The art of access: Strategies for acquiring public records in an increasingly anti-media world

By Ashley Sutherland, Arizona State University

Delays. Excessive redactions. Fees. These are just some of the issues journalists and other citizens face when requesting public records from the government.

David Cuillier, director of the University of Arizona School of Journalism, and Miranda Spivack, a professor of journalism at DePauw University, offered tips and strategies on how to obtain public records during a session at the IRE Conference in Phoenix.

Spivack started by sharing a few public records that she has found hard to obtain, such as the most dangerous highways in a state, and body camera and dashboard camera footage.

Cuillier suggested different tools journalists can use to ease the public records process:

• FOIA mapper — Helps people find which agency to submit a FOIA request to and approximates the time and chance of receiving that record by agency.
• MuckRock — For a fee, a requester will help you file your public record request.
• Legal guides for your state’s open record and open meeting laws, such as the Reporters Committee for Freedom of the Press guides.

Every week, reporters should submit one public record request using the services and tools available to them, Cuillier recommended. He also called for a reframing of the process. Reporters should not request records, they should “order” them, he said, reminding attendees that “the people” have the power in open records processes.

“It’s like ordering food at a restaurant,” Cuillier said. “It’s like ordering a book at the library. It’s like ordering something from the store or Amazon. You just put in an order for what you’re entitled to.”

When filing a public record “order,” Cuillier suggested not to be neutral or nice, and to instead use legal language in the request letter. Additionally, both the Student Press Law Center and the Reporters Committee for Freedom of the Press have online record request letter generators.

Cuillier mentioned “soft” psychological tactics journalists can use to obtain public records:

• Ask for more data than you need and then reduce your request. For example, start by asking for 25 years of data and then, later, ask for 15 years — this will make the agency think you’re helping them reduce their workload.
• Be consistent. Once you get them to say “yes” it’s hard for them to say “no.”
• Bring out the charm and dress nicely.
• Use peer pressure. For example, tell them that another agency gave you the record you are requesting, and then ask them why they can’t.
• Use your company’s letterhead to boost your authority.
• Make the public records office aware of the time crunch you're under for your article and tell them they have a set amount of time to send you the records.

If these “soft” tactics don’t work, you can try some “hard” tactics to get public records:

• Go to the highest level.
• Report on your records request.
• Order emails about your public record requests.
• Bury the office with record requests.
• Show them a list of cases where cities have been taken to court over public records – and lost.
• Try public shaming, like a clock on your website counting the number of days records have been withheld.
• Release the hounds: Sue them using resources like the SPJ Legal Defense Fund or the Knight FOI Fund.
• Spivack also mentioned the power of face-to-face reporting and suggested going into the office to get records and talking to sources in person.

Finally, Cuillier suggested attendees support the cause by donating to funds that fight for journalists’ rights.

You can check out the handouts from the panel here and here.