Fighting for records and access

Michelle Mitchell, Palm Springs
The Desert Sun

Laws promising open, public records are typically not very good, or they aren’t enforced, but it is up to journalists to fight for access. 

“I’ve become convinced that if we don’t fight for these rights, absolutely no one will,” said Shawn McIntosh with the Atlanta Journal Constitution, who took an active role in Georgia’s recent re-write of its open records laws.

There is often a gap between the letter of the law and how organizations actually follow it, said Caitlin Ginley with The Center for Public Integrity.

Nearly half of states received a failing grade on providing access to records in the State Integrity Investigation:

There have been a rise in exemptions and few consequences for organizations that don’t follow open records laws, she said.

Fewer newsrooms are taking on the expensive and lengthy court battles to fight for records, putting reporters on the front line, said Elizabeth Ritvo, an attorney with Brown Rudnick.

Her advice to reporters to limit the frustration of getting records:

  • Know who is covered under Freedom of Information Act and don’t waste your time sending one to an organization not required to respond to it
  • Look for the information you need online first
  • Know what documents an agency is required to keep, and in what format
  • Know which branch or office keeps the records and send your request directly there
  • Be as specific as possible in your request. 
  • Request an actual document, don’t ask a question. An agency is not required to create a report for you.
  • Talk to the people directly involved before sending a formal request.

If, or when, you run into trouble, the panel offered some other tips.

Know your state’s law and use it in your negotiations with the agency. 

Don’t take a denial as the final word. Ask for a redacted version. Ask why a record is not being released.

"Impose some cost on the government for denying you access," said Jeffrey Pyle, an attorney with Prince Lobel.

That could be publishing an embarrassing story about the agency’s lack of transparency or the annoyance of Pyle’s “PITA” strategy - a reporter being a pain in the ass.

Often states allow the public to inspect a record at no charge, so if an agency is charging too much for copies or if you don’t want to wait for them to make copies, go to the office and inspect the records there.

Poor or poorly enforced open records laws are a problem that journalists need to fight to fix, the panelists said.

In some states, that means pushing for legislation, Pyle said. 

"Public records law is a muscle that will atrophy if it is not used and it is not enforced," Pyle said.

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