Rachel Alexander is the president of the Oregon chapter of the Society of Professional Journalists. She is currently a journalist with the Salem Reporter where she covers education and other topics. Earlier this year, she served as one of MuckRock’s guest judges for a special FOIA competition.
Know an Oregon reporter who deserves some public recognition or maybe just a new caffeine delivery mechanism? Read through to the bottom for a chance to nominate them to win FOIA coaching, MuckRock requests, and a FOIA swag pack!
Let’s start with a stroll down memory lane. Do you remember your first public records request?
My first records request was with a small town, Weston in eastern Oregon, for a copy of a settlement with a city employee that they’d let go. This is a town of, like, 700 people that never gets records requests. I think they have three fulltime city staff. So they said, “Well, it’s confidential. We can’t release it.”
I was a baby reporter at the time, but I thought, “That doesn’t seem right.” I went back to my editor and he was all up in arms. So we got the lawyer to write a letter to the D.A. and the D.A. said, “Yeah, you can’t settle a public issue with private settlements. That’s not how any of that works.” So we got a copy of it. I think that was my introduction.
For those super fresh to the records process, can you talk about that calculation between making an informal request for materials and filing a formal public records request?
You know, people think of filing a public records request as a super formal process, and it often really isn’t. If it’s a state agency or a larger organization, often what I’ll do is call someone or do a little reporting before I file, both because that can yield useful information for me filing a request and because it helps to maintain that relationship. Especially smaller jurisdictions, I’ll often just send an email to whoever I think is responsible for something, like the City Council Clerk or the PIO.
In general, I’ll say in advance, “Hey, I’m interested in this general topic, I’m looking for information or data that looks maybe like this. Can you tell me a bit about what you keep, how you keep it?” Sometimes that will yield, “We have this information which is super ready to go in this spreadsheet and is 93 percent of what you want, and if you want that last seven percent, that’s going to take three months.” And I can say, “OK, give me that 93 percent. We’ll go from there.”
Some agencies really want a formal request because they really want to track all the information coming in and going out, and in those cases I just say, “Just let me know whatever bureaucratic hoops you need me to jump through.” That can grease the wheels a bit and let people know that I know that they have a process to follow and I’m happy to do that, just like let me know what it is.
What would you recommend to somebody who’s trying to navigate concern about ruining a relationship with a public information officer versus trying to actually get the information?
If a public information officer wants to ruin your relationship because you asked for public records, no matter how you do it, that’s on them, not on you. That’s part of their job, you know. In general, I recommend calling a lot, especially with data, because I usually have questions about how things are stored or how things like work.
Could you tell us your general impressions of the request process in Oregon? Are there parts of it you think are particularly good or gaps you’ve run into that should be rectified?
There are a couple of key issues in my mind with the way Oregon’s law plays out in practice.
One is that we’re one of the states that allows agencies to charge requesters fees for staff time, so a lot of agencies will use that as a delay or obstruction tactic.
Another issue with our law is that the appeal provision is really weird. If a decision is made by an elected official, there’s no way to appeal it administratively. You have to file a lawsuit.
For non-elected officials, you appeal to the county D.A. for local government requests and, if it’s a state agency, you appeal to the AG’s office. You actually don’t need an attorney to do that, which is cool.
But if the decision’s coming from the county sheriff — law enforcement’s obviously a major area where people request public records — well, it’s the sheriff’s decision. The sheriff could say, “Well, I’m elected,” and then you basically have no recourse there unless you happen to have the funds to file a lawsuit, which again, most people don’t. So that’s a challenge.
In addition to being problematic just on its face, it’s really wide open to abuse. We’ve seen cases where a county got sick of the local paper filing records for pretty normal stuff, and so they declared that all records decisions being made by county staff were actually being made at the behest of County Commissioners, who are elected, and therefore couldn’t be appealed internally.
We’ve run into that with the sheriff’s office here, too, saying that even though these are being made by deputies and attorneys in the Public Records Unit, it’s all under the purview of the sheriff, and therefore it’s his personal decision and it can’t be appealed. So people who want to not disclose records can extend that vision to be larger than I think it should be allowed to be.
You could appeal to the D.A., but then that also kind of depends on having a D.A. who’s friendly to open records issues, which isn’t a thing that anyone ever really runs for D.A. about or that people vote for D.A. considering. There are some DAs in the state of Oregon who generally, I think, consider the facts of the case and where there’s precedent, but I think there’s also a number that just generally reject appeals on their face, regardless of the merits at play. We’ve certainly found that in our work and just hearing stories from reporters around the state.
And, you know, I get it. If I’m a D.A. I need to work with law enforcement agencies all the time in my job and there’s no incentive for me to piss them off by releasing records that could be damaging.
Have you seen this being an issue recently when dealing with police records? What legislative changes would you and SPJ like to see around these materials?
Not as much right now, and honestly, that’s because, a lot of journalists’ attention right now is focused on the more immediate issue of police tear gassing journalists who are covering protests and using force against them. A lot of my energy and that of the SPJ chapter has gone into the more immediate concern of, “Can you please not arrest people who are just filming you?”
SPJ Oregon is pushing more transparency around police records, around disciplinary records, use of force, internal investigation - kind of your standard like police accountability records. In theory, under the law, they’re subject to a public interest balancing test — it’s a privacy versus public interest-type thing. In practice, they’re rarely disclosed, which is because of the issues we’ve talked about.
So we are pushing them to have disclosure of those records presumed to be in the public interest. That makes the bar for things that seem too embarrassing or too irrelevant higher, basically, so you can’t use that as the balancing test as a workaround to categorically deny the release of those records.
What are other quirks of Oregon law that are affecting reporters’ work?
My experience with public records is that the text of the law often doesn’t matter as much as the culture around it — both what the litigation history is and then also sort of what’s the norm for agencies.
We’ve seen some positives and some negatives. Under Governor Brown there’s been a policy of state agencies waiving the first amount of staff time for requests, which is good, so most routine requests I file with state agencies don’t come with fees attached, and that’s really good.
But I also see a general reluctance to release information or presume that information is public even though the law allows its release. That’s frustrating. That’s something we keep running into with coronavirus in particular.
For example, the law’s written with a record exemption that says any information gleaned during a public health investigation is exempt from disclosure and agencies may release information that’s statistical or non-identifying in nature, but they don’t have to. So journalists are in a situation now where Oregon Health Authority (OHA) or local public health agencies can say, “These are the metrics we’re using to monitor how bad the disease is here, but we don’t have to release the underlying data.”
And they’re right, because under the state law, there’s nothing we can do about that. Nothing obtained by public health agencies in the course of a public health investigation is releasable. It’s all exempted. It’s a “may” in the law, not a “shall,” so they may release information that’s non-identifying, but since it’s a “may” it’s at their discretion.
In March, when everyone was figuring this out, the state was keeping track of people who were exhibiting coronavirus symptoms and had been in the same room as a known case but not within like six feet. The Oregonian asked OHA for that number: “What’s the number of people you’re monitoring in this group?”
OHA said, “We don’t have to give that to you” and cited that exemption, and the state Attorney General wrote an opinion saying, “They could share it, but under the law, they don’t have to.”
Hospitalization rates by county are one of the metrics the state’s using for how well counties are controlling the virus. Obviously, that’s a huge issue and one that a lot of readers ask about all the time. They’re like, “I don’t care how many cases there are, how many of them are in the hospital?” OHA will tell us whether that number is up or down for a county in a two-week period, but that’s it. They won’t share the underlying rates or numbers, and they won’t say by how much they’re up or down. It’s literally just like a Tableau dashboard, which is so aggravating and really not in the public’s interest. And it’s not a confidentiality issue. There’s no way you can argue that’s a confidentiality issue.
Release is at their discretion — so they’re choosing not to release that information to you. Are there workarounds?
Reporters pushed them on this, and then what they decided the solution was was they were going to list how many people were hospitalized with the virus by hospital across the state once a week in a PDF document, and if the number is less than 10 it will say, “One through nine.” So cool. This tells us absolutely nothing and it’s in a totally unusable format. Good job, guys. Good open data.
I can work around in the sense that if I can triangulate and look at all three [of the biggest hospitals] and I can get a sense if things are getting markedly worse or better, but it’s not at the level where I could, like, make a nice graph or infographic and sort of let people know, like, here’s what’s up.
How have you used public records in the past for some of your education reporting and what do you recommend to reporters who are figuring out how to approach a very crazy school year?
One thing I asked for earlier this summer and got were the results of the district survey on distance learning So they went out to parents and teachers asking, “How did this thing go for you?” And everyone was like, “Kind of bad.” So I wrote just a short story about what the survey said.
I also asked for the district breakdown of how many students had opted into the online option, because I think a lot of districts said, “If you want to be all online for sure next year we’re going to create a program for that.” Now everyone’s starting online because we have too much COVID, but what I’d wanted to see was if there is a big gap in kids signing up between wealthy and poorer schools and by grade level. I was kind of surprised to find that it was pretty even by schools across the district.
That’s how I tend to use records. When I hear district staff saying, “We found this” or “We need to do this for this kind of program,” I’ll ask for all the underlying data or underlying information. People don’t always think to ask for more routine stuff like that. I think a lot of people think of public records as a big deal or something that’s used to uncover wrongdoing. And they certainly can do those things, but a lot of my daily reporting incorporates public records, and it’s stuff that’s not necessarily scandalous or secret; it’s stuff government agencies wouldn’t proactively send out until you ask for it.
Have you ever gotten something back that you weren’t expecting? Do you have a favorite release?
Yeah, definitely. My favorite weird FOIA thing was back when I was a cops reporter in Spokane, Washington. I requested an asset forfeiture spreadsheet. A lot on it was what you’d expect: cars and guns and jewelry and cash. And then there was one line on the spreadsheet that was $50,000 worth of Magic the Gathering cards from one guy.
So I looked this up, and we’d actually written about this guy when he was first arrested. He was a hospital pharmacist who had been diverting oxy and selling it on the side. We’d noted in the original article that police seized a bunch of stuff in his apartment, because presumably it was purchased with drug money — that’s a whole separate discussion about asset forfeiture laws work.
But he had this huge, massive collection of Magic cards that the cops had taken and auctioned off.
I wrote the guy in prison and I was like, “You know, your name is already out there, and I’m not interested in rehashing your crime, but do you want to do an interview about your Magic cards?” He wrote me back, saying, “I would love to, but I want to be anonymous because my family has been through so much.”
But you can’t be in prison on multiple felonies and be anonymous talking about your Magic card collection — that’s not going to work, at least not for a daily newspaper. So I moved on to other things in daily reporting, and I never got to write that story.
Are there other issues with Oregon records our readers should know about?
A pervasive problem with public records in Oregon, and in other areas, too, is that as our local journalism has shrunk, there are fewer reporters out there filing requests to reporters and who are making it a little harder for agencies to deny them routinely.
If it’s less work for someone to just give you what you’re asking for rather than get lawyers involved and fight you, that’s going to tip the scales in favor of disclosure just a little bit. So, you know, I would love to see more people filing requests, period, especially local ones. And I’m just doing it routinely.
I hear from reporters sometimes who have editors who’ve literally told them not to file public records requests because it upsets city officials, and I’m like, “What are you doing if you’re not doing that?” That’s one of our most basic functions as journalists.
I think too many places just don’t have the time or resources for editors to do much coaching or teaching, which is a shame, because public record should be part of every reporter’s toolkit, whether you’re a beat reporter, an investigative reporter, whatever you’re doing.
Want to get into public records requesting but not sure where to start? Check out MuckRock’s FOIA 101.
What do you wish you had known when you were just a cub reporter?
I see a lot of times where people are maybe upset about a decision or are just convinced that the city councilors or school board members hold particular views and they don’t think to look at their emails or use them as a tool to either investigate them. Even for citizens who are just trying to be informed voters, those are, at least potentially, tools in your arsenal.
I would also encourage people to just start small, you know. Just think about an issue you’re interested in, information you could use.
Something I tell students a lot is to think about the process. We’re not just requesting data — literally get a copy of the form. What’s the form that generates this information? What sort of things does the city or the county keep on file? A records retention schedule will often give you that, but also there’s maybe a list of complaint types that they take or maintain.
Those sort of things work really well as menus to give you an idea of what’s out there and those can lead to more detailed requests. Sometimes it’s a two- or three-step process of just understanding what information is collected and how and then using that to inform your request and get what you actually want.
Rachel’s Recommended Resources for Oregon requesters
The Oregon Attorney General’s Office public records manual: “That has probably the best one stop catalog of all the exemptions and things.”
Multnomah District Attorney’s office: “They tend to handle a lot of appeals and other DAs will often look to their opinions to sort of guide things, so those can be helpful to use.”
Society of Professional Journalists, Oregon chapter: Providing support and resources to reporters in Oregon, SPJ Oregon advocates for government transparency and the people’s right to know.
Reporters Committee for Freedom of the Press: In addition to having a ton of great resources for requesters, as part of its Local Legal Initiative, RCFP has also helped to provide a resident lawyer to help reporters and others working in Oregon with appeals or potential records-related litigation.
Office of the Public Records Advocate: Serves as a mediator between requesters and government. “They don’t have legal authority to force anyone to release anything, but they can sort of gently remind agencies of a law and conduct trainings and be a good resource for information.”
Know another Oregon FOI superstar or transparency crusader in the making? Nominate them to win free MuckRock requests and swag!
To celebrate our recent Requesters’ Voice with SPJ Oregon president Rachel Alexander, MuckRock is holding a contest for Oregon-focused journalists. We’ll be selecting one winner at random on Friday, August 28. Get your submissions and nominations in by 9 p.m. PST on Thursday, August 27 (12 a.m. on Friday, August 28) to be included.
Photo credit Amanda Loman/Salem Reporter