Nearly ten years ago, independent journalist Brandon Smith won an unexpected victory in a transparency battle against the Chicago Police Department (CPD). Smith, who wrote for outlets including The Chicago Reader and The Chicago Tribune, transformed the FOIA landscape in Chicago through litigation.

In a short, four-page complaint suing the city for failure to comply with his public records request, Smith achieved what over a dozen more established journalists had not: the city was forced to finally release highly-sought dashcam footage showing a white CPD officer shooting Laquan McDonald, a Black, 17-year-old high school student.

The officer shot McDonald 16 times in the back as he walked away. The footage countered CPD’s claim that McDonald had lunged at the officer, causing him to act defensively. The video helped lead to the arrest and subsequent prison sentence of the officer responsible.

It also changed expectations of what was public record going forward. All video and audio recordings of police shootings in Chicago are now released automatically 60 days after the incident.

Smith’s case hinged on Cook County Judge Franklin Valderrama’s precise reading of three Illinois Freedom of Information Act (FOIA) exemptions that law enforcement agencies often claim in broad, sweeping strokes. Understanding what you are legally entitled to under FOIA ensures that you have the best chance of accessing the information you requested.

The spirit of public records legislation is widely understood to carry the presumption that government records, including law enforcement records, ought to be open and accessible to the public. However, in practice, the public often has to fight for access to those records, as in Smith’s case.

While costly and time-consuming litigation battles should not be required to access records, Nieman Reports found that filing a lawsuit is “by far” the most common recourse for those who have faced pushback from record-holding agencies. Smith told MuckRock that he knew he would likely have to sue before he even filed his FOIA request.

That said, there are a number of ways to best position your request for success before resorting to litigation. First, it’s important to know what you can and cannot request so you do not waste your time requesting records that are not subject to FOIA.

What you can request

Police data on homicides and violent crime

In 2019, reporters Sarah Ryley, Jeremy Singer-Vine and Sean Campbell published Shoot Someone in a Major U.S. City, and Odds Are You’ll Get Away With It, using violent crime data obtained by making FOIA requests to over 50 police and sheriff’s departments across the country.

At first, the reporters were requesting data on “homicides and nonfatal shootings.” However, they learned that “nonfatal shootings” is not an official classification used by many law enforcement agencies, so they had to shift gears and instead request data using the actual classifications of “murders, robberies and assaults.”

Using the data, they then identified non-fatal shootings by looking at weapons used and injuries resulting from the incident. From this, they were able to document how (in)frequently shooting cases are actually solved.

This is an important reminder to request precisely. Agencies will not always guide you by interpreting what you might have meant or giving you more than what you asked for. Amend and tailor your request to mimic the fields they do have.

Reflecting on the yearlong project, Ryley published a list of key tips for requesting police data, including that requestors seek:

• All fields with non-exempt information, “including but not limited to” [fields that should definitely exist];

• All identifiers or primary keys that identify unique records or and link database tables together;

• And all documentation of the database’s tables.

For the precise language Ryley uses in her FOIAs as well as examples and other tips, see The Trace guide on requesting police data records.

Employment history and misconduct records

Records detailing officer employment history and misconduct records can be difficult to obtain, in large part because of the power that police unions wield to protect their members from scrutiny.

This often includes their advocacy for police contract provisions which explicitly call for the erasure of disciplinary records after a certain period, such as four to five years. A 2017 Reuters investigation of police union contracts found that suspensions were erased in three or fewer years in 18 out of the 82 cities investigated.

Many police departments particularly attempt to restrict access to misconduct allegations or investigations which do not result in disciplinary action, claiming either privacy concerns under Exemption 6 or that the information is predecisional and deliberative under Exemption 5.

Over the past five years, and especially following the widely publicized police murders of George Floyd and Breonna Taylor, there have been some shifts towards greater transparency. For example, New York state legislators voted in June of 2020 to repeal Section 50-a of the New York Civil Rights Law, which previously barred police disciplinary records from public access.

Following the repeal, the NYCLU requested complaints against members of the Syracuse Police Department, including unsubstantiated ones, going back to 2000. Though the police department denied the request and attempted to argue that the repeal of 50-a did not retroactively apply, the court disagreed, instructing Syracuse officials to release the records to the NYCLU.

Access to police misconduct records varies by state and jurisdiction. To see how your state performs, see WNYC’s detailed breakdown by state.

Complaints

Police complaints can be used for incredible reporting, as exemplified by the Invisible Institute’s Citizens Police Data Project (CPDP). The CPDP uses FOIA requests to obtain complaints made against Chicago police officers, currently including records from 1988 to 2023.

Complaints can reveal crucial information, such as identifying officers who receive a high volume of complaints but continue to be employed by police departments.

The project was made possible by Jamie Kalven’s transformational judicial win in Kalven v. City of Chicago (2014). In the case, Kalven argued that the city must respond to his FOIA seeking CPD’s investigation records into certain civilian complaints made against police officers.

When the state appeals court instructed the city to fulfill Kalven’s FOIA request, everyone expected the city to appeal to the Illinois Supreme Court. However, in a major policy shift, the city did not appeal and gave Kalven the records.

The precedent this set in Chicago was groundbreaking: it meant that allegations of police misconduct are now considered public information in Chicago.

“It’s a big deal, and I don’t think there’s another jurisdiction in the country that has the same level. And it really matters, and people use it all the time,” said Kalven.

However, that doesn’t mean that it’s easy to access records, even in states like Illinois with robust FOIA statutes.

Despite obvious public interest in police misconduct records, a comprehensive review by the Pulitzer Center found that records were secret or difficult to access in 32 states (see how your state did).

In many cases of closed or restricted access, state agencies exempt misconduct records from disclosure to protect the privacy of officers. In some states, officer records are closed except in the case that their behavior led to a high level disciplinary action such as firing or suspension.

Joining records

According to the Invisible Institute’s lead FOIA journalist Sam Stecklow, whom Kalvin refers to as a ‘FOIA ninja,’ the biggest challenge with getting police misconduct records is that the data is so dispersed across different jurisdictions.

“What’s collected at the central level by essentially any state, with very few exceptions, is so basic as to be useless,” says Stecklow.

This means that assembling a statewide database takes a huge volume of FOIA requests to different police departments. Then, once data comes back, it requires a lot of data cleaning and matching to connect police officers who have moved from one jurisdiction to another.

Building on the foundation laid by the CPDP, Invisible Institute’s next horizon is the creation of a National Police Index. The tool currently publicizes police employment records in 23 states, allowing anyone to track police officers who move from one location to another to avoid accountability for misconduct.

In some cases, police officers who are accused of misconduct are not fired or disciplined, but instead agree to leave quietly without forcing the agency to conduct a full investigation and do all the accompanying costly paperwork. In exchange, the officer’s misconduct is wiped from their personnel records. These exchanges are formalized via “clean record agreements.”

An investigation last year by the San Francisco Chronicle and UC Berkeley’s Investigative Reporting Program uncovered over 295 clean record agreements by at least 163 police agencies across California. Officers whose records are wiped clean are able to pack up and move to a new location and apply for jobs at other agencies, without their new employer knowing the reason for their departure.

While the National Police Index data only shows the reason for departure when provided by the state, it can help identify officers who have moved from place to place, allowing researchers to track such “wandering cops,” as done by The Utah Investigative Journalism Project last year.

Emails and communications

Requesting communications through FOIA can be simultaneously very fruitful and also very frustrating. Luckily, MuckRock has put together a guide to help you navigate the nuances of email requests.

One type of communications request that can be specifically useful when it comes to law enforcement is a request for emails and texts between law enforcement agencies and outside actors. Requests of this sort can provide insight into the kind of pressure exerted on agencies and about the opinions and media that come across their desks.

No More Deaths/No Más Muertes (NMD) is a humanitarian aid organization that works to end death and suffering along the Mexico-U.S. border. In June 2017, U.S. Customs and Border Patrol (CBP) conducted a militarized raid on a NMD station, resulting in the arrest of four people without legal status.

NMD filed a FOIA request to CBP for communications related to the raid. They discovered that it was preceded by an email expressing “concerns” about activity at the NMD station and urging CBP to raid the camp. NMD determined that the email came from Brandon Judd, the president of the US Border Patrol union, who exerted his influence with top CBP commissioners to call for the raid.

NEW DOCUMENTS obtained by #FOIA request indicate the US Border Patrol union—a pro-Trump, anti-immigrant extremist organization—provoked the agency to raid our humanitarian aid camp and clinic in 2017. The documents also reveal #BORTAC’s involvement in the raid (1/x) pic.twitter.com/6F5fifHWiG

— No More Deaths | No Más Muertes (@NoMoreDeaths) July 29, 2020

While you can certainly try to FOIA for all communications across a certain topic, providing a narrow time window and precise search terms related to a specific incident can produce transparency into the operations and decision-making processes of law enforcement agencies.

Surveillance footage: body cams, dash cams and security cameras

First, let’s talk about the challenges associated with requesting surveillance videos. Many agencies will look for ways to reject FOIAs of this nature by arguing that it would be an invasion of privacy to involved parties, would interfere with an ongoing investigation or that it is unduly burdensome to redact.

It should be noted that FOIA officers have to go through camera footage frame-by-frame for redactions. Keep this in mind when requesting videos: the more footage you request, the longer it will take the FOIA officer to process.

Now let’s talk about the benefits of requesting surveillance camera footage. While we love records, we also know that police departments can’t always be trusted to release documents that might reveal their own misconduct. Data and written reports are also frequently filled out with sparse information or with officer bias.

Sometimes body camera footage can be used to simply show that officers are not following their own policies for body-worn cameras, as revealed by The Michigan Daily reporter Sophia Lehrbaum last year.

The Ann Arbor Police Department (AAPD) was called in by the University of Michigan to help clear a pro-Palestine student protest encampment. In the videos obtained through Lehrbaum’s FOIA request, officers can be heard discussing the protests, before acknowledging the camera and shutting it off.

Although AAPD claimed the officer was not in violation of the body camera policy, the video quite clearly contradicts the department’s assertion.

Video can tell a story that is much clearer than an official report. It can also contradict an official police narrative in a powerful way, as did the dashcam footage released in the wake of the Laquan McDonald shooting by the CPD.

Jamie Kalven was the first reporter to publicize the existence of the footage and call upon the city to release it.

“When the video finally was released, it didn’t just impeach the official narrative with respect to Laquan McDonald,” says Kalven. “It’s like the whole machinery blew up. The entire machinery of maintaining an official narrative through the mayor’s office and the police just blew up.”

Footage can also be packaged in a way that is more approachable to audiences who may not be interested in reading through the nuances of a paper trail.

A prime example of this also comes from reporting by Kalven. Not even four years after the shooting of Laquan McDonald, Chicago police shot and killed another Black man, South Shore barber Harith Augustus, during an ‘investigatory stop.’

In his reporting for The Intercept, Kalven used body-worn camera and other surveillance footage — obtained via FOIA by Chicago activist William Calloway — to reconstruct what happened during and immediately following the stop. Kalven was able to show that police officers began forming a narrative to justify the shooting only milliseconds after it occurred.

Invisible Institute and Forensic Architecture then created an exhibition titled Six Durations of a Split Second, which allows audiences to see key moments in the incident from different angles and different temporal lenses.

Using the same footage, Kalven and filmmaker Bill Morrison crafted Incident, an Oscar-nominated short documentary digging further into the narrative construction that took place following Augustus’s last moments.

The film is haunting, but it reveals more than any records or official statements would. Without FOIA — and many hours of work reviewing and analyzing the footage — the great injustice of Augustus’s death would not be nearly so well understood.

Incident reports

Mark Walker, an investigative reporter and former FOIA coordinator for the New York Times, suggests asking for three to five years of data on police calls for service and incident reports related to an arrest. “Because I want to see not just the arrest, I want to see every call that went out about it,” said Walker during a presentation for the National Press Foundation.

Another approach to requesting incident reports is to request a police log of events, such as use of force reports, and then identify certain trends or incidents that you want to know more about.

An example of this type of reporting comes from an ongoing collaboration between MindSite News and Northwestern University Medill School’s investigative reporting lab. Reporters for MindSite and Medill requested police logs of 911 calls that contained a mental health component from the 100 largest cities in the U.S.

Reporters identified almost 5,000 incidents of police use of force in response to people experiencing mental health crises. This use of force was disproportionately directed at Black people, particularly Black men. Reporters then submitted further public records requests to obtain incident reports for more information on cases that could provide a more human face to the trends they observed in the data.

What you can’t request, and how to improve your chances of success

Exemption 7

Exemption 7 is the most relevant exemption you’ll face when requesting records from law enforcement agencies. Exemption 7 has six parts, all relating to “records or information compiled for law enforcement purposes.” Of these, Exemptions 7(C) and 7(E) were respectively the second and third most frequently invoked exemptions in 2022.

Like Exemption 6, 7(C) relates to an unwarranted invasion of personal privacy. Exemption 7(E) additionally allows agencies to deny disclosure of techniques and procedures used by law enforcement for investigations and prosecutions, “if such disclosure could reasonably be expected to risk circumvention of the law.”

That “if” can be a good entryway for an appeal if the agency initially rejects your request. This sort of wording allows for discretionary releases, by which agencies may withhold records, but are not required to do so. In this case, you can push back and make an argument that the records in your request would not be reasonably expected to allow for circumvention of the law.

Exemptions 7(A) allows agencies to block disclosure of law enforcement investigation records when there is a “reasonable expectation of interference with enforcement proceedings.” Note that enforcement proceedings by the agency must be ongoing or be concretely likely to result from an ongoing investigation.

The privacy exemption

According to a report by the Congressional Research Service (CRS), FOIA Exemption 6 was invoked more times than any other exemption in 2022. Exemption 6 refers to personnel or medical records that would amount to an unwarranted invasion of privacy.

However, Exemption 6 is a balancing act, and there is an argument to be made that the public interest outweighs privacy protections in certain circumstances. The public interest is less likely to sufficiently outweigh privacy concerns for low-level government employees than for those who are typically public-facing.

Nailing the tone

Opinions differ on how exactly is the best way to approach interactions with the FOIA officer. One thing to remember is that the person on the other side of your email screen is a real person who is likely just doing their 9-5 job to the best of their ability. Not all officers deal in good faith, but it’s best to go in respectfully.

That said, you want to find the right balance between being overly accommodating and overly rigid. A 2010 study by journalist and University of Florida professor David Cuillier tested the varying success of “honey” versus “vinegar” approaches (referencing the adage that you attract more flies with honey than vinegar).

“Honey” FOIAs used friendly language, requested rather than stated, and generally adopted a tone of deference or subordination to the FOIA officer. “Vinegar” requests leaned on fear and threats, such as explicitly stated intent to litigate if the records were withheld and citations of potential fees for failure to respond.

The outcome of Cuillier’s experiments was that the vinegar letters received markedly more favorable outcomes: higher and faster response rates as well as lower fees for copying documents. However, the honey letters yielded more helpful, and less rude, responses from FOIA officers who went beyond their strict legal obligations to be helpful.

“The evidence shows you gotta stick up for your guns and demand your legal rights,” says Brandon Smith, the journalist who obtained video of the McDonald shooting. “And, be a hardass.”

This is not to say that you should be rude or mean spirited in your request, but use direct language and cite the case law if you feel comfortable doing so. Employing legalistic language can show that you understand your rights and will fight for access.

“You don’t need to be super antagonistic,” advises Stecklow. “If you demonstrate that you understand your rights and that you are likely to enforce them, and that you would rather resolve this amicably, I think that can go a really long way.”

Update: This article was corrected to reflect that the Invisible Institute’s National Police Index does contain a reason for separation when it provided by states. The article was also updated to attribute the ‘FOIA ninja’ nickname given to Sam Stecklow.

Image credit: Canva