David Cuillier is an associate professor in the School of Journalism at The University of Arizona. He specializes in public records reporting and co-wrote the book, The Art of Access: Strategies for Acquiring Public Records, the second edition of which is being released this month. The book teaches journalists and involved citizens how to gain access to public records, which he says is an art that requires understanding of the system and human behavior.
This past year, Cuillier did a study on the strength of public record statutes on agency transparency in the different states. He is presenting this study at the Global Conference on Transparency Research in Rio de Janeiro. Cuillier used MuckRock data from 2014-17 as a compliance measure for the study.
For this week’s Requester’s Voice, Cuillier spoke to MuckRock about his book and the study he worked on this past year.
You co-wrote The Art of Access: Strategies of Acquiring Public Records, and now, almost a decade later, you’re coming out with a second edition. What changes did you make in the second edition of the book?
Well first, we removed page 21 - “Be The Donald” - where we gave advice to have confidence going into your government agencies. At the time we wrote it in 2010, I think The Apprentice was still on TV. We thought, “Well, gee, who has more confidence than Donald J. Trump?” But now we don’t hear the end of it; everybody always says “great book, that part about ‘Be The Donald,’ you gotta take that out.” So we did.
But beyond that, we talked to about 80 more experts and added their tips in the book. We put in a lot more tech tools that have emerged in the past 10 years, including MuckRock. MuckRock was not around when we first wrote it, so we definitely got that in there, among some other tools. We updated URLs - a lot were broken. We added other tips from research. A lot of research studies have gone on in the past 10 years, like experiments and things that help us understand the process and how to be better at getting records. And we added other sections on how to sue for records on your own. How to get records from tribal governments to global FOIA. We tried to fill in spots as we continue to learn - we are students ourselves. We’re learning everyday. RIght now, we literally just put the second edition to bed and sent off for approval to the publisher, and I am already starting on the third edition. There are already things I want to add and update on that. It’s a never ending process.
I saw that you did a state-ranking study. Can you expand on what the study is and why you conducted it? You used MuckRock data for the study, right?
MuckRock is really unique because it is the only entity I know of that systematically requests records from all sorts of government agencies all across America. There is really nothing like it out there. Thankfully, they were willing to share their data. In fact, they share it on their website - I love their transparency. It is a unique data set that had to be crunched. It is simple to crunch a compliance rate for every state in the country, that is simple enough, and do a ranking.
Rankings are always dangerous- nobody believes them. Everybody thinks they know their own state really well. Of course there are a lot of caveats but rankings can be helpful, and it’s not so much about who is best and who is worse. It is really about taking that data and then seeing what is correlated and associated with the best and the worst. What factors play in here that cause governments to be more transparent or less transparent. If we figure that out, we can improve the government. We can tackle the issues. We can make life better. And that is the whole point of that research. We have to identify the predictors of transparency and work hard to improve that throughout the country.
How long did it take you to do the study?
MuckRock gave me the data last summer. I’ve been cleaning it, crunching it, and creating the predictor variables, the independent variables to do the analysis, and that took a long time. I created scales for all the states, for different provisions of their public record laws, the strength of their penalty provisions, strength of their attorney fee-shifting provisions and on and on to probably a dozen variables. It takes a lot of time kind of investigating that - you have to dig through the state laws and call up media law experts in each state to make sure I am coding it right. So that took a while.
Can you explain what your main takeaways were from the study?
I have to preface this by saying that every study has its limitations. There’s no golden study that proves anything. It just a little piece of a little flashlight in the dark. It gives us a little better sense of what we’re dealing with.
So with that caveat, what this data suggests is that one, better transparency in the states is related to less corruption, and that is a great finding. So the states that are the least corrupt are the most transparent. We’ve always assumed that, that transparency is the best disinfectant for corruption. Well, this is a suggestion that there is a connection—and that is positive.
Another thing that came out of the data - it was really fascinating and I didn’t expect it - was that laws actually don’t matter a lot. This will probably be controversial and lawyers will hate me for saying it, but there was no relationship between strength of penalty provision and better transparency. I think a lot of people interpret that to mean you can have a lot of penalty from the law, but they are never enforced. Agencies don’t take them seriously. That was interesting. Penalties don’t matter unless you enforce them, which doesn’t happen often.
There were a whole lot of provisions in state laws that didn’t make much of a difference at all, like whether states have an ombudsman program or not - about half the states have some sort of mediation program, so if you are a requester and you’re denied records, you can go to this agency and they can help you. Those states don’t seem to have any better compliance than those without them. So that was interesting. And then, all sorts of other provisions of the laws that found no relationships, except for two.
One was, states have mandatory attorney fee-shifting provisions in their laws are more transparent and more likely to comply with public records laws. A lot of folks have been saying this anecdotally - you talk to associated press attorney, and they all say fee shifting is critical, and this data backs them up. So if someone requests a record, and an agency says no, you can’t have it, and the person sues the agency and wins in court, these states, the courts have to award attorney fees to that requester, and that can be tens of thousands of dollars, maybe eight to a hundred thousand dollars.
And that hurts an agency - not just the money, but the embarrassment. So, I think we’ve seen this anecdotally with states that have this. Agencies are going to take it more seriously, they’re going to think twice before willy-nilly denials. So what that means is, if we are going to focus our efforts on lobbying and state legislation, the first place we could start is to try to get these mandatory fee shifting provisions in every state law. That is one thing I would suggest to the FOI community.
The other thing that came out of it that I thought was interesting was that states that have deadlines in their laws of one to five days for agencies to respond typically did have a faster response. So people did get their records on 53 days average around the country. This is as opposed to states that six to 30 day deadlines. That was about 63 days average response time. The deadlines do help, if you have a short deadline. There are a bunch of states, about a third of the states that have no specific day deadline. Those states, interestingly, had an average of 60 days. So you are just as well off in a state that has no deadline as you are in a state that has along the deadline of six to 30 days.
Green = Clearly-defined time limit
Orange = “Prompt” time limit
Red = No time limit
So what you really want, if we want to improve laws, is to tighten deadlines to one to five days. I would recommend three days. And then maybe they will turn things around a little faster. Even then it is not guaranteed. The deadline just means when the agency has to reply, and the reply can often be “well, we need six months to get these to you.” So it doesn’t really help in the big scheme of things.
Those are the only things in the law that we found are related to better compliance.
But even more important, we found there were other things that were really strongly related to more transparency at agencies, and that is, political culture. So the one factor in the whole study that came out highly related to compliance was traditionalistic political culture. It was negatively correlated. So states that have a traditional type culture, and those are primarily in the South, have very low compliance. So like Alabama, only ten percent of their public records requests were complied with - the lowest in the country. We saw really low rates in Tennessee, Kentucky, Mississippi, Louisiana. The southern states had really low compliance.
The highest states were like Washington State and Idaho - they had 67 percent of requests that were complied with. That as the highest in the whole country and then it goes in between. States where you are not supposed to question, respect authority more, let government run things … that reverberates to this day.
So what do we learn? We can’t just focus on the law - that is important - but we also have to focus on the culture. How do we do that? Well. more research is needed. We need mandatory training in states to educate public record custodians and officials. Do we need public education campaign to educate the public on why this is important? We need to test those things out to see if they can make a difference because that is probably the biggest thing we can do to make government more open and transparent.
Anything else you want to say about the study?
I think it is really cool measure. We are going to keep working on developing and building it. We can test this around the world because there is another similar organization to MuckRock called Alaveteli that probably has similar types of data. We could test this around the globe with more than 120 nations that have FOIA laws. So that is cool and important. Every little study shows a little bit more. We have years and years of more research to try to go beyond correlation. Start doing experiments, start looking at what causes what - that is really the next step. Correlations are nice but they’re not as solid as causation and experiments. So we are going to have to work on that.
I just hope that everybody keeps up the good fight. This is important. This is critical, not only for journalism and business, but for society and making communities better. So everybody in the trenches that cares about this, stay strong, keep at it. It can be daunting at times. And reach out to me and let me know what should be researched and what we can keep working on and tell me where I am wrong and tell me where we can keep making the world a better place.
Cuillier’s full paper is embedded below.
Image via the University of Arizona