provided us with their salary data – and a couple took well into February to get it to us. This year, only one agency hasn't sent us their data as of Jan. 24. And the two agencies that were particularly bad getting their data to us last year both met the Act's 30-day deadline this time.

Did you get any response to the posts from your slowpoke agencies?

One (the City of Vancouver) actually apologized for the delay via email and voicemail and said they'll do better next year. I'm sure some aren't happy at being singled out but they haven't complained to me directly.

Do you have any advice for folks who want to use FOI shaming on their own agencies?

I think the key, to be frank, is not the shaming but the complimenting.

As I noted, I've been complaining about bad agencies on my blog for years. What really changed this year, I think, is that I also started complimenting the good ones, too. It actually started somewhat by accident. I was working on a big series about auto crime and called up the media relations folks at ICBC (our public insurer) asking them for access to some of their auto crime data. I thought they'd send me to the FOI department but, to my surprise and delight, they agreed to give me the data I wanted voluntarily, without forcing me to go through the FOI process. They were also really patient with all my follow-up data requests.

ICBC was so helpful that, at the end of a long post on my blog introducing the auto-crime series, I thanked them for being so cooperative and transparent. I was amazed at what a response I got from that simple thank you. An ICBC employee came up to me at a conference and said my blog post was passed around the agency and up the chain to the executives. And, ever since, ICBC has bent over backwards to help me on any story I'm working on. My motivation for thanking ICBC was that I thought it was the right thing to do. But it also turned out to be strategically wise, as well.

Similarly, while you noticed my recent "shaming" blog post for public-sector salaries, in December I also identified the 46 agencies that got me their salary data early. That post got tweeted around by several folks, including by the association for B.C. municipalities (UBCM) which singled out two cities that got me their data the absolute fastest – both of which were flattered by the attention. I think being an FOI coordinator is a pretty thankless job and you get a lot of grief from people who aren't happy with what you're doing. Giving those who are doing their job particularly well a pat on the back buys you a surprising amount of goodwill. And, again, I think it's the right thing to do.

 

Skelton’s experiences raise an interesting question. When it comes to “FOI slowpokes,” is it more effective to praise or embarrass? It’s easy to find examples of both.

Sara Gregory of the Student Press Law Center said the group’s executive director, Frank LoMonte, thought of the viral online Dog Shaming blog when creating its journalistic counterpart: FOIA Shaming.

“Frank and I were brainstorming ways to essentially call out the worst of the worst at refusing to turn over public records,” Gregory wrote in an email. “Access issues are one of the most common problems students call our legal hotline about, especially college student journalists. We thought that it just really shouldn't be that easy for schools to get away with denying requests for really routine, clearly public records.”

Gregory said the blog is a visual variation on the message SPLC attorneys already share with students: write about your experiences on news and editorial pages.

“I don't think the Tumblr has helped anyone get records, unfortunately, but several of the cases illustrated did end with the records being released (often only after a court order like at Ohio State and the University of Maryland),” Gregory wrote. “In these instances, we just wanted to make sure they were memorialized somewhere.”

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Fighting a FOIA battle? Check out IRE’s FOIA story pack. We have tipsheets and more to help you get an in-depth look at the ways journalists have fought for information, the obstacles they encountered along the way, and the ultimate success stories which show the power of the Freedom of Information Act. 

If a judge agrees with a court fact-finder, Gannett New Jersey could be getting $542,000 in legal fees stemming from a public records lawsuit.

Gannett filed suit in 2009 after several newspapers asked for municipal payroll records in an electronic format, not PDFs. In August 2012 the company won the “precedent-setting case.”

As for the legal fees, “The borough might have come out ahead if it had cut its losses in 2012, when Gannett first sought reimbursement of $495,491. As the borough continued to file motions, the media company’s legal fees continued to mount. By April 2013, Gannett had spent $561,544 on the case. Eventually, the total reached $704,435,” according to an article on MyCentralJersey.com, part of Gannett’s New Jersey Press Media.

Read the full story here.

WNYC today compiled a clever list of “18 ways Christie and his officials have blocked access to information.”

The release of the subpoenaed documents “exposed the Christie Administration's involvement in Bridgegate show how the Governor's Office has been keeping its decisions and expenditures quiet despite laws that require official business to be made public.”

The state secrets include everything from visitors at the governor’s mansion to State Police overtime data to taxpayer-funded attorneys representing Christie in abuse-of-power investigations.

A handful of lawsuits have already been filed over the exemptions and redactions. We’re looking forward to the stories that follow.

A federal appeals court has ruled that Argus Leader Media can seek government data on how much businesses take in from the food stamp program, the Sioux Falls, S.D. paper reported.

On Tuesday, the U.S. Court Appeals for the Eighth Circuit reversed a district court ruling and determined that a federal statute that created the food stamp program does not prohibit the USDA from disclosing the revenues businesses earn from it.

Last year Jonathan Ellis, of the Argus Leader, wrote about the paper’s lawsuit:

"By the start of 2011, we had assembled a national database that showed the explosive increase in businesses signing up to participate in the program over a five-year period. As the number of people in the program expanded, businesses were signing up to capture some of the revenue from food stamps, which now costs $80 billion a year.

I wanted to know how much each of those businesses made over the years, but the department denied my freedom of information request. I appealed. And waited. And waited. As winter gave way to spring, and spring gave way to summer, we heard nothing on the status of the appeal. Our attorney, Jon Arneson, started badgering USDA for a response. When we didn’t get one, we went to court."

Read Ellis’ full account here.

The Toronto Sun is appealing a decision by the City of Toronto to withhold hundreds of emails sent by staff members of beleaguered Mayor Rob Ford.

The paper requested copies of emails sent and received by Ford’s former senior staffers around the time the mayor’s crack video scandal broke last year.

From the Sun:

The city’s access and privacy division relied on 10 different clauses contained in access laws to sever the information from the request.

Those clauses were drawn from the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) and the City of Toronto Act and included correspondence with constituents and records subject to solicitor-client privilege.

“Records of a political nature belonging to the Mayor have also been removed as this type of record falls outside the scope of the act,” city officials stated in the decision letter granting partial access to the records.

Meanwhile, reporters from the Sun have used 7,000 pages of released emails to shed light on the inner workings of the mayor’s o ffice. Read that story here.

Members of the Virginia Supreme Court have a New Year’s Resolution — become more transparent.

Starting this year, members of the public will finally have access to audio recordings of oral arguments. The recordings were once public, but installation of new recording equipment in January 2008 changed that. As the Alexandria Gazette Packet first reported last summer, justices instituted the blackout policy because they were concerned their sidebar conversations between justices might be audible.

"That was a lame excuse," said Del. Dave Albo (R-42). "I'm glad they decided to change this without the General Assembly passing legislation to make it happen."

As it turns out, legislation was already in the works. Prompted in part by the Gazette Packet's report, Wise County Clerk of Court Jack Kennedy approached Del. Terry Kilgore (R-1) about introducing legislation requiring the court to release audio recording of oral arguments. Draft language for House Bill 1018 said audio records of Supreme Court oral arguments "shall be made publicly available in electronic format without fee within a reasonable time after oral arguments take place."

"I'm a Democrat and he's a Republican," said Kennedy, who lives in Kilgore's district. "But transparency should not be a partisan issue."

Read the full story here.

Oregon State University student media adviser Kate Willson thought she was just doing her job when she filed a public records request with the university. Now she’s worried it could get her fired.

OSU’s chief spokesman says Willson’s job is safe and the university was not trying to muzzle her. But he also says Willson was out of line when she tried to obtain public records from the institution she works for and that all such requests should be filed by student journalists, not their adviser.

Read the article here.

By Ellen Gabler

Since June, the Milwaukee Journal Sentinel has been fighting for important data that affects babies born in every state and the District of Columbia.

Data we’ve received so far was the backbone to this investigation into delays in the nation’s newborn screening programs and other related stories. But about two dozen states and the District of Columbia won’t release meaningful information. (Check our interactive to see which states are in the doghouse.) 

Here’s why it matters: Nearly every baby born in the U.S. has blood collected shortly after birth to screen for rare but deadly genetic disorders. The blood is collected on a card that is supposed to be sent within 24 hours to a lab for testing.

But we found that thousands of hospitals throughout the country are late sending the blood samples for these life-saving tests. Delays can be catastrophic for a child with one of the disorders, resulting in serious medical issues, brain damage and even death.

Here’s why you might care:  Twenty-four states refused to release data about how hospitals perform. So parents in those states have no idea what is happening at the hospital where their baby will be born.

Our investigation found that some hospitals and states are especially bad at sending samples promptly. Many hospital officials didn’t even know their facility had a poor record and pledged to make changes immediately when we alerted them to the problem.

Our analysis was based on nearly 3 million blood tests from across the country. Yet states including Colorado, Tennessee, Arkansas, Virginia and New Jersey won’t release the data. That’s even as dozens of states throughout the country are making significant changes to their newborn screening programs, including some of the states that won’t release the data!

What you can do now, or for future health-related stories: Several news outlets have done a great job localizing the story and holding accountable hospitals and public health labs in their own states. (Albany Times Union, Arizona Republic, Rochester Democrat & Chronicle, and the Salt Lake Tribune to name a few.)

But we still have no idea what’s going on in dozens of states and the District of Columbia. (A few states have said they will release their data soon or are working on it.)

Reporters in the states holding out can push health officials to release the information which is crucial to the health of newborn babies. We have contact information for lab and health officials in each state.

A warning: They’ve got a lot of excuses (which they probably use for other health-related investigations too.) Don’t buy ‘em.

Most states  were very hesitant at first to release information with hospital names. They said it would be adversarial to hospitals or might reveal their business practices.

Many cited patient privacy, even though children's names and outcomes of tests were not requested. They said that releasing data would violate HIPAA (Health Insurance Portability and Accountability Act), a common excuse used with health-related records. While HIPAA is relevant in some situations, it is grossly overused and reporters must fight back.

One state said releasing the name of a hospital and the total number of babies born at that hospital would allow me to identity individuals, a violation of HIPAA, they said. I went to that health department’s site and looked at health statistics the agency regularly publishes. In an email I politely explained that it seemed strange they would withhold the information I was seeking while they frequently publish the number of individuals within small Indian Tribes who are diagnosed with specific sexually transmitted infections. I got the data a few days later. 

In other states, health officials offered to provide data that was essentially useless. For example, several said they would release the average time it took hospitals to send babies’ blood samples. That obscures outliers and makes it impossible to see the number of kids who might be in danger.

Other antics included:
Florida officials were posting monthly reports of hospitals’ newborn screening performance on their health department Web site. We downloaded the reports, scraped the data from the PDFs and compiled annual totals after officials refused to fulfill a records request for the data.

Just a few days later, Florida removed several years of the reports from their site (don’t worry - we had them saved.) They also said that all their data “might” be wrong. (It’s not.)

Officials in West Virginia promised for several months that the (electronic) data I had requested was on the way. Then one day I received a stack of paper records in the mail with all hospital names redacted. The information was essentially worthless, plus the health department had only sent data for babies’ samples that took an exceptionally long time to get to the lab.

Read the entire Deadly Delays series.

Ellen Gabler is an investigative reporter and assistant editor at the Milwaukee Journal Sentinel. egabler@journalsentinel.com and Twitter: @egabler

The federal government is making it increasingly difficult, and prohibitively expensive, for journalists to get files that agencies want to keep secret, despite President Obama's pledge of transparency, IRE President David Cay Johnston writes for Newsweek.

That's bad news for authors, editors, producers, writers, and publishers, as well as anyone else interested in democratic government. But it is great for ineffective, inefficient, and corrupt federal officials.

Federal agencies routinely flout the 1966 Freedom of Information Act, the so-called Open Government Act of 2007 that strengthens the 1966 law, and Obama's 2009 executive order directing agencies to err on the side of disclosure, not secrecy, a host of journalists, public-interest advocates and lawyers tell Newsweek.

Specialists in Freedom of Information Act requests say there has been a general tightening up and an increase in denials for both records and fee waivers for journalists. They attribute this to Freedom of Information staff budget cuts and the absence of pushback from Congress.

And what of President Obama's directive?

"All Obama's executive order did was give agencies that were good about disclosure something to back them, while requiring nothing of the bad actors" who gin up reasons to withhold, says Bradley P. Moss, a Washington lawyer who specializes in access to government records.

Moss and others cite the Central Intelligence Agency as obstinate, releasing hardly any information and refusing to comply with laws requiring machine-readable documents, like spreadsheets. The CIA only releases copies of records on plain paper.

An egregious example of flouting the law is a recent, undated Justice Department ruling denying a fee waiver to Dennis McDougal, a former Los Angeles Times reporter and author of 10 books, including investigative biographies of Jack Nicholson, Hollywood mogul and Democratic Party power Lew Wasserman and Times publisher Otis Chandler.

McDougal wants Drug Enforcement Administration records of David Wheeler, a shadowy entertainment industry figure who died in 2001. Wheeler was known to hang out in the DEA's San Diego office and make time with secretaries. McDougal (and others) believe he gave agents damaging information on his competitors and, in return, was allowed to run his criminal enterprise.

Such records seem to meet the legal standard of information "in the public interest because it is likely to contribute significantly to public understanding" of government operations.

Sean R. O'Neill, chief of the Justice Department appeals staff, denied McDougal's fee waiver request stating, "It appears that you seek the information to further your commercial interests." O'Neill did not respond to a request for an interview.

Corporations asking for government files to learn what competitors are up to are commercial interests that must pay for document searches, but the law treats authors and other journalists differently because they represent the public interest. Big companies and their lawyers flood agencies with such requests and pay the required fees.

O'Neill told McDougal he had not shown how the records would "shed new light" on government operations, so he must pay $1,900 just to have 17 files searched with no promise that any documents would be released.

And, O'Neill wrote, McDougal had not established that he was a journalist likely to get his work published, even though the research is for a biography of Bob Dylan, for which McDougal is under contract with Turner Publishing.

Moss, who does not represent McDougal, says such responses are now commonplace: "Federal agencies have essentially been nitpicking [Freedom of Information Act] requests to find ways to deny fee waivers and access to files."

A new tactic is claiming government documents are "personal" rather than public records or that the records are of no interest to the public. That forces journalists to give up or sue, which, with appeals, can take years and cost tens of thousands of dollars.

Two officials denied requests by author Greg Muttitt for his 2012 book Fuel on the Fire: Oil and Politics in Occupied Iraq, on what lawyer Kel McClanahan calls "the bizarre position that no one in America would care about this because they have more pressing issues" to consider.

(Disclosures: McDougal and I use the same literary agent, and I am editing an anthology for Muttitt's publisher, but learned of these matters independently.)

The federal government is also refusing to disclose records and grant waivers from small circulation periodicals on the theory that they cannot "contribute significantly to public understanding."

Those rejected range from IndyMedia.Santa Cruz.org, a one-person California blog, to High Country News, an environmental magazine with 25,000 paid subscribers and a much wider influence because of its award-winning watchdog reporting on government since 1970.

Writer Matt Jenkins says High Country News paid the Coast Guard for the records because the cost was less than an hour's fee for a lawyer, but he said the assertion that its circulation made it insignificant should offend everyone who believes government derives its powers from the people.

These rejections seem to clearly violate the 2007 Openness Promotes Effectiveness in Our National Government Act that makes disclosure, not secrecy, the legal principle. That law provides that "any person or entity that gathers information of potential interest to a segment of the public" and has an audience qualifies for fee waivers. The 2007 law makes no mention of audience size.

McDougal says he cannot afford a legal fight so he hopes to persuade a lawyer to take his case pro bono. "As a practical matter," McDougal argues, "we have given the right to define what a journalist is to bureaucrats.... By O'Neill's definition Thomas Paine would not have qualified as a journalist when he wrote Common Sense, which arguably incited the American Revolution, because Paine did not publish a newspaper or even a book, just the 18th century equivalent of a blog."

Earlier this week, the Sunlight Foundation filed its very first Freedom of Information Act (FOIA) lawsuit. In May 2013, they sent a FOIA request to the General Services Administration (GSA) requesting a copy of all contract notices that had been posted on FedBizOpps.gov since 2000. These notices would allow members of the press, researchers and our developers to analyze government spending patterns, to look for inaccuracies, corruption and waste.

Just two days after the filing of Sunlight’s first lawsuit, and after more than five months of agency recalcitrance, they received the documents they sued for under the Freedom of Information Act. These documents include more than a decade's worth of solicitation and award notices from FBO.gov, and they made them available to the public for downloading below.