David Cuillier is director and associate professor of the University of Arizona journalism school, as well as president of the Society of Professional Journalists and author of the public records how-to guide, The Art of Access: Strategies for Acquiring Public Records. MuckRock caught up with the FOIA guru to talk about the future of access in the U.S., bizarre denials and strategies for acquiring documents.
You’ve written a book about filing for public records The Art of Access: Strategies for Acquiring Public Records. What’s changed since you wrote that book, if anything?
Well that’s a really good question. I think we have some new players in the FOI world that are helping move things forward MuckRock is one of them. You all have done some amazing things. The Sunlight Foundation is one of them. Just a lot of neat things that are going on.
But at the same time we’ve had this counterforce that has not helped things. This increased secrecy that continues to threaten our country. People are less fired up about government secrecy in some ways. The uproar that we had following 9/11 and the Patriot Act and some of the repressive policies: we had a backlash going on. A lot of people were rising up and fighting for openness. That’s kind of subsided a little.
On the other hand the government overreach — with the wiretapping and the NSA — I think is stirring folks up. So it’s just really interesting to see how things are evolving in the world of access and secrecy.
I think overall it continues to be a huge struggle.
What’s the most common question you get at the SPJ from journalists regarding FOIA?
It tends to be, “I asked for this record and they said no. What do I do?” That’s what we hear all the time. People don’t know what to do and that’s too bad. We shouldn’t have a country where people just want information about their government, they’re told no, and then don’t know what to do about it. That’s just sad.
There are other countries that are teaching their citizenry how to access government. In Mexico K-12 and universities teach access to government records. I don’t see that around here.
How about your personal FOIA life? How often do you submit requests?
I don’t really submit many requests anymore. As a researcher and teacher I spend all my time focusing on the issues but I don’t get in the trenches as often as I’d like. I kind of miss it. I live vicariously through my students as I have them run around and request various documents.
I still encounter the weirdest denials. It’s just amazing the strange denials that agencies come up with.
Speaking of weird record requesting stories: Which request of yours would most merit a screenplay?
There have been so many. I think a lot of people have had much more fun and interesting request journey’s than mine. Mine have just been sloughing through, back and forth, haggling and psychological warfare. But all that is fun, that’s why I got into this.
There was one great battle I had in Washington state with the Department of Social and Health Services. We wanted a database of all the people who were paid by the state to provide childcare for people who were on welfare. It was a database of 10,000 people.
They put up a huge fight, citing an invasion of privacy and an inability to export the data. Just barrier after barrier. Of course they knew what we were going to do with the data: cross it with the criminal database and find pedophiles and murderers and rapists being paid by the state to babysit.
So they delayed as long as possible because in the background they were crunching the data in the same way, trying to beat us to the punch. Finally we got the data after they couldn’t stall any longer and just to kind of kick us in the groin they sent a letter to each person in the database saying that the newspaper had requested the information.
In that letter they listed my phone number and said to contact me with any complaints.
We were, of course, deluged with all kinds of inquiries and they also gave copies to all of our competitors in the area. They did everything they could to thwart us. They tried to go to the AP and announce how they found this problem in their system of not doing criminal background checks on these babysitters and how they fixed it.
I was just amazed at the amount of work that an agency would go to to protect its reputation and to fight information release. And I guess I don’t blame them.
At MuckRock we debate about the many challenges to open access to records. It seems so straight forward: I ask a records custodian for a public record and they give it to me because the law compels them to do so. Of course it’s never that simple. What are the biggest players that keep documents out of the public’s hands?
I think you mentioned it. I’d have to say it’s because the law does not compel custodians to turn over records. The problem in America is our laws are weak and toothless and, to some extent, almost worthless. Because government can ignore these laws, they’re going to.
In Arizona, it’s a misdemeanor to violate the public records law. It’s a felony to give out a sheriff’s home address or documents that might include that.
The laws are stacked against openness in this country. As opposed to other countries, where they have stronger laws and tools in place to enforce those laws other than having to hire an attorney to sue somebody — which people can’t afford.
Mexico is a good example where they have an independent agency to enforce their access laws.
I can see why clerks don’t follow the law and why three quarters of time police ignore the public records law and deny requests illegally. There’s a reason for that. They don’t have to follow the law because there’s no repercussion. That’s the number one problem in my mind.
MuckRock’s form request letter does not include language that threatens or suggests legal litigation, but your book mentions that sometimes doing so has a greater effect. Can you explain that?
You want to be careful about threatening litigation unless you’re really prepared to do so. But my experiments indicate that when you do point out the law and potential repercussions for not following the law to government officials, then agencies are much more likely to give you what you ask for.
You need a big stick. Otherwise government is not going to follow its own laws.
I caution people on using legal threats in their letters. You have to use that judiciously, but there’s nothing wrong with pointing out the repercussions of not complying with the law. And that’s what I really recommend to requesters.
Make the ‘no’ more uncomfortable than the ‘yes’. There are a lot of ways to do that legally or even psychologically. Make it clear to the records custodian that if they deny you the record their life is going to be worse.
One thing that you can do, for example, is to single them out: “Edna? Edna Johnson is it? You’re the one who’s potentially violating the state public records law here? Shoot, I’m going to have to tell everyone that Edna Johnson is violating state law. Edna, I’d hate for you to be put in that situation. Shouldn’t we check this out with the attorneys to make sure that you don’t get fingered for this violation of state law? You don’t get paid enough to deal with that Edna.”
Let’s talk about that lawyer. Often times the first person who sees a request might not know as much as they need to in order to properly handle the request. Maybe they’re unsure about the consequences or don’t know whether a particular record is exempt. What’s to be said for putting language in your request that kicks the process one step farther by jumping that first person and landing in the legal department?
Yes, if you make your letter all legalistic it will tend to shove that letter upstairs to the lawyers. And I don’t think there’s anything wrong with that. In fact I think it speeds things up, sometimes.
Having a legalistic letter provides the advantage of triggering in a clerk’s mind that this is something they have to address and not just another inquiry about office hours or ‘can I get a dog permit on Saturday.’
You also talk about how cultivating a relationship with information officers can often be a more productive way to obtain records as opposed to beating them over the head with legalese. Can you talk a bit more about that?
Again it depends. There are circumstances where beating them over the head works quite effectively. Again there’s a huge benefit to making it more of a pain for them to say ‘no’ than ‘yes’. Frankly, I think it’s more productive to make their life miserable to where they will just give you what you want so that they can get rid of you.
But I think for the most part overall it’s good practice to treat humans like people and be professional and courteous and respectful. I don’t think we have to develop friendships or relationships per se with PIOs. That’s not our job. But it doesn’t hurt to treat people with respect.
The reality is that they will be a little more cooperative if they know you and have some sort of trust that you’re not out to get them.
There are a lot of tools you can use to get records. Use the right one for the right job.
What kind of tools or tips do you have for our requesters?
That’s why we put the whole book together, to distill all the tips that we’d tried to gather from folks who request a lot of records. I’m sure MuckRock could write a book on this and you should because the more information out there the better.
I think you have to do a lot of front end reporting to know what you’re asking for. You have to find out what records they keep, what they call them, and what’s in their system. Unfortunately there’s not a lot of easy ways to do that.
Some states require indices where they list what records they have but those are not usually complete or detailed. So you have to go talk to people and find out what they do. What are their processes and what records do they keep to document those processes.
Once you know that it makes it a lot easier to know what you’re going after.
It’s hard to just walk into an agency cold and say, “I want all your records regarding ‘x’ topic.” You’re probably going to waste a lot of your own time and their time. The people part of it and the reporting part of it is really important in the whole process.
Also trying to get the data or the electronic versions of records is always useful because it will save you in copy costs and you can look at it in ways that are much more powerful. Even a simple sort function in Excel will save you a lot of time.
Fight copy costs. I know a lot of people roll over on them when they’re charged $.50 per page. I think it’s outrageous that governments would charge anything more than $.03 per page. It literally costs $.015 to make a photocopy when you account for toner, paper, copy machine maintenance, etc.
I consider it a poll tax. It prices poor people out and that’s immoral. So people should not stand for high copy costs because they are a deterrent for people to see what they’re government is up to.
Do you think the ease with which U.S. citizens can access to their government’s documents is going to change any time in the near future? If so, what’s going to lead to that change?
Do I think access is going to get better? Nope. I think it will get worse. I think people have more access to government information than ever before, but the problem is the information being volunteered online by government is not useful information, for the most part.
The important information that we really need in order to self-govern, the government may not want us to have that. They’re not going to put that online, and it’s going to be harder and harder to get that information out of the government. The government is becoming better at managing the message and information control. The laws are becoming weaker with more exemptions and more outs for government. There are more walls, particularly in how the courts are viewing access to information, including The Supreme Court: very hostile towards openness.
Meanwhile there’s this appearance of greater access because of all this gunk and data that’s dumped online by governments, but does that make us better? I don’t think so.
Image via SPJ.org