FOI Laws in Action (Charles Davis tip sheet)

Part I: FOI laws in action

Stories using state records laws:

• Recession-proof government: In March 2010, the Syracuse Post-Standard examined New York state payroll records to find that the state hired more than 51,000 employees at a cost of $1 billion despite the governor calling for a hiring freeze.

• Criminal cabbies: Using driving and criminal records obtained under Georgia Open Records Laws, the Atlanta Journal-Constitution found that 72 percent of taxicab drivers had a serious violation on his or her personal or professional driving record, ranging from excessive speed to DUI. Over seven years, 622 taxicab drivers have had their licenses suspended, including 94 who currently have a suspended driver’s license. What’s more, the investigation found 63 taxicab drivers with criminal records in Georgia, including 10 who had spent time in prison. The charges included armed robbery, child molestation and kidnapping.

• Unsafe bridges: Using a database Inventory of Bridges from the Federal Highway Administration in 2000, tthe Boston Globe found that the rate of problem bridges – with structural defects or with design flaws that make them too narrow, poorly aligned with roadways or unable to carry larger vehicles – is the third worst in the country.  Nearly 40 percent of the 4,995 bridges in Massachusetts rate low enough to qualify for federal repair funds – a situation that state officials said posed a threat to public safety.

• Vulnerable airports: After the 9/11 terrorist attacks, CNN.com used a Federal Aviation Administration Enforcement database to find that the three airports where the terrorist attacks originated had the first, third and fourth lowest weapons detection rates among the 25 largest U.S. airports.

• Drivers of death: In April 2002 KIRO-TV in Seattle reported that a public transportation program for the disabled has covered up fatal accidents. The reporters managed to obtain documents revealing the flaws in the system — incident reports, autopsy reports, wrongful death lawsuits, trip reimbursement vouchers, etc. Another finding is that many of the van drivers had extensive felony records.

Stories using the federal Freedom of Information Act (FOIA):

• Campus sexual assaults. In February 2010 the Center for Public Integrity and a consortium of non-profit investigative reporting organizations gleaned federal and local data to find that universities routinely underreport sexual assault statistics and fail to adequately pursue cases.

• Airline safety: In 1996 when a ValuJet crash in the Everglades killed 110 persons, the Cleveland Plain Dealer had documents in hand showing what the government knew about safety problems at the airline. It had just completed a series of articles on safety problems at small airlines, a series that relied significantly upon records received through FOI requests to the Federal Aviation Administration.

• Rape in the military: In 1995 the Dayton (Ohio) Daily News used the Act to learn that women in the military endured cavalier responses to charges of rape brought against enlisted men and officers, many of whom had faced multiple charges. In 1993 that newspaper perused Occupational Safety and Health Administration databases obtained through the Act to identify the most dangerous work places in the country.

• Radiation victims: After the Albuquerque Tribune filed requests for information on victims of governmental radiation experiments in the early 1990s, Department of Energy Secretary Hazel O Leary began a departmental program to identify and make public widespread abuses of past radiation experimentation.

• Night accidents: In the late 1980s an Orange County (Calif.) Register reporter showed that hundreds of servicemen were killed or seriously injured in accidents relating to their government-issue night vision goggles, with the Pentagon attributing the accidents to “pilot error.”

• Workplace health risks: In 1985 the Public Citizen Health Research Group used the Act to find that government had identified 250,000 workers in 249 work places who faced increased risks of cancer, heart disease and other illnesses because of their work environment — but that it had not notified the workers of the risks.

• Government waste: Other reporters have used the Act to identify wasteful government spending. In the early 1990s a request by an Associated Press reporter led to a story about a little known $200 million federal program to advertise U.S. food and drink overseas. Monies were going to companies such as McDonald s, Burger King, Pillsbury, Dole, M&M-Mars and Jim Beam — all of whom had substantial advertising budgets of their own to draw on.

FOI At Work: Looking out for public hazards

1. 911 logs

   To spot trends in crime, medical calls and response times by police officers and fire trucks. They typically list time/date, location, call type and responding units, and are public in most states (911 tapes are also public in all but a handful of states).

2. Air quality

   Air quality violators are fined by county and state air quality departments. Check environmental agencies to find emissions violations, dust complaints, etc.

3. Arrest reports

   Available at local law enforcement offices, usually from a public information officer or officer in charge. If the case is still under investigation (someone’s still on the loose or they haven’t forwarded the information to the prosecutor yet for potential charges), then police may keep some of the information secret IF it would harm the investigation, Police sometimes don’t apply that balancing test and say everything is secret if it’s still under investigation, but they are supposed to be able to demonstrate that the information would hurt the investigation.

4. Arrest warrants

   An arrest warrant is signed by a judge authorizing the arrest of someone for probable cause. It usually allows police to barge into a house and make an arrest when there is reason to believe the person has committed a crime (drug house, homicide, etc.). Often warrants have a lot of information because police are trying to justify to a judge the need to arrest the person. These are similar to search warrants, which also require justification and approval by a judge. Warrants are usually made public once the person is served (arrested or searched), or when it appears it won’t be able to be served (the person skipped the country). Warrants are typically kept in criminal files at the court clerk’s office.

5. Bridge problems

   To assess the safety of bridges in the community. Inspection records are maintained by states and the Federal Highway Administration (http://www.fhwa.dot.gov/bridge/britab.cfm – click on “Download NBI ASCII files”).

6. Campus crime information

   Thanks to the federal Clery Act (a.k.a. Campus Security Act), if there are serious crimes happening on a campus that information has to be made available to the public. If you’re wondering who got arrested at that fraternity date dash last weekend, but no one’s talking, you can go to the city or campus police department and put in a request for an incident report or check out the crime log. You can also look up statistics for universities around the nation by searching this U.S. Department of Education Web site.

7. Code enforcement

   Code enforcement records detail noise violations, illegal businesses in residential zones, illegal dumping, huge signs and other problems. Check with your city code enforcement agency.

8. Crime log

   A barebones list of incidents, usually including address, time/date, one-word description, and disposition. Also called a “police blotter.” Basic crime records and statistics, as well as traffic accident information by intersection, are often put online by police. The FBI keeps crime statistics (Uniform Crime Reports) for all cities, and provides data online for cities over 100,000.

9. Disease control

   County health departments often keep epidemiology reports documenting outbreaks of disease.

10. Environmental hazards

    Toxic release inventory information provides what bad stuff different companies and industry release in your community. A good site to find that EPA information is at the Right to Know Web site. State governments also monitor other environmental hazards, such as leaking underground gas tanks and groundwater contamination.

11. Fire incident reports

    To monitor fire departments and spot trends, such as arson, dangerous homes, public buildings that are hazards, etc. Check with your fire agency.

12. Hotel room inspections

    County or city health departments often inspect hotel rooms to make sure that the towels and sheets are changed, and that the other parts are cleaned well. Check inspection reports for your favorite hotel.

13. Pool inspections

    County health departments inspect public pools and spas to make sure they are safe (chlorination levels, fencing, etc.).

14. Restaurant inspections

    To make sure the public is protected from unsanitary conditions at restaurants and other venues. Find the worst restaurants, as well as any other public eatery, such as grocery store delis. Check your city or county health department.

15. Sex offenders

    In most states it’s easy to look up sex offenders (the most dangerous ones, usually level 2 & 3) online. Just Google your state and “sex offender registry” and you should be able to find your state’s site, which typically allows you to find sex offenders by zip code or other search functions. Note that a variety of studies have found registries to be relatively inaccurate, so the person may or may not actually live where the registry says the person lives. For registries: http://www.publicrecordfinder.com/criminal.html.

16. Stolen vehicles

    Request stolen vehicle data to analyze popular makes, models and locations of car thieves. Some states even provide an online searchable database where you can put in a license plate number to see if the car has been reported stolen (if you see a car abandoned on your block).

17. Train wrecks

    To identify the most dangerous train-road intersection in the community and other trends. The Federal Railroad Administration provides train wreck data back to 1975 online for downloading and analysis (http://safetydata.fra.dot.gov/officeofsafety/). Click under “Downloads” on the toolbar,  “Accident data on demand” then choose “Highway Rail Accidents.” Choose a year, your state and a format (Excel).

18. Truck accidents

    To identify trouble spots in the community where semi-trucks tend to crash and burn (particularly on interstate highways). The U.S. Department of Transportation collects accident reports involving commercial trucks over 10,000 pounds. Can also get federal data from the U.S. Department of Transportation Federal Highway Administration.

19. Water quality

    Counties and cities measure drinking water quality and provides those results in reports.

20. Weather

    To examine trends in climate change in the community and compare weather conditions in one neighborhood to another (weather can vary among different parts of town because of elevation, topography and pavement effects). The National Climatic Data Center provides tons of data summarizing temperatures, rain, wind and other conditions for each individual monitoring station going back more than 100 years. The agency also has a database of storms, including tornadoes, hurricanes, snowstorms, flash floods and drought. See http://www.ncdc.noaa.gov/oa/ncdc.html

FOI At Work: Consumer awareness

1. Bank records

   To examine the saliency of your bank. While an individual’s bank records are secret, as well as most state banking department records, many documents filed by enterprises with regulatory agencies are public.

2. Broadcaster files

   The Federal Communications Commission requires broadcasters to keep records available to the public, including educational programming they are required to air. Should be available at the station. Request complaints about TV shows, collected by the FCC.

3. Charities

   To find out whether someone asking for money is registered with the state. Secretaries of state or attorneys general collect information about charitable organizations. For more detailed information about non-profit charities, see the entry on “non-profits” below.

4. Child-care complaints

   To assess how well child-care (daycare) is handled in your daycare. Check with your local health department or state health department.

5. Doctor discipline

   Disciplinary records against doctors are usually public, provided by a state licensing board.

6. Gas-pump inspections

   To make sure gas stations aren’t ripping off consumers. Check your state office of weights and measures for gas pump inspection data, as well as many other types of consumer measuring products that are inspected (e.g., store pricing scanners).

7. Incorporation records

   To find out who owns a business. Look up city business licenses at the finance department of your city, or state articles of incorporation at the secretary of state. This is helpful if you are trying to figure out who is really behind a business name.

8. Lawyer discipline

   To find lawyers who have been disciplined. The state Bar often provides online a lawyer locator online and reports for each year detailing lawyers that have been reprimanded, suspended, disbarred and reinstated.

9. Medical devices

   To identify medical devices that have failed, how they failed and the manufacturer. The “MAUDE” database is maintained by the U.S. Food and Drug Administration. Also maintains the Adverse Event Reporting system that flags safety issues regarding pharmaceutical drugs. Check out http://www.accessdata.fda.gov/scripts/cdrh/cfdocs/cfMAUDE/search.cfm

10. Non-profit 990 forms

    To make sure non-profits are actually not out to make a profit and just using 501c(3) status to avoid paying taxes. Also can find a variety of information about non-profits’ income, expenses and officers through the 990 forms they file annually. To see 990 forms, go to www.guidestar.com. You have to register but most of the site is free for basic information.

11. Nursing home inspections

    To identify unsafe nursing homes. Can get comparisons nationally by Medicare.

12. Price-scanning inspections

    To assess which stores might be ripping off consumers. Most state departments of weights and measures inspect store pricing scanners to make sure they are accurate.

13. Product recalls

    To monitor the safety of consumer products, including food and medicine (FDA), consumer products (CPSC), meat (USDA), cars (NHTSA), pesticides (EPA) and boating safety (Coast Guard). Check out recalled products for all these agencies.

14. Professor course evaluations

    Some public universities provide course evaluation data online that students fill out. Or, request grade distribution of each class to find the easy profs/majors and the hard ones, or identify grade inflation over time.

15. Salaries

    Names, titles and salaries of public employees are available nearly everywhere. Also, get overtime pay and actual pay (not just budgeted salary) to find janitors who make more than the mayor.

16. Taxi inspections

    To assess the safety of taxis. Check the regulatory agency in your state that monitors taxis.

17. Unclaimed property

    To see what property and funds are owed to citizens by the government (and has gone unclaimed). Request records from your state department of revenue.

Holding government accountable

1. Appeals

   When someone objects to a decision a government agency makes, they often are able to make an appeal. Some agencies have formal appeal procedures, depending on the issue. Check with the agency’s attorney.

2. Audits

   To monitor problems in government agencies, particularly financial woes. Check with your state auditor’s office. Look carefully to find any irregularities – often clouded by vague terms and wishy-washy language. Ask to get more details.

3. Budgets

   Detailed budgets are available before and after approval. Can be helpful to see what departments are getting more money over time and what areas are getting less funding. Get them from the agency’s budget officer.

4. Calendars

   To find out how top officials are spending their time. Look at their calendars, or day schedules, to see who they are meeting with and the extent of their workload. Should also be able to get travel expenses. Request from the office you are interested in, such as the mayor’s office if you want to see the mayor’s calendar.

5. Claims

   If someone feels a government agency owes them compensation for damages (slipping on a sidewalk, hit by police car, etc.), they often file a claim before filing a lawsuit. Check with the risk management officer or attorney for the agency.

6. Contracts

   Allows you to find out who is benefiting from government projects. Should include the amount agreed upon, the amount paid (often more), who the money went to, etc. Contact an agency’s business office.

7. Corporate records

   To spot connections between public companies and identify key officers. The federal Securities and Exchange Commission provides a wealth of information on public companies online, including initial public offering files (Form S-1), quarterly reports (Form 10-Q), annual reports (Form 10-K), and top officer information (Form DEF 14A). Can search EDGAR, http://www.sec.gov/cgi-bin/srch-edgar. To find owners and incorporation dates for companies see your state’s secretary of state or city offices.

8. Discrimination

   To track trends in discrimination. Agency equal opportunity programs enforce equity policy for the city to make sure employees aren’t discriminating based on race, age and other factors. While identities might not be public, general description and trends should be available.

9. E-mail

   To monitor government function and make sure business that should be conducted in public isn’t being handled secretly via e-mail. Work e-mail for public employees is considered public in most states.

10. Elections

    To see who is funding candidates and campaigns. Campaign finance records for local candidates are available at local election offices, and state campaign data is kept by the secretary of state. Federal candidate information is maintained by the Federal Election Commission. National data also are kept by Project Vote Smart and the Center for Responsive Politics.

11. Employees

    To identify cronyism and find former employees. Can request records of employee names, titles and salaries. Employee home addresses and home phone numbers, however, are generally not public.

12. Expense reports

    To monitor government spending and see if government employees are cheating the system. Check with the business office of an agency. Can ask for credit-card logs as well.

13. Legislative records

    To examine the voting records of legislators, bill wording, legislators’ attendance, and find people who testify on issues. Find bill and vote information online. In some states, legislatures are subject to their state public records law, but most legislatures have exempted themselves (as Congress did for FOIA).

14. Meeting minutes

    To monitor city councils, school boards and other government bodies. Meeting notices, agendas and minutes are almost always public. Check with the clerk’s office at the respective agency.

15. Public records requests

    To find what public records are being requested by businesses, citizens, government employees and journalists. Request from the public records officer copies of the public records request and any log used to track requests.

16. Retention schedules

    To find out what records an agency keeps and when it purges them. Most public agencies have established retention schedules to determine how long they will keep different records. Check with the individual agency to find its retention schedule, usually held by a clerk or records officer.

17. Property tax refunds

    To find whether someone is scamming the system by setting up dummy corporations to get bogus property tax refunds. Check with you county assessor’s office for assessment appeals, or the treasurer’s office for refunds.

18. Telephone records

    Telephone records of public employees on their work phones, including cell phone records, can identify corruption and questionable connections by listing who the employee talked to along with the time and date. In some states, such as Texas, courts are ruling that messages regarding work topics of public officials are open, even when sent on personal cell phones.

19. Use of force

    Look at how police use – or overuse – force during arrests. Each time an officer uses a choke hold, gun, taser, police dog, baton or other use of force a form is filled out. Get them from the police department.

Planning your FOI request

Public records laws require government agencies to provide anyone the right to look at a record (or pay for a copy) that is held by a government agency subject to the law.

You can become fairly knowledgeable by reading a summary of your state public records law provided by the Reporters Committee for Freedom of the Press at: www.rcfp.org/ogg. Also, check your state open government coalition or press association for guides they might put out.

Here are some basics of access law:

• No law requires an official to talk to you, but records laws require agencies to let you see documents or data.

• “Record” generally includes any format of recorded material, including paper, audio tapes, video, data, e-mail, and even the electronically embedded properties information in a Word file. Be creative.

• Federal executive agencies (e.g., FBI, but not the Supreme Court or Congress) are subject to the federal Freedom of Information Act. State executive agencies, cities, school districts and other local public agencies are subject state public records law. Be sure to know the name of your state law, and don’t ask for a record from your local school district based on federal FOIA.

• Other laws may apply, such as the Family and Educational Rights and Privacy Act for protecting educational records or the Health Insurance Portability and Accountability Act for medical records.

• Some records may be kept secret if there is a law that says the record may be kept secret, usually to protect national security, privacy invasion, etc.

• Some laws and agencies require a written request.

• Agencies are required by law to respond to records requests within a certain amount of time, depending on the law. They may provide the records, deny them in whole or in part (legal reason in writing), or say they need more time.

• Most laws are discretionary, which means an agency can give out the information even if an exemption allows them to keep it secret.

• Denials may be appealed to the agency. A requester can also sue, in some states recouping his or her legal fees by substantially prevailing in court.

• When in doubt, ask for the record. It is up to the agency to prove it is secret, not for you to prove it is public.

• See the Access Resources (page 32) for more helpful guides and information.

Know the record

Identify exactly what you want to the best of your ability. Here are some tips for finding the existence of records:

• Check the agency’s Web site and see if the record is provided online. Or perhaps information is provided online about the specific record.

• Visit or call the agency and talk to a clerk or person who would know what records are kept that would have the information you need.

• Look for original blank forms that the agency keeps to know what kinds of information is kept and how it is kept.

• Look at an agency’s retention schedules or records indexes to find what kinds of records are kept.

• Ask to see the log of public records requests to see what other people have requested.

Request the record

• Avoid fishing. Try to limit your request to what you really want. If you simply ask for “all files relating to” a particular subject, you may give the agency an excuse to delay its response, and you risk needlessly running up search and copying costs. Do your homework. Go talk to the agency first.

• Get specific. Cite relevant newspaper clips, articles, congressional reports, etc. If the records have already been released, let the agency know the date, release number, and name of the original requester. If you are asking for a database, talk with the techies ahead of time to know exactly what data you are requesting and in what format. Tour the agency office and ask about what they are working on and specific documents they maintain.

• Ask verbally. Ask for the record verbally in person first, if possible.

• Be polite but persistent. The people on the other side of the counter don’t come to work with horns and cloven hooves. They are people too, and they are more likely to get you what you want faster if you are nice about it, especially at the beginning.

• Prioritize. Let the agency know if you’d like to receive information in a particular order. Materials could be reviewed and released to you in chronological or geographical order – or you may simply not want to wait for all the records to be reviewed before any are released.

• Submit a written request. If you anticipate balking, bluffing, or being passed around or put off, simply submit a public records request letter, which starts the clock ticking and requires them to act and stop passing you around or delaying. See some sample state public records request letters generated from online request letter generators.

• Choose your tone. Note the last paragraph of the request letter that threatens litigation. Threaten to sue only if you are prepared to do so and if they’ve indicated they will not cooperate. Also, consider whether the wording may create defensiveness or hostile undermining of your request (e.g., delays). Sometimes it’s better to attract flies with honey than vinegar. But at other times, coming in strongly and quoting the law can demonstrate you are serious and know what you are talking about (research indicates the threatening letter gets more agencies to respond).

• Decide on your own transparency. Legally, you don’t have to say who you are or why you want the documents. As a practical matter, you’ll probably have to tell them your name and provide a phone number so they can contact you. Also, some states have different standards for commercial users, so you might have to sign a statement saying you aren’t a commercial user (they don’t consider journalists as commercial users). If you don’t care if the agency knows why you want the information, feel free to tell them. It’s likely to speed the process and they might offer other information that you didn’t request. But if that would jeopardize your investigation, then don’t tell them. If they ask, “Why do you want that information? Are you going to write something negative?” Just tell them, “I don’t know what I’m going to write until I gather all the facts,” which is true.

• Go to the top. Sometimes going straight to the agency’s lawyers or top officials speeds things up. Clerks sometimes deny requests or stall as they try to make sure they don’t release something that will get them in trouble. Once the agency attorneys look at it and see it should be released, it often is.

• Keep records of records. Keep track of every step of your different requests. Keep dates, contact names, phone numbers and try to correspond by email so you can have written records of what was said to whom. Some requests can last years, so keeping track of details can help.

• Follow through. After you submit a request, always follow it through to the end, especially if they provide the records, even if months after you need it. Also, if denied initially don’t skulk away cowed. If you have a legal right to the information keep at it. How you treat requests and denials will affect how agencies treat requests in the future. Educate officials and get them in the habit of providing information to you and the public. It’s part of their job.