Transcripts For CSPAN Investigative Reporters Discuss Access To Government Records 20160705

[applause] jessica hello, i am Vice President on the board and the event chair. Welcome to everybody. We are excited and honored to have an illustrious panel of investigative journalists today. This is ethics week at the society of professional journalists, which is the National Version of the Deadline Club, which is the new york chapter. There is a lot going on in freedom of information, it is the 50th anniversary of the freedom of information act. One thing our National Society is proud of and we think is important is our Legal Defense fund just gave a 10,000 grant to a Nonprofit Organization in new orleans which has been consistently not giving over public records on public purchases. That is the kind of battle that is going on. You may know that under the obama administration, while president obama has promised incredible transparency, in fact there have been a Record Number of foia lawsuits under his administration. They have doubled this year from when he first took office. That is something our panel will be speaking about both on the national and local level. And you will be hearing about especially fights with new york city and new york State Government entities that do not want to give over records. You have especially nypd and the department of corrections, which we will be hearing about. It is an honor to introduce our board member of the Deadline Club who put this entire panel together. Where he is an investigative journalist with many awards under his belt with thomson reuters. Take it away. On a note, cspan is here so please use the microphone that will go around. As jessica mentioned, open records are important for journalists, but it is an underutilized tool. It is so difficult to get records out of the government. It can often take months or even years to get records, data, or documents. Pulled the mic closer. Better . T no problem. As i was saying it was a largely underutilized tool because it is so difficult, requested language for months and even years. They often arent in the format you asked for. Something i experienced a few days ago with a federal agency. We are going to talk about specific Horror Stories we all experienced in dealing with certain agencies, but also more general strategies with successfully filing an open records request. It can take time, it can lead to some amazing stories. Let me introduce our panelists going from right to left. We have an Investigative Reporter focusing on data with the new york times. Tom robbins, legendary new york reporter, now Investigative Reporter and residents here and a finalist for Pulitzer Prize investigative reporting last week, so congratulations. [applause] and we have Jessica Hughes men, who is a reporter for the teachers project. Obviously focusing on education. And a lot of fun this last year with the City Department of education, which he will talk about later on. And we have justin elliott, who has done amazing work specifically on spending issues at the red cross, which he will talk about tonight as well. I want to thank the panelists for agreeing to do this, i promise it wont hurt too much. Lets jump right into it. Andy, what is the craziest response you have ever gotten . The craziest response . I have been cursed at, ive had agencies instead of routing my request and treating it like a request for information, immediately giving it in the hands of political operatives to be politically expedient for you to decide whether to release that information was beneficial. So they are not judging whether it is appropriate to release the information. They are deciding on the politics of it. That has been crazy. Right now we have a crazy request going on. It is a state request. And i have learned recently in certain states, if you want to file for public records than we believe that the story we are working on is a national story. In certain states you have to be a citizen of that state. Weve actually had to get a freelance citizen to be our representative while we file this request. Those are three of the more crazy the residency thing is a real problem. That goes beyond the things i assume you were expecting, foia is taking forever getting denied on things that you cant believe you are getting denied on. Getting responses back months later with things redacted that you cant believe were being redacted. I know you have dealt with a lot of new york city issues, im sure you have had some interesting responses. Crazy. A few years ago i tried to get the records of a top official in the giuliani administration. They did not want to give it to me and i understand why. What i was asking for would have been very embarrassing if i got a hold of it. They told me eventually that they were lost, that they had moved their offices and as a result they just couldnt find them anymore. They never responded to that one. It was a change of administrations. Giuliani was out, bloomberg was in. I refiled my original request with the newis time. Some of the same people were still at this agency. They called me and said we are finally sending all this stuff to you. They were sending it from william street downtown. While im sitting there i get this phone call eventually from somebody who says i think i have a box that is addressed to you. They said i dont know why this is coming to us. I said where are you, who are you . I said New Brunswick. New brunswick . Why do you have mine . Fedex dropped it off and we will send it back to you. I said im going to go and get it, im not going to take any chances. I will drive to New Brunswick. He said you dont understand, im in New Brunswick canada. New brunswick, canada. [laughter] and i never understood how that happened. My crack investigative talents failed me when i tried to get fedex to explain how they send this box to canada and sent it to cooper square. I did this story and if we have time later i will tell you about it. You have had interesting responses from the department of education and now you are in court. Why dont you talk about that experience. I requested several data sets in june of last year from the department of education. I kept getting delayed responses. Certainly the tactic of the department of education will send you a letter acknowledging your request. By april 25 they will get it to roll around. May 20 federals around exactly at 5 00 and you get another one. This had continued for months and months and months and finally in november, after i requested these in june i thought this is insane. And i filed an appeal, which was denied. They said we are really busy. I think because of my ignorance of the process i had only been reporting for not very long prior to joining the teacher project for not very long. Prior to joining the teacher project i was a teacher. I thought this just cant be normal, but it is. They said we deal with this all the time, do you want us to sue for you . I said yes. I didnt know this was an option and now i have a lawsuit against the city. It has been really interesting and i just they just keep coming back to the idea that we are just really busy. They have filed dozens of papers from the court. It can be boiled down to, we dont have time to deal with her and she is being annoying, is essentially what they wrote in their brief with the courts that they filed. It is not likely i will get my documents anytime soon. But my lawyers are very excited we are going to have a judicial ruling on whether or not the serial extension letters are in legal. Illegal. Legal are they contend that they are not. I dont understand the citys reasoning for that, but you never know what they will get away with. You had a similar experience even longer with fema that you talked about in a piece last month. I would give you a more amusing one. I did a foia request with the nsa soon after snowden came out. It wasnt for anything topsecret, it was for correspondence emails related to the nsa. There was a puff piece that have been done on the nsa and i got a call from the foia officer saying the nsa didnt have the ability to search through emails. It is literally in charge of sucking up data in most of the internet and plucking terrorists out of terabytes of data and claiming they dont have the ability to search emails for a pretty well narrow and dish for for a pretty narrow and welldefined topic. Why do this . Part of what we do as journalists is get information that we believe is in the public interest, that we believe is illuminating. Every time you do get something not every time. Most of the times when you get it probably does have news value to it. Journalists file some of the least amount as a profession. Corporations do it far more than we do. Journalist, when a is filing, it is because they believe something is there. We tend not to go on fishing expeditions, as a profession. Although, i have seen journalists going fishing expeditions and get some great things. But we do it because we think we are going to be adding something of value to the public discussion. You know, something that will be illuminating and regulatory. There are countless examples of where it has been crucial for doing those kinds of things. Atand in your career, it was dateline, how was that than for your project . Some of the biggest projects i have worked on has hinged on filing open records request. One of the ones you had asked me about before hand had to do with examining ticketing patterns in cities across the country. We used open records request to go to the biggest cities across america that were keeping ticketing data by race, of who is getting different kinds of citations. And what was us down it was, here we were we were in new york and filing requests across the country. We would sometimes be the first journalists ever to request the information. Kansas city or denver, nobody there had ever bothered to even ask, what to the ticketing patterns look like in our city . That is an opportunity for us, as far as the story goes. But it is also saddening. I wouldve hoped, particularly in more vibrant news towns like those, that other journalists would have been like, these are public records. Lets go check this out. It is a frustrating process, thinking it will take months for me to get anything. So, why bother . It is not going to work out and they are going to ask for a lot of money. What are the most common roadblocks you have run into with your requests over the years . They dont give it to you. [laughter] i am reallyquests, glad they are doing that lawsuit. It could be very helpful because that is all across new york. But you know, my when i first moved in terms of trying to the itormation out of agencies, is exactly what any just that. When you do file the freedom of information request, where does it go . It goes to the lawyers, right . Phoney baloneyeir jobs. They take your request and it slows it down right there. Often, it will sit for a long time as they evaluate it. Eventually, he might get something, but they are just driving you crazy. My working assumption is that most of the things i ask for our public records and there is simply no need. I say that as strongly as i can, to every young Public Communications person working for an agency. I say, explain to me why i need to file. If you want me to send you an email that says, under the freedom of information request, i am asking this, just that you can cover your ass, that is f ine. But i dont want to get involved with lawyers if i dont have to. I dont always win, let me be clear. T is an opening gambit but i encourage people to do that because i have been in the business long enough to know r has become a dodge. It is an effective tool to delay and completely avoid altogether, providing information. My interest is to be able to get the info. That is what i really want. I am looking for them to give me the reasoning as to why i need to go through this procedure. And then, if they do put me through the procedure, i am on their back like every single day. We will get to tactics, i guess. How many people have done that, i am just curious . Have people appealed their freedom of information request . The great thing about doing that is it just moves it from one lawyers desk to another. Usually from the Public Access officer who works for the county. But i found that just the fact that you have just rattled the cage that little bit can be effective. So, that is one tactic. It is really important. How many in the room here have filed open records requests . If you dont call her followup, you are never going to get anything. So, one of the things you have to set up for yourself is after you file a request, create a spreadsheet. It dings me when it is time to call somebody and bother them about, where is my information . When i was at the daily news, i spent almost two years calling the same guy every week to get records out of the department of health. And we got to know each other pretty well. He did not always take my call, but he knew why i was calling. We had the same conversation over and over again and after a long time, i got the request. You have to prepare yourself for that kind of effort he could give you quality time, you can jump in front of the line. Other people have filed requests you are not the only one. But if you become a little bit of a nuisance, they are likely to move a little more faster than they would otherwise. But tom is right. If you can get the information without filing a request, that is the way to go. That vortex,are in it takes a long time to get out of it. Jessica, so, what tactics do you use . They could say, it will cost you 10,000 to get that information, which is not uncommon. What do you do . So, i think, the best example i have for this is part of the lawsuit i have filed against the department of education. Forcity has a 311 call line premuch everything. One of the options is for parents of special needs students. There is a number they can call to complain about their students Education Plan not being followed in their school, or mistreatmentof their special treatment child. They try to get the situation resolved. So, i filed for those records to over a two year period, see which schools have the most complaints against them. Which teachers were most problematic. A lot of this information is protected under the federal privacy act. It governs what information can be released about students. I knew from the beginning that it would be heavily redacted. But there are certain things, like the name of the school and name of the Public Employees that cannot be redacted. So, i got a very redacted version of these records, which ended up being like 45 lines on a spreadsheet. And i thought, that is not even possible that you have only received 45 calls in the last two years on this hotline. That is impossible. So, i filed an appeal and in response to the lawsuit they were like, we did not give her a lot of the records because there is no easy way to redact it because the students name is in this massive box of text, where the operator just types and types and it types and types. In order to fully redacted, it will take 60 full Business Days of four people working 40 hours a week. They said, that will come into Something Like 50,000. I said, that is insane. You end up having to do, isecially with students you have to explain to people who are supposed to understand the law. Because the problem is, agencies just redact whatever they feel like redacting and then they stamp it. But they are redacting far too much. It obviously does not require 60 days of full work to a race some names. And they will raise more than they have to. They will contend that this is going to cost you additional money. So, you just have to argue the law with people who are supposed to know is the best. That has been my most effective thing. Also, you should start with the biggest request you can possibly make and then limit it afterwards. You never know what you can get and you can negotiate with them after they tell you no, ford is going to take this long to do it. And you say, what if i just take one year instead of towo years, or instead of all of these categories, i just do two. Jessica, what kind of roadblocks have you run into . . Ost, format, time how do you deal with those when they come up . I will give you an example from my experience a couple years ago. I was beginning some reporting in early 2014 about the american red crossresponse to superstorm sandy. One of the first things i do was thinking, the red cross is a private charity. But one of the first things i did was think about where the red cross might have had interactions with Government Agencies. One of them it turned out was the new York Attorney generals office. They had done a somewhat halfhearted investigation into how money was spent, money raised for sandy relief by charities wazs pspent. They had put out press releases about their findings, but they never put out the raw data. Pen records york [requeso office from the ags that they had gotten from the red cross. Maybe a month or six weeks later, i got a letter in the mail, saying something i had never seen before. It turns out the new york open records law has a provision existing material that has trade secrets. It turns out, the way this works is, if you ask for documents that might contain trade secrets that relate to a certain thirdparty, like an outside company or a nonprofit, the Government Agency will informed the third that you are seeking these records and give them the opportunity to reject on the grounds that it contains trade secrets. The letter i got said that the red cross had in fact, done this. They had hired a law firm that costs 1200 an hour or something. So, when we got this, my editor and i thought, what could the trade secret be if the red cross found some really effective way to respond to disasters and they want to keep it secret from the salvation army, or Something Like that . It may no sense. It made no sense. One of the things we can do that is satisfying and effective is to write about it. That is at the heart of the power we have. Ublic, it is aop website. So, we did a story saying the red cross was fighting this request on trade secret grounds. The story ended up going sort of viral and getting a lot of pick up online. And it is unclear whether it had any effect on actually getting the records, but a lot of people red cross employees, saw this story and found out for the first time that i was interested in this. I had my email address at the bottom of the story, asking for people with information or tips to just email me. Publishing the story ended up leading to a couple huge breaks in the reporting. Even if you dont actually get the documents, it can help shake loose information. For example, it can let people and the agency who might be sympathetic sources potentially know that you are interested. These things happen rarely, but i have heard of them happening. We mention redaction and exemptions and things like that. One of the most important things you can do as a journalist is to know the law. Know what you can have and what the exemptions are allowed under the law. A great resource for that is rfc. Org. Not only do they have a great resource on the federal level, but every state has their own statute. The reporters community has a great breakdown statebystate. You have to be a citizen to request records. What can they charge you for . I spent a nice hour on the phone with people in South Carolina a few months ago about records i am try to get from them about what they could and could not charge me for. I was able dramatically decrease what they were trying to make me pay. It is important to do your homework about the law before you file your request. In addition to that, you have to treat your open records request like a story, so you know it front words and backwards. One of the questions i have for andy, the you ever tried to seek the same information from an outside agency . Actually, i was just about to bring that up. I think we are actually in a battle right now. One of the things we are doing is something that has been done before, which is to look for precedent. Look for where the information has given up by an agency that is similar to what you are asking now. I found the is a way to help reduce costs. You have done it before and it did not seem to cost anything when you did this 10 years ago. It could be in an entirely different context. You were saying, president is a good thing to try to have if you can get it. But you were saying about you know, going outside the agency. One of the interesting things about our government is that it can have a paper trail that can lead to other avenues. I remember doing stories where we were trying to look at traffic accidents and fatalities. We were getting a lot of resistance at a particular state agency. By the state had to file that same information with the federal government. And there, you can get it for free. So, sometimes knowing that there is a document trail, that a state agency or a local agency might be reporting it up the chain or down the chain could lead you to try and figure out where in the chain you might be able to best get those records. Especially if you find somebody who has less skin in the game, less concern about what you are asking about. One of the questions i get from an officer is, why do you want this . You dont have to tell them that, it is not their business, but they want to know and why do you think they want to know . They are assuming that you are going to go after them. It is not a good thing to them that you are asking for this information. They put up all these roadblocks on cost, format, waiting two years to give us stuff, it is their assumption we are trying to screw them in some way. I am sure you have experienced that conversation more than a few times. Andrew there is this great phrase from these two old masters of investigative reporting, barlett and steele. They did these great takeouts in Time Magazine and wonderful books about changes in america. They say, have a document state of mind. To mean exactly what andy was just describing. If the road is blocked in one direction, it exists someplace else. I am a very local guy. My whole career i have been based in new york city. I get dizzy south of staten island. I stay here. So, i know new york really well. In new york, we are blessed with this unique agency that i hope this are familiar with, committee on open government. It is in albany. It is a division of the new York State Department of state. It is funded by the government under statute. They cannot give you as much as they probably would like to. There are only tee people up there. They are headed by this wonderful fellow named Robert Freeman. Over the years, he has been an enormous resource to folks like myself and anybody who has tried to dig records out of agencies. He has been there to try and guide you as to what you can do. But on his website, he has put together, and this is the heument state of mind piece, has 25,000 advisory opinions that he has written. He has them organized on the website by subject. So, if you are doing pulleys, you could go and look under police, and he has several hundred under the heading. At this point, most of them are digitized. You can read them from your desk. Not all of them. With the older ones, you can call them up and they will send them to you. It is exactly what andy was describing. Who else has been down this road . I cannot be the first person to want this information. I try to look to see who else has already asked for it and try to shape my request that way. The other piece of it and ben, you are the master of this, really every agency under new york state law is supposed to have a subject matter list. It is supposed to be up on their website. It is supposed to be available. Most agencies fail that rule. What it is is just what it sounds like. They are supposed to be accommodating us to let us know what records they have. One of the tramps or one of the problems with the freedom one of the traps or one of the problems with the freedom of information law is they do not have to create a record. If you go in and ask for something and say, i want every red nissan caught speeding at 40th street and 7th avenue. They have never done it. They are not going to create up for you. They say you are out of luck. But what they do have is access to records that you can shape in a way to fit your needs. One of the things that freeman is i think pretty brilliant at is being able to focus people in on what is doable, what is gettable. In the subject matter list, it lists exactly what they are supposed to have. If you ask from that list, it says here that you do have all speeding violations within midtown west or something. That is what i want. I want all the speeding violations of midtown west. And then you know the document and you are playing on their territory and they really cannot escape that one. They cant dodge it. But first, you have got to have the subject matter list. You have been good about scolding people to generate those. Benjamin every state is supposed to have it on their website. Some of them do, but as you can imagine, it is not very prominent on the website. It can take time to locate it. Left foilingare and new york has a freedom of information law, foil. At least then, you have a playbook of what they have available. Andy and tom are both alluding to this. A lot of journalists like to foia the foias. You send in an open records request for what people have asked for. When i was at the daily news and post, we used to do this all the time to find out who was asking for what. It can be a useful tool to find out some attorney for years ago asked for the same information, and now i am asking for it. So, dont tell me it does not exist. You have already done it before. Foild my foil. It is not a good feeling. Tom learned the hard way. Benjamin jessica, what resources have you come across for young journalists on open records requests . What kind of advice can you offer them on where to look for help . Jessica the Reporters Committee is a fantastic resource. They are stewing on my behalf. So, i cannot be any more grateful to them than it already they are great. Am. I would also echo that Robert Freeman is amazing. He will stay on the phone with you for an hour until you fully understand the extent to which you are owed these records or you are not owed these records. He is an incredible resource and very generous with his time. He filed an advisory opinion on my behalf with the department of education for these records prior to me going to the Reporters Committee for freedom of the press. It was extremely extensive. I have been able to use that advisory opinion as i know speak to the department of education about my request. It was helpful for me as a very new journalist to have that weapon in my arsenal. But i would also say that, if you are a student, the student oh goodness the Student Press center, i think that is what it is called. The Student Press law center. Lawica the Student Press center, it is wonderful. They are similarly responsive. They are specifically for student journalists. They can really help you figure out what exactly you should do and what resources are available for you. Before you foia anything in any state, i would read the Reporters Committee on freedom of the press breakdown of your state because it is stunning how different states are in the way they handle freedom of information requests. I think the reason i was so quick to start complaining and get up in arms about new york is the only other state i really filed meaningful Public Information requests prior to new york was texas. And they are, for some reason, far more efficient than new york in the way they handle freedom of information requests. There is an entire division of the Attorney Generals Office in texas dedicated to Public Information requests. They call you back within a business day if you have a complaint. Itause in texas, if you sue, is very common for judges to award your legal fees back. So, the state is monetarily encouraged to respond to your foias in a reasonable time. That does not exist in new york. And so, not only does the state not have any incentive to give you the information you are requesting that makes you look bad, they have no financial incentive to hurry along if you decide to take them to court because they will not reimburse you for your lawyers fees. You need to understand what you are up against before you file a foia. When you file a foia, make sure you are approaching it as if you are gathering evidence and remain professional at all times , as if at some point, he might file a lawsuit. The emails that you will send will come up in that lawsuit. Go all crazy and start cursing of the Public Information officer, that might feel great, but it is going to come back and on you. I sent i didnt curse him out, but i wanted to. I sent an e email that was Something Like, this is insane. It was pretty mild, all things considered. But it came back up. I lawyer asked about it and was like, that is a little embarrassing. Always stay composed because those things might come back to haunt you later. Benjamin justin, one thing that seems to happen with each new administration, whether it is cuomo they andrew say we are going to be the most Transparent Administration in history. Within a year, the opposite has happened. Why is that . What happens when they get in office . Justin i think obama is the best example of this. The obama administration, with is essentially over now, it has been an utter disaster on foia. By some measures, and a. P. Does a story every year, by some measures in terms of the size of the backlog of foias at Government Agencies and the number of lawsuits, obama has been worse than bush. This has gotten some recognition now. I wonder if he gets some pass from some people complaining about this because he is a democrat. The most obvious explanation for this is there is no real incentive for them to you know, lacking public pressure or pressure from our industry, there is no real incentive for them to increase the levels of compliance because often, you know, documents will it lead to damaging stories. Will lead to damaging stories. I think journalists and the industry should be much more aggressive in calling this out. At this point, we have had a lot of people call obama out. He should be asked about this at every interview. Agency heads you know, one thing i learned navigating a fiasco with fema recently, the office at thea federal level is set by the agency. So, it is not actually congress. I think there are appropriations issues with congress with sequestration that hurt foia office, just like it hurt all other functions of government. Within the agency, there are decisions made by people who run the agency about how many resources they want to put towards foia. At fema for example, i found out for a piece that i did that with there were 16 jobs in the femafoia office. But for the last couple years, only eight of them had been filled. There was no will to fill these jobs that theoretically there was money for. It was not a priority. I think we need to be writing about this, calling out, naming and shaming, asking agency heads about this, publishing their pictures. I think we could be a lot more aggressive than we are. I think the only way you are going to see politicians like obama making good on these lofty promises, that in this case he made literally on his first day in office, is if there is sustained public pressure. We are in a good position to exert that kind of pressure. Benjamin one thing that has happened, not just for filling the promise to be more transparent, some places are seeking to pass laws to remove things from the public sphere. In virginia, there was a reporter who wrote a series of embarrassing stories about cops in virginia moving from agency to agency. There would be a problem and they would move on to another agency, and then another problem. He would do this by getting paid well records from various agencies. So, how did virginia react . They tried to pass a law to make Police Payroll files private so you could no longer see the information. In pennsylvania, there is an effort going on to try to make emails deleted permanently after five days. These are the kind of things that are going on. We have to watch for these things and write about them when they happen. Just in another thing we should be doing collectively as an industry is suing more. Suing does not always work, but it often works. There are barriers to it. One of the biggest freedom of information stories of last year was there was an independent journalist in chicago that sued the Chicago Police department to get the Laquan Mcdonald video , which resulted in one of the biggest and most important stories nationally of the entire year. Somewhat shockingly, the papers in chicago did not pursue this. They had filed their own open records request, but it was left to an independent journalist to actually find a lawyer who was willing to pursue this on a pro bono basis. He ultimately did get legal fees. They sued and were able to get this video out. It lead to ultimately, i believe the da was voted out of office. It was just a massive story. Just briefly, a colleague of mine happened to recently pull data on lawsuits at the federal level. We were somewhat shocked to find in terms of journalistic outlets filing lawsuits, there were a handful year, like five or six. Half of them are by jason leopold, who is this journalist who does a lot of great and aggressive foia work. Most of the lawsuits are by advocacy organizations. Media organizations really are not suing very much. It does often work when they do. Benjamin speaking of data, andy specializes in using data and prying data out of government sources and other places. Where is different about filing a request for data versus filing a request to a report or Something Like that . Andrew at one level, it is the same. You want to make sure everyone understands you believe and it appears to be a public record. The biggest hurdle you will want to spell out is how to exchange information. They will often throw at you, it is in a proprietary database, it is really complicated, we dont have the staff and it will require hundreds or thousands of dollars of experts to come in to take care of all of this. And in some ways, you need to walk them through and say it is simple and heres how you can do it. Sometimes, what i do is, i will go and check out what kind of software the agency appears to be using. There he often, it is some kind of commercial, offtheshelf package. You will see when you read the documentation, there is an easy way to export it out into some kind of text file that is easily readable. You kind of walk them through that all of this is very possible. In your foia, you will have a few extra paragraph saying i want this in a common file format, like this, this, this or this. If that is difficult, i would be one happy to negotiate with whomever is your technical person and just try to make that not a barrier. Dont let the technology be a barrier. Because whether it is digitized somewhere on a you know, that you are going to be getting on a you, or get email to whether it is on paper, it does not matter. The fundamental belief is it is a public record. One of the things they will do, what they love to do with data, they will send it to you witin a pdf. I am sure you are familiar how fun that is to deal with. It will often be a major fight to get agencies to give it to you in an electronic format. The federal law and most states do have provisions. They are supposed to provide it to you in a way it is maintained or put it in the format you ask for. When you get the pdfs, there are ways we can convert those files into data we can deal with. Immediately go to the agency and say, no, that is not what the law says. If they dont play ball, file an appeal. Even though they gave you when you asked for, it is not in the appropriate format. You can file an appeal to try to force them to give it to you. A colleague of mine just today got a file from a federal agency got a file that was an image pdf, heavily redacted, of data. That caused all sorts of hell. You need to be very aware of this stuff when you are filing requests for data. It is not just data. You can often ask for anything electronically and their First Response will be, we only have that on paper. The next question should be, was a created on a typewriter . How was this document created . These are the things you often have to deal with. Speaking of fun agencies to deal with, you have dealt a lot with docs. New York State Department of corrections that runs the state prisons. Talk about your efforts and roadblocks you have hit. Tom a couple of them. I had been writing about prisons for the last couple years for the Marshall Project with the times. One of my rude awakenings came when i made the mistake of reading the new York State Department of corrections media directive, which they actually have up on their website. In it,delighted to read it said, that when an employee of the department of corrections has been disciplined and brought arbitration, and where the arbitration has been upheld and discipline imposed, that arbitration record will be released. I thought, this is great. I am home free. This is exactly what i want. What i was trying to find out was why there were so many guards at certain maximumsecurity facilities that seemed to be repeat offenders in terms of brutality against inmates. I knew the agency had tried to fire some of them. I knew they failed that, that they had been sent back to work by arbitrators. I wanted to look at those they succeeded in. So, actually had a sitdown with the commissioner in albany, in his office. I said, i am going to ask you for all the arbitrations from the correctional facilities. He said, great, we will give them to you. Have been upheld, we will give them to you. I filed a foia and i wait. They were embarrassingly silent. And it turns out, their media director had misstated the law. Even bob freeman, the saint of open information. I called bob and said, this cannot be true. He said, it is true. They had something that said they could give away a record that they cannot do. The reason they cannot is because new york state is one of a handful. Theres maybe less than 10 states in america that do this on behalf of their police and correction officers. We have a section in our state civil rights law, of all places, a section called 50a. You might have seen editorials about it in the times. But that part of the law says that basically, you cant know what the disciplinary history is of a peace officer. No matter what, you cant get that record. The reason was and this goes back a few years originally, the state wanted to preclude civiliffs lawyers in cases from using that disciplinary history to beat up on the stand, police of us is officers who were being sued on behalf of some incident that happened. It is not fair to bring up his past history, so we will make it beyond your bounds. They kept widening the law. First it was cops. Then they added Corrections Officers and firefighters. Then, they added emts. None of those records are allowed into the public domain. Bob freeman writes an annual report. Every year, he gives a report to the governor. Every year, he says the same thing. He says the single foremost need is to correct this atrocity, the fact citizens cannot know the disciplinary history of the performance of their own public servants. Cops, firefighters, correction officers. That hobbled my work, lets say, in trying to get a handle on what was going on. They threw a few more curveballs at me when i put in a freedom of information request, which i tried to get without doing a freedom of information request because i said, i know you keep the document, i know it is in this form, i know you updated all the time. Update it all the time. I want a list without names of what sanctions they have brought against employees. I knew i could not know who they were, but i thought i deserved to know what they were charged with and what happened to them. They fought me for eight months, i think, refusing to give it up. I went to the Correctional Association of new york. This wonderful organization that is 200 years old. It has the right under state constitution, believe it or not, to have access to our prisons and they monitor them. They got some of these records a few years ago. They showed me a copy of what they had. I went back to the department and a, you gave this to the Correctional Association. Department and i said, you gave this to the Correctional Association. And they said, they were not journalists. I said, i know they are not journalists, but still, you have given up the records. Eventually when i did get them, it came in and exactly the format ben just described. It was like 50 pages of pdfs. I said, can i please have this in the format you keep it . I can see this is a picture. They insisted to me they could not do that. Basically, take what you have got. I tried to go through these different formats to extract it, which i was finally able to do to make sense of it. But, they have got quite a few hurdles that just prevent us from understanding what goes on in law enforcement. The thing that justin said about at theion, when i was daily news, we had someone who is now general counsel at hearst. She is getting an award next month from the Reporters Committee. The Reporters Committee next month. Sues attitude was, everybody. The news was not sure what to make of her. As a result of her aggressive strategy, we opened up family court. Family court had been closed to reporters. You could not get in. There all these cases and they said we cannot talk about them because they are sensitive issues, which was true. But my goodness, this is part of what is happening to new yorkers. Lets be able to put a little bit of sunlight on it. Even filed a lawsuit. They settled rather than let it go before a judge because they knew they would lose on it. They were reluctant to give out any of the memos from the department of investigation. Ow, weaid, well, you kn just have advisory stuff. We dont have to give you the opposing memos. Eve said, well sue. And she did sue. As a result, if youre looking at something about some of you think has been investigated, file a freedom of information request about that person or organization to see if there are any closing memos. Burton,thanks to eve you can get them. Enough said. Benjamin two quick things. Speaking of peace officers, one of my favorite agencies to send requests out to is the nypd. If you have never filed a request and are inspired by our talk to start doing it the doing it, despite all of the Horror Stories we have been talking about here, do not start with the nypd. Do not make that your first foia request because you will not get what you are asking for. When they are sued and have to give something up, if you file a request the next day for the same document, they would deny you. They are extremely aggressive about not getting any information to anyone at any time. On a positive note, especially on the data front, despite what the great panelists have said here today, there has been some progress. Many jurisdictions now have open data sites. New york city in new york state both have separate sites where they post data. It is not necessarily the data we want, but it is something, a step in the right direction. The port authority, which i am sure you are all familiar with, they run the airports and bridges all around new york city. A decade ago, we asked for the payroll file and they said no because they were not subject to new york or new jerseys open records law. They had their own special law created in a backroom and would not give it to us. We threatened to file a suit. They caved and gave us the payroll file. We had fun with the information. Fast forward 10 years, now they post their payroll file every quarter on their site. Despite the difficulties that exist, and there are many, there has been some progress. With that, lets open it up for questions from the audience. Jessica has got mics. Raise your hand if you want to ask a question, she will bring a mic. This is great. I do want to talk a little bit about were you involved in the investigation, trying to get the records from the governor for sandy, the contracts . Wasnt that the record . Didnt the record try and get this . I was in at the record. Oh, ok. Could you go over the last thing that you said about the suing . You can actually foia that agency that was doing the suit. Is that what you said . Is the person who was suing so new or was that a ne york times employee . Anybody can do it. There are three stages on a foia request. The first is your file and we to see what happens. The second is when you have decided you have waited long enough, you appeal. The constructive denial. Did anybody use that phrase . If you dont hear back, you file a constructive denial. You did not answer me, so i am appealing this. The is the second stage and you might not get what you want. The third stages, having gone through all the steps, if you go through all those steps and still have satisfaction, you can fileto new york court and article 78, which is an appeal of a failure of an agency to be able to fulfill what you believe the proper mission is. New York Supreme Court and assay, i want my day in court. I want article 78. It always gets to the top of the docket because they have a certain urgency. The presumption is, this is something that has great importance. In most boroughs of new york, there are judges that just here article 78s. Then, you get down to business with them. What ben just described at the record is a more usual way to play it out. In other words, once you have the lawyer on the phone and ask, who do i send the lawsuit to . They figure out some way to come to the table. I think litigation is definitely part of the strategy and people should pursue it on every level. In new jersey, we have the government records council, which is notorious for always siding with the records keeper , rather than the person who is trying to get the record. But that is new jersey, i guess. [laughter] tom we dont have it a lot better here. One of the things i was going to add, jessica talked about the fact that the federal level, they are worried about having to pay fines. New yorks legislature actually passed that bill in the last session and the governor refused to sign it. He would not sign it. Jessica if i could , i would just add, i think more people then were aware of take action not beingeir foias processed in a timely matter. But the response of the agency is, lets just settle this. We dont need this to go to the judge. We will give you the records now. As soon as i filed my lawsuit, lo and behold, they started trickling the records to me. With this idea that if they gave me everything i asked for, by the time the judge ruled, it would be moot. I wish when people filed the suit would hold out for a little while to get that judicial ruling. You can have some judicial relief in that sense. And there is a precedent set for yes, what you have done is illegal. The future foias requests are expedited and are easy for other journalists. I just cannot believe no other education journalist in the history of the department of education has never taken legal action against them for delaying their foia request for years and years. But as soon as the agency says, i will give it to you in the next month, the journalist who wants to publish their story, says give it to me right now and i will drop it. But that makes it worse for the rest of us because there is never any ruling that says, you are doing this wrong. In the event any of you decide to sue, i would personally encourage you to stick it out and make it easier for everybody. Just to follow up really quick on terms of the timing and how long this takes. It takes a long time. If you are crafting a letter asking for information over a timeframe, dont put just say, from the starting date to the present date. You will regret it if you get it 18 months later. And it is already dated. Jessica and this bit me in the butt, really. I requested my files in june of 2015, right after the end of the 2014 to 2015 school year. The majority of the records request i am suing for ended in june of 2015. So, now i am going to get my records and they are going to be a year out of date. Hopefully, i can still use them. At the end of the day, that was my own mistake and i have learned quite a lot from that. [indiscernible] jessica i am waiting on summary judgment. She was asking if i have a hearing, but i dont. You know what, i dont know . I should probably know that off the top of my head, but i dont know who the judge is. Im waiting on the summary judgment. The final docket in state court. So, everything has been filed. They could take up to 60 days in a think it was just two weeks ago that it was all finished. Thank you very much for this. This is great. Could you talk about any insights on dealing with the fbi . And also, is it easier to get Historical Documents than more current, like going back 30 or 40 years . I have some experience foia ing the fbi, both as a journalist and here at cuny for a long time. I would have my students foia the fbi. My studentsfoias filed and broke stories on included finding out and documenting how the fbi used to track the noted journalist, david have hehaversham. How they tracked the nobel prizewinning novelist, alexander solzhenitsyn, and other people who lived in the united states. The fbi does keep records, particularly from the J Edgar Hoover days, when they would keep tabs on people, not because of any alleged crimes, but because of their social or cultural standing. Those files actually are public record. Although, they will be redacted and you will be looking at the redacted versions of those, thinking, this is crazy. Why is this persons name redacted from 1939 or Something Like that . But those kinds of things are public. Guys,would encourage you when you are interested in an historical fact, to look at foia ing the fbi. Get them anydo you quicker the last two times i have been involved in foias, they have gotten faster at it, which is shocking. There are all kinds of other things, too. I had a wonderful colleague i worked with. She is now at the wall street journal. We were working as Investigative Reporters and editors. We were going through a data set that is pretty common and a standard for journalists to work with. It is a supplemental homicide dataset ofhe every shooting and every death, every killing across the country. We were going through the dataset. When you get one you like to be meticulous. One of the things you want to go through is the form. What does the form look like that everyone should be filling out . The format had a thing that said, is it a policeinvolved shooting . Queried this dataset that was many years long and said , give us all the policeinvolved shootings or whatever their phrase was for that. There was not a single one in the dataset. Right . Interesting, huh . Jo and i each went our separate ways. Jos first job from where we were working as Investigative Reporters and editors was at the washington post. One of the first thing she did dataset,for the fbis including that column of information that had been redacted were excluded on the public version you could download for free. She downloaded it and was able to document how washington, d. C. Police were some of the most prolific at shooting people. And that series went on to win a pulitzer. Foia story an fbi for you. The things you want to keep in mind is the record retention policies. How long things are required to be kept. Many times at the state or local level, things are gone after 10 or 15 years, where they have been put in a warehouse somewhere. A fire in brooklyn destroyed a lot of records. There was a fire in the archives in d. C. That destroyed a bunch of military records years ago. Things sometimes get destroyed on accident or on purpose. Just briefly adding to that, there is the question of retention of emails. I am referring to the liquid and email server thing. Although it has been framed mostly as a story about classified information and whether it was handled properly, i think it is actually a foia story. The entire keeping of a private server is most offensive to me as a reporter because it has been documented there were foia requests they did not comply with. The Cuomo Administration here, emails definitely dont get retained if they are using personal email accounts. Over in new jersey, the famous bridgegate emails. There is an interesting back story on that. That was actually sent from a yahoo account to a gmail account. A newspaper in new jersey did an open records request that would have covered that email, and they did not get it. The only reason it came out was a committee in the legislature asked for it, or i believe subpoenaed for it. And the christies lawyers told them they did not want to obstruct justice. Basically, it is an issue in every state and with the feds. If you are looking for email correspondence, you want to do research and figure out the terrain on that. Terri. In, my name is go back to the new york ag, who said they would not give up trade secrets. Did you go through a legal motion . What would you say . Justin it was not actually the ags fault. The g wa the ag was following the law. The law says the thirdparty gets notified and has the opportunity to object, which the red cross did. There is a process where i can respond. And i did without a lawyer, i did my best to write legally. I responded, yes. There was a process where i was writing to the ags foia office this. As adjudicating what actually ended up happening was many months later, the red cross ended up withdrawing their objection. I dont know why, but probably because it was a total pr disaster. I ultimately did get some of the records and they turned out to not even be that interesting, which made it even crazier that they had hired gibson dunn. I mean there was some interesting material there. There was no giant, smoking gun or anything, but i did ultimately get the records. Try to comen dunn back to you and talk to you . Justin the red cross hired gibson dunn to argue on their behalf these records were trade secrets and therefore, i should not get them. It was my actually it was not actually in a court, but there were letters written explaining why i should not see this stuff. But i got it because they withdrew their objection many months later unilaterally. Benjamin any other questions . Please raise your hand. A couple of questions. Sorry. Jessica, you said, dont put the date on. What is the alternative, though . Because you do not know when they are going to answer it, do you . Presentyou just say day, so they have to give you everything up to the point at which they return the documents to you. That is far better. Documents to you. That is far better. I think it might encourage them to get it done faster because the longer they wait, the more documents they have to give to you. Another question was about appealing if you dont get a response. With the federal foia, how long shed you wait before you appeal if you dont get a response . Justin i can answer this because i happened to be talking to someone at the Reporters Committee. The statute says they have 20 Business Days to respond. That essentially never happens. You will get an acknowledgment of receipt but get documents within 20 days. It turns out on the federal level, some agencies will respond to an appeal of what tom was noting. It is called constructive denial, them not responding within 20 days. Some agencies will not respond to such an appeal. It varies agency to agency. You have to do research to figure that out. Maybe talk to somebody that has foiad that agency before. On the federal level, it varies whether you can do that. I have one other thing. One other tactic. We talked about suing. A lot of people and institutions dont have access to a lawyer or it is too costly. I think there are tactics you can use short of suing. One thing you can do even before filing the request is just to call the foia office and try to create some kind of relationship at first with the foia officer. The officer is sometimes the problem but often not. You should keep in mind there is a human being processing your request. They have a lot of useful information. I started before filing calling them talking about what im thinking about asking for, asking for advice on how to craft the request. I have had some luck with that. They are not always responsive but often are and are appreciative youre talking to them like a human being, even though in a few months you might be angry and frustrated. I would recommend that. Jessica if i could add to that. That is a fantastic idea. I wish i had learned of that earlier in my fledgling career as a journalist. In the new york City Department of education, that tactic is not even possible. If you are a member of the media, they will not allow you to speak to the foia officer. The officer could be a sock puppet for all i know. I have never seen or spoken to him. I started documenting all the times i called him directly. By the time i filed, i had attempted to contact him more than 35 times. He never returned my calls. He forwarded my emails to the press office. It was this very strange triangle of communication. Under new york law, there is no provision that requires your able to speak to the foia officer. That is one of the reasons i ended up suing, because there is no relief. You cannot get a good explanation for why your foia has been delayed because you cannot talk to the person responsible for delaying the foia. The City Departments are incredibly multilayered in that way. It makes things very inefficient. If you think it is heading in that direction, you want to stop calling them and doing everything an email so you can get the responses in writing. It may seem ridiculous to you. You want those in writing for what you might be doing later on. That can sometimes frighten them as well when you ask for that. I had a question about broader uses of foia. A lot of the work we think of as being somewhat public, federal contractors would not be subject to foia because it is not a Government Agency. I am in hearing how you have been able to use foia to your advantage to get information about these other peripheral figures interacting with government but are not a Government Agency themselves. Particularly, justin, if you dont mind talking about the red cross and the attorney general investigation. Justin briefly, when i was starting that reporting a couple of years ago, i think this is a good thing to do when youre starting any long project. You want to get the foias out the door first or as soon as you know enough to know what you want to ask for. The red cross is a nonprofit. They are private. You cannot foia them. You want to ask a simple question. Where does this entity indirect with federal or State Government . I did an open records request to the fema, the new york a. G. s office, and the Emergency Management offices of all the states where sandy happened. My fema request, i still have not gotten anything back yet. It was over two years ago, which is another story. I did get stuff back from new jersey relatively quickly and from new york later. But i did get stuff back. I was asking for correspondence between and it depends on the agency how you want to craft it. Essentially, correspondence between anyone with an email at red cross and individuals involved in the sandy response. There are a lot of other examples. If you are looking at or reporting on a privately held company, a lot of work on Koch Industries which is privately held, even though it is huge, has been through foia work about its interactions with various Government Agencies. That is a very good tactic. I think most of the good stuff would be thrown away. Some of we have to get the fires there. Are we suspicious . Like richardwas nixon who want to to keep the tapes and so forth. Sameck kennedy was in the situation he would have had a on fire on the lawn. I dont know about that. It gives me me an opportunity to talk about my favorite freedom of information request. We can talk about how this law has emerged over the years. It wasnt much of the law when he got passed in 1966 because every agency had the right to say it is not relevant, just to turn it down. A couple of things happened. It completely changed the public tenor about this. This is my favorite freedom of information request for it was made by a group of people in the town of media, at sylvania. They knew these were antiwar activists who knew that the fbi was keeping files on them and was disrupting their organizations. They knew that they could not get it under any open records request. They decided to open the records themselves. You can read this story and a wonderful book called the burglary. They broke into the fbi office in media, pennsylvania. They learned how to pick the lock and they waited took out all the records they can find. They sent them to every congressman on the committees that oversee the fbi. Proving exactly the point. One of the journalists who got what they sent out was getting carl stern. Whose name is not known widely anymore but i tell my students about him because he was one of those heroes in a small way. He had a record state of mind. He looks in the corner of one of these fbi memos that had been purloined. It had the name cointelpro. He said it sounds like it stands for counterIntelligence Program. I dont know what it is. He was enough of a egg player. He worked at nbc. Hoover was dead by that time. Patrick ray was head. He had lunch with patrick ray and gray turned gray. He said we cant talk about that , we dont do it anymore. Carl stern filed a lawsuit and found out about this astonishing program, which if this is news to folks i would say it is worth , taking a look at through the book i mentioned are other ones. That led to the Church Committee hearings. That led to opening up records from the fbi. The Intelligence Program was a program the fbi was running to disrupt black organizations, new left organizations. They were sending out poison pen letters. If you saw the Martin Luther king movie. A couple of years ago, the scene where they leak the tape of him cavorting in a room with a woman. That was a maneuver the fbi pulled. They had an active program. That is what led to upping the ante. New york passes its open records law. Enormousan commotion. To pickrecommend we try the loss on an fbi office if you get frustrated with a freedom of information act. It really was public outrage that allowed us to get these laws in the first place. The more we get the fires going, the hotter they will be for all of us. I wanted to ask a question about getting information out of the and weep id out of the nypd. I cover the ninth precinct. I do not have time to file one of these freedom of information act request. There was a 23yearold kid who got himself killed outside a housing project. The Deputy Inspector didnt even give the name of the kid. Could not identify him. Didnt even know the name of the perpetrator. Think it thecp i name of the perk. I could not get added i couldnt get anything out of the kids. I spoke to the lieutenant in charge of special operations. He said he did not want to speak ill of the dead when i asked if the kid who got killed and the perp were involved in gang activities. He was very of a set of. I dont know who to call about that when you are on deadline. What are your suggestions . Welcome to the endless frustrations of covering the new york Police Department. Its good that youre hanging out at the ninth precinct. At the end of the day that is the only thing that is going to get you real information. Knowing people inside the precinct. That is my point. Personal contact is better than anything. I agree. Nypd has made that harder and harder. When bill de blasio was public advocate he did a review of the freedom of information performance by all the agencies. He rated the Mayors Office and everything else. The Police Department got an f. I think that if he was to do it again today, they would still have an f. One thing you could do is criminal history is public records. You can ask the relevant District Attorneys Office to get his past arrests. Does mr. Freeman know if i can get records on this kid . He would have that. Yeah. I think we have time for one more questions. To follow up, you mentioned the appeals process. Article 78. Have you had any success with that and has the Attorney Generals Office been useful . The example that i gave were examples of great success. We were able to, thanks to the filed in thewsuit 1990s, we were itll to open up family court. We were able to get them out of the department of investigations. When youve got the willingness of the part of a Media Organization to continue that. There have been quite a few times Media Organizations have teamed up. Everybody wants these records. We will pool our money, pool our resources. That has been a very effective tool as well. It should happen more often than it does. When there is a lawsuit and when there is a willingness to really litigate right up, the city and the state and the feds they , dont want bad law made. They have laws which they are obligated to do something beyond what they are already doing. They will often try to settle it. In terms of enforcement, there is no enforcement mechanism in new york state . We wish. At least on the federal level, there is an appeals process of the federal level. It is annoying and timeconsuming but you should do. Lawyer in some agency will take a second look at the request. In response to denials or heavy redactions. You should do that if you have time. There is no Division Within the new york state ags office like in texas. Opinion thatry they will file for you are not binding. Thinkn say this is what i you should do but the agencies can ignoree that canno them. And there is no penalty for that. I thank the panelists for agreeing to come up here and talk. I thank you all for coming. Go file some foias. There is some of our live coverage today. Supreme Court Reporters give us look at the Supreme Court term. They talk about the death of antonine sculley up and its effect. Hosts theon crime we will hear from Grover Norquist on the cspans washington journal, live every day