Media access to public records – Our right to know, #AHCJ19

Joanne Kenen

About Joanne Kenen

Joanne Kenen, (@JoanneKenen) the health editor at Politico, is AHCJ’s topic leader on health reform and curates related material at healthjournalism.org. She welcomes questions and suggestions on health reform resources and tip sheets at joanne@healthjournalism.org. Follow her on Facebook.

Health Journalism 2019 kicked off in Baltimore with an extremely useful two-hour workshop on public records.

The bottom line: There’s a lot of information out there. We as journalists have a right to an awful lot of it.

And we can get it (sometimes) if we ask properly, follow up persistently – and are willing to get just a wee bit pushy about it if that’s what it takes.

The workshop — assembled by Felice Freyer of the Boston Globe and AHCJ’s Right to Know Committee — included David Cuillier, Ph.D., assistant professor, University of Arizona School of Journalism; Charles N. Davis, Ph.D., dean, Henry W. Grady College of Journalism and Mass Communication, University of Georgia; Adam A. Marshall, Knight litigation attorney, the Reporters Committee for Freedom of the Press; and Sydney Lupkin, an award-winning data correspondent at Kaiser Health News.

All shared copious resources (some is reflected in this post, and much of it will be available on the AHCJ website). Cuillier and Davis are also co-authors of the Art of Access, Strategies for Acquiring Public Records, which will be out this summer in an updated, revised form. (They also have an Art of Access blog https://theartofaccess.com/

Marshall kicked off the session with an overview of how to get information under the Freedom of Information Act. See here at FOIAwiki and here at the Reporters Committee. Find more about FOIA at this government site https://www.foia.gov/.

Among Marshall’s key points was the importance of framing FOIA requests with as much specificity as possible. Casting a broad net will make it less likely that you’ll get what you are seeking. “Your request,” Marshall said, “must be specific enough so that a government employee familiar with the subject can locate the records with reasonable effort.”

Before you draft the request, “sit down for five minutes and think about every single word,” he said.

Though you may be using letterhead indicating you are from a news outlet, Marshall advised that you take the extra step and identify yourself as a journalist.

For media, FOIA fees are limited to duplication costs (and the first 100 pages are free.) To keep your editors and lawyers happy, file away meticulous records – copies of all your requests, submissions, correspondence and the responses from the government entity.

Don’t take “no” too graciously – while there is some information that’s exempt from FOIA, it’s not as much as some government officials may try to have you believe. And there may be alternative (legal!) ways of getting it. For instance, if you hit a brick wall at a federal agency, you may have better luck seeking the information from a state entity. (For understanding the intersection of HIPAA privacy laws and FOIA information access laws, see http://tiny.cc/FOIAHIPAA

Cuillier and Davis have a seven-step process for the record search, or as Cuillier put it, prying information “out of their grubbies.” (See the seven-step process – a very useful 32 page presentation, whether or not you like the cat pictures, here. And a longer 90-plus page version here.) Their guide includes lots of examples of stories that can be done with public records – ranging from tracking dog bites and rabies to sewer odor complaints to health-threatening environmental toxins – and lots of step-by-step hints on access.

One of my favorites was the idea of writing down someone’s name in a circle in the middle of a blank piece of paper, and then writing down all the different roles that person has — married person, business owner, driver, pet owner, property owner, pilot.  Each role will guide you to a different kind of record, which together can add up to quite a trove.

They noted that some kinds of records are way easier to get than others. You want City Council records? Usually, that’s no problem. Police crime logs – that’s a whole different matter. Sometimes you can fight back resistance in a friendly manner, and some times you have to get tougher. But that’s our job. Or as Cuillier put it – it’s our duty. We, journalists, are the FOIA police.

Patience is also required. Some reporters, he said, have taken to sending their FOIA requests birthday cards year after year.

Sidney Lupkin, an experienced data reporter at KHN with particular experience in probing the FDA and dangerous drugs, broke down information searches and database searches. (Those of you doing data searches should pay attention to the small print and get help from your organization’s data team if you have access to one.) Here’s her presentation PowerPoint, with some particularly useful tips about how to knowledgably counterpunch back if you are denied information under an overly broad or outright incorrect interpretation of HIPAA.

One thing she stressed repeatedly – whenever possible, is to make sure that you request the information in a format other than a PDF, which is not user-friendly, for analysis.

Lupkin also had the useful suggestion of checking FOIA logs before you make your request – somebody else may already have obtained the information you need. And sometimes you can find information without having to go through the frustrating FOIA process. Ask yourself, “Does this data exist online already?” Sometimes, the answer is “kind of.”

Lupkin noted that data requests – unlike other public records – have a few extra wrinkles. To cover your bases, you should include language such as “I am requesting all fields in the database. If there are any that must be withheld by law, please let me know so I can amend my request.”

1 thought on “Media access to public records – Our right to know, #AHCJ19

  1. Kay Miller Temple

    As one on the home front following the Baltimore activities by following Twitter #ahcj19 and the organization’s blogs here, I sure appreciate this blog in particular — which includes the information links.

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