Requester's Voice: Eileen Feldman

Requester’s Voice: Eileen Feldman

Records requests are ‘indispensable,’ but ‘the activist has to shine the FOIA’

Written by
Edited by Michael Morisy

Disability civil rights activist Eileen Feldman is director of the Community Access Project, a grassroots social justice organization representing working age and older people living with disabilities. Her work to end stigma and exclusion of the community of people living with disabilities has been sharpened over the years as she’s become more savvy about public records requests and their power to bring policy decisions into the open.

How does disability civil rights activism intersect with making public records requests?

Americans with disabilities have, on paper, fairly specific rights to “enjoy full inclusion and integration in the economic, political, social, cultural, and educational mainstream of American society” within programs and activities receiving Federal funds per the Rehabilitation Act of 1973; in 1990 the Americans with Disabilities Act extended those rights and protections to cover all public programs, services and goods regardless of funding.

Yet, despite these legal advantages, people with disabilities are still routinely denied fundamental human rights, including: freedom of movement through our communities; equal access to public services and goods; equal and integrated economic, educational and affordable housing opportunities; access to neighborhood refuges, such as libraries, where these are within walking distance for non-disabled neighbors; usable public transportation routes; and even access to an effective remedy when our rights are violated.

Public records requests are an indispensable tool of the trade. FOIAs also help us gather evidence leading to communications with state and federal agencies in charge of monitoring and enforcing nondiscrimination laws. When those investigations are completed and the Resolution Agreements signed, our work becomes part of the public domain to assist other activists.

I and other CAPS members strategize public records requests based on the complaints and requests we receive from low-income community members who represent thousands of individuals living lives of extreme poverty and lack of opportunities. Our public records requests have sometimes shaped multi-year community access projects.

Do you have any examples?

During a 2007 campaign, the Somerville mayor proudly stated that he had beautified over 100 streets since he came into office. At the same time, CAPS was receiving a steady stream of complaints about the unsafe city sidewalks in many neighborhoods.

So I made a public information request to the local public works commissioner for a list of the mayor’s stated streetscape accomplishments. I received back a spreadsheet showing Somerville’s street reconstruction projects completed during 2004 - 2008.

In the meantime, I had successfully applied for a grant and received enough money to buy a couple sets of digital surveying tools. I mentored several members on how to survey sidewalks and curb cuts based on the state building code and the federal ADA requirements. We surveyed 95% of the streets on that spreadsheet, which took many miles and hundreds of hours of work), and found that less than 20% of the newly replaced curb cuts and sidewalks had even been reconstructed to minimal state and federal standards.

In December 2010, CAPS submitted a batch of over 100 state architectural access board complaints on this new construction. We were able to provide actionable proof that the city was spending millions of dollars on street “beautification” projects that didn’t even adhere to the minimal architectural access code.

That simple FOIA captured enough information for CAPS to demonstrate waste of public resources, important public safety issues impacting families, patterns of absurdly illogical use of public funds and also highlighted issues of importance to all stakeholders within a major commercial square.

Our work also generated a major citywide streetscape improvement effort.

If you can remember, what was your first public records request?

I don’t remember. I started making public records requests in 2005. I had so much to learn. I allowed many requests to languish, and didn’t follow through with tracking my requests on any spreadsheet or even with electronic calendar alerts.

Probably my first consequential records request was in 2008, I sought out the city’s ADA Transition Plan from the nominally designated ADA Coordinator who obviously wasn’t knowledgeable about the city’s obligations. (A city’s ADA Transition Plan should be available for public inspection if any current programs, services and public opportunities remain inaccessible.) My emailed request was ignored, I requested again, and then appealed the lack of response with the Supervisor of Records. The State ordered the City to provide a response, and the response turned out to be “no responsive documents.”

This no-response was an important resource to include within CAPS’ first major federal complaint. That U.S. Department of Education Office of Civil Rights investigation lasted 2 years and resulted in a Resolution Agreement with the Somerville School District that remains a tool for monitoring and enforcement today. If the city complies with that resolution, it will have a positive and sustainable impact for students, parents and others who drop in or regularly participate in School Committee Meetings; and for teachers living with disabilities who may consider applying for a job.

This first request also raised community awareness around disability civil rights issues through the accompanying blog.

Where does FOIA shine as an activist’s tool, and where does it fall short?

I think the activist has to shine the FOIA. We need to do good research to make sure our requests are as efficient as possible, by naming exact documents that help the agency respond in a timely manner. We also need to figure out how to submit FOIAs strategically, especially if we tracking an agency’s progress over a longer term. Also, we need to plan a bit to make sure there’s the time and capacity to answer the custodian’s clarification questions; and to mount an appeal if necessary. It’s also necessary to put aside a budget for public records requests, keeping that separate from other administrative needs.

I’ve also found that keeping an electronic calendar to raise flags and alerts when certain types of information are likely to be ready for public consumption helps me file timely requests for annual or cyclic reports that come due relative to certain Federal or State-funded projects that impact persons with disabilities locally and statewide.

Can you offer any advice to people who are new to public records requests?

Sign up for a MuckRock account, research through MuckRock’s examples and jump in with something you are really curious about! Also, as other RVs have mentioned, an excellent strategy is to link the record you are seeking with news articles, reports or other references that cite that document or record.

Do some research prior to submitting the request to see if those documents might already be available online.

And a request to requesters: if the documents you are seeking were composed on a computer, please insist that they be provided to you in native format; or, you might say “accessible format,” or you can call it “machine-readable format.” Agencies may otherwise provide scanned paper documents that are scanned so sloppily that they are not amenable to optical character recognition (OCR) software, and therefore not even accessible via MuckRock’s helpful “Text” tab that comes alongside the document’s link for downloading responses.

Inaccessible public documents are ridiculously hard to search through and to analyze and organize by patterns and other useful focus points and structures.

If there are images on the page, the image is not, at the current time, going to be machine-readable - that technology is still in production. However, if the responsive documents are text, and the text was generated after the mid-1980s, it is likely that the responsive docs can be provided in machine-readable format.

Here’s case law that establishes the right for Massachusetts requesters to have access to native format, provided courtesy of MuckRock founder Michael Morisy’s fabulous request in August 2012, in which the Massachusetts Supervisor of Public Records responds to an appeal by explaining to the agency custodian:

“limiting the public’s access to only paper records at a time when the government is using a more efficient means of reviewing information is an effective denial of this right to meaningful access… Moreover, a recent court decision suggests that records should be provided in native format, if requested…”

Ultimately all public information should be readily available to the public online in both open-source and original context in a searchable, sortable, and downloadable format. That would truly be a more transparent, accountable and open government environment.

So please, if you can, insist on receiving your responses in native formats, aka accessible electronic format, aka machine-readable formats. (FYI: MuckRock’s boilerplate already includes this language!)

Image courtesy of Scout Somerville.