Journalists struggle for access to public records

(depositphotos)

By Meryl Kornfield

Public records are integral to the work of investigative reporters.

Some of the best investigative projects use troves of documents and data gathered from government offices. Journalists, including IRW associate editor Margot Susca, have even investigated compliance with public record laws. Susca requested electronic state education records last summer.

She called that experience “a lesson in frustration and patience.” But when records are delayed or unavailable, it’s not just abrasive to journalists: It might mean the agency isn’t monitoring what it’s supposed to, making it impossible to know whether the businesses or people it regulates are following the law. 

Many other people use open-records law, including citizens, lawyers and other professionals. Journalists make up 7.6 percent of Freedom Of Information Act requests, the Columbia Journalism Review reported.

As part of The Washington Post’s ongoing coverage on how pain pills came to saturate communities across the country, investigative reporter Jenn Abelson focused on pharmacies, specifically Walgreens, which shipped one of every five oxycodone and hydrocodone pills to pharmacies in the United States. I helped Jenn by requesting states’ enforcement records against Walgreens from nearly 30 states.

Every state has a board designed to ensure pharmacies comply with state laws. Pharmacies need to make sure controlled substances are secure, employees are vetted and prescriptions are filled correctly. My goal was to track down how many times Walgreens stores were reprimanded for opioids going missing.  

I thought the request was simple enough: I was asking an enforcement agency for its enforcement records. 

I was mistaken.

Arkansas’ pharmacy board told me it would only fill my request if I were a resident of the state. Hawaii’s office took nearly a month to even acknowledge it received my initial email. A New Mexico FOIA officer said the state wouldn’t penalize a pharmacy if its employee was pilfering drugs, despite the fact that such an act indicated that security measures had failed.

Most concerning was that several officials said they didn’t have a searchable database to find enforcement actions by the name of the pharmacy. 

“How does your agency’s inspectors know if there’s a pattern of noncompliance if they can’t search by name?” I asked officials in those states.

 I never got an answer.

Last month, USA TODAY published an extensive investigation into how often prosecutors’ offices were following a 1963 Supreme Court mandate to disclose the histories of their police witnesses to defendants.

USA TODAY reporters, using records on discipline and accountability for 85,000 law enforcement officers, found that at least 300 prosecutors’ offices had not maintained a list of dishonest officers and at least 1,200 officers who had documented histories of misconduct had been left off these lists.

The newspaper compiled a publicly accessible database of more than 30,000 officers in 44 states who have been essentially banned from the profession. It is searchable by officer, department or state. 

Other prosecutors refused to make their lists public, which meant that journalists couldn’t check to make sure they were compliant.

Prosecutors’ offices that maintain accurate records on those officers can ensure suspects aren’t wrongly convicted of a crime based on the word of a dishonest cop. 

Withholding records can also diminish the understanding of policy, said Nate Jones, who started working this week as The Washington Post’s first FOIA director. Jones will train reporters on record requesting, negotiate appeals and fee waivers and navigate any delays or resistance.

Jones previously worked at the National Security Archive, a nonprofit founded in 1985 by journalists and scholars to check rising government secrecy. The group sued the State Department this week for refusing to provide records of what’s said by President Donald Trump and other high-ranking officials in meetings with their foreign counterparts. 

The Archive’s suit alleges that the recent impeachment inquiry is the only reason the public has learned about discussions between the United States and Ukraine and efforts to conceal those talks.

“When there is not a record of what was said, we have to rely on the word of the other country — sometimes our adversary — to find out what was discussed and agreed,” Jones said. “Sometimes we’ll never know.”