As part of Sunshine Week, NLA, in partnership with First Amendment Coalition, hosted a virtual conversation — Inside the fight for public information.
In 2020, access to public information became even more challenging. Government at all levels cited the pandemic for refusing to respond to records requests. Yet news organizations across the country published essential accountability journalism, breaking through barriers to open government.
Journalists Andrea Gallo (The Advocate | The Times-Picayune) and Derek Kravitz (The Brown Institute) joined David Snyder (First Amendment Coalition) and moderator Nancy Ancrum (The Miami Herald and NLA Board member) to discuss how they navigated barriers to public records to tell important stories about COVID-19, official misconduct and beyond.
Thanks to our generous sponsors John S. and James L. Knight Foundation, and The Gridiron Club and Foundation for their continued support of Sunshine Week.
Here's a recap of what we covered during this hour-long panel.
Derek Kravitz, data and research editor at The Brown Institute, talked about his project Documenting COVID-19:
Starting in March 2020, his team created Documenting COVID-19 to house materials and fight for public records at the local level. The project is a public records repository, with 250 record sets published so far — just the most newsworthy and meaningful record sets found.
They've filed 3,000 FOI requests total; compiled from 44 different states and territories; and worked on 70 investigative stories with partners.
They got access to classified outbreak epidemiological data from Illinois, Kansas and North Carolina working with three local outlets. "'These are very simple requests, but we found that if we just ask for the information, a lot of states would provide it. And that resulted in those states actually changing their policies and proactively posting information about locations where outbreaks were happening … mostly tied to specific workplaces or outbreaks."
Tips to keep in mind when filing a FOIA request:
Check the "morgue" and reading rooms for past documents. File FOIAs of other FOIAs.
Create a template or use an existing template. Track and nudge your request. Don't be afraid to follow up and be persistent.
Call the FOIA officer directly, and treat them like a person. This is a beat!
Be very clear and specific in your language. If you can, be like an EPA requestor; include tracking numbers and information on specific documents or data you want.
Use a date range.
Ask for documents AND data.
Get simple track processing (less than 500 pages).
Request expedited processing (because why not?).
Appeal. A third of appeals are granted.
Many government agencies are using COVID as a reason to deny requests, but it’s important to remind them this is a legal requirement.
Advice for freelance journalists or students: Call the FOIA agent to let them know who you are, what you're covering and where you’ve been published. Establish yourself and over-explain before sending a FOIA request.
David Snyder, executive director of First Amendment Coalition, shared some of the challenges he saw in 2020 and how he helped journalists navigate those barriers:
FAC is a nonprofit in California focused on defending, protecting and promoting the right of free speech and the right of the people and reporters to get government records and see government meetings.
They run a free legal hotline and received a flood of responses last year — a record number of inquiries — about open government problems, most stemming from pandemic.
The pandemic has highlighted underlying systemic problems in our society, like racial inequities, economic inequities and educational inequities. Agencies that might have treated public records laws not-so seriously before the pandemic went into full-on obstructive mode to try to hide records entirely.
Common issues David’s seen:
Agencies citing the pandemic and arbitrarily suspending response times that are required by law.
Agencies indefinitely delaying their responses, saying they received it but giving no timeframe for a response.
Agencies delaying so long that when they go to retrieve the records, they've been destroyed because of record retention schedules.
Open meetings not allowing the public to speak directly to elected officials, and instead requiring them to submit questions in writing, often 24 hours in advance. (Zoom should have made this more accessible, but some are taking the opportunity to stop the live public comment element of meetings.)
Many states suspended deadlines for responding to open records requests. In Hawaii, they suspended the open record law entirely for a brief period of time.
Blanket denials for records — especially those relating to COVID-19 — based on HIPAA, when in many cases this doesn’t actually apply.
Advice on how to overcome these common problems:
Be a pain in the ass! Be persistent and methodical. Keep a calendar of when you should get responses and follow up immediately if you don’t. (Here's a sample letter from FAC on how to follow up and respond to common denials/delays.)
Call on organizations like FAC for advice and help crafting responses.
Don’t limit requests based on what you know about exemptions.
Andrea Gallo is an investigative reporter for The Advocate | The Times-Picayune in Louisiana. She made headlines earlier this year when the Louisiana attorney general Jeff Landry sued her in response to a public records request she made. And not only did he sue her — but in his complaint, he made no mention that she was a journalist and had requested these records as part of her job.
Andrea broke down the saga for us:
In December, she filed a public records request to look into why a top deputy in the AG office who had been put on leave pending an investigation. It was unclear why he was put on leave; she just knew a complaint had been filed against him, so they requested to see those complaints. The office responded and said they’d send it once the investigation was complete.
In January, that deputy, Pat Magee, was back at work. The AG's office had no response, so Andrea followed up asking for records.
Then in February, the AG's office did respond: They said they wouldn’t be releasing those records — but they would be suing her, personally, over the public records request.
In March, Andrea, represented by The Advocate’s attorney, appeared in court. The judge ruled in her favor, saying the records needed to be released publicly and the AG must pay for her attorney fees and court costs.
When the records were released this month, they showed that several women had complained about Magee. In the complaints were claims that he insisted that one of his female colleagues should serve as co-counsel at a trial “because male jurors would want to have sex with her” and that another woman colleague was “not currently as pretty as she was in law school at age 20.”
Andrea continued to report on these records, and she even found another woman who had filed a new complaint against Magee. When she reached out to him for a comment before publication, she found out he had resigned.
Coming next: Andrea will go back to court, this time to petition for records about the investigation itself. In the first hearing in March, the judge issued a limited ruling only about the lawsuit against Andrea.
Amid all this reporting, Jeff Landry, the Louisiana AG, has gone on a bit of a media tour — with other outlets, not Andrea's — defending his handling of this. He's tried to frame it not as a direct lawsuit against Andrea but instead “looking to the courts” for guidance. Landry claims his office cares deeply about addressing sexual harassment, but he continues to defend the lawsuit against her.
Finally, The Advocate has been incredibly supportive of Andrea. After the AG lawsuit was announced, the editorial board called on readers and community members to file public records requests of their own — and many of them did exactly that.
Nancy Ancrum asked panelists how we, as journalists, can help the public understand that filing FOIAs and fighting for public records is work that we’re doing on their behalf. What can we do to better explain that open government is a crucial concern for all citizens, not just the media.
David said we should make it clear what happens when government isn’t transparent. He suggests sharing examples in your community that shows what goes on when there’s no accountability. Or, take the example of what happened in Minneapolis: Had we known about MPD officer Derek Chauvin’s prior complaints and reported problems, then it’s possible he wouldn’t have been in a position to murder George Floyd. Transparency is a crucial health check on governments so that larger problems don’t develop. Andrea’s story is the perfect example of this — the AG deputy (Magee) didn’t resign until it became fully public. If these issues had come to light years earlier — and he had been fired then — he wouldn’t have been in a position to continue to cause harm.
Derek said that individual stories like Andrea’s have a lot of impact because people can relate, and they shed light on systemic issues. Derek’s team found that when they frame their FOIA stories with people at the center — and they engage with the community and call for people to submit their own stories — it increases the lifespan of the story, and helps generate second, third, fourth stories.
Andrea said that the outpouring of reader interest was massive for her AG story. People responded, saying they had filed their first public records requests because of what happened to her. This helped energize the community, and she encourages other outlets to make this same call to action of their own audience.
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To hear more from our panelists, including a lively Q&A, watch the video recording of the event.