Journalists put ‘the public’ in public records

By Hilary Niles

Categories

FOIA News

A $2.7 million charge for a Breathalyzer database that other states turned over for free. A secret hearing that exonerated a judge caught stealing a Cartier watch worth $4,000. Police departments withholding the names of police arrested for drunken driving — even while they released mugshots of other DUI offenders. Boston Globe reporter Todd Wallack had reported violations of public records laws before. But starting in 2014, his focus began to shift.

“I wasn’t just writing, ‘The Globe had trouble getting records,’” Wallack said. “I was writing about systemic problems using data, using crazy examples that even an average person who didn’t pay that much attention to journalism or public records would find outrageous.”

Wallack also documented the Massachusetts secretary of state’s track record of favoring government secrecy over disclosure. He reported that, more than 40 years after the public records law was enacted, the state attorney general’s office had never sued an agency for violating it.

Talking with editors about his research, “one said he’d love it if I wrote a front-page story about how Massachusetts is the Mississippi of public records,” Wallack said. “Which is unfair to Mississippi, because their public records law is better than ours.”

He would know: Wallack promptly undertook a 50-state comparison of public records laws and found Massachusetts at the bottom of the barrel.

Around this time, in 2015, the Massachusetts Municipal Association was lobbying to block an attempt to strengthen the state’s public records law, arguing that cities and towns were largely compliant and problems were rare.

Wallack’s next undertaking — an audit of all 351 cities and towns in Massachusetts, in collaboration with WCVB and Northeastern University — stripped that assertion of credibility. The team found that 58 percent of municipalities had responded late to at least one of two requests, nearly a quarter never responded, fees varied wildly and 16 public records stewards refused to comply at all.

Thanks in large part to the public awareness — and outrage — prompted by Wallack’s sustained reporting, sweeping legislative reform passed. After years of failed attempts, in 2016 Massachusetts codified penalties for public records violations and passed mandatory electronic access, standardized fees and other improvements.

Yet even today, the suggestion that newsrooms prioritize reporting on the public’s access to government information remains a point of contention in the industry. Some reporters and editors believe public records battles are just part of their job, or that reporting on their own struggles would violate their objectivity. Many also worry that audiences wouldn’t be interested in presumably boring stories.

Additionally, few journalists know about the experiences of non-journalists who try to access government information. Consequently, reporting on this essential right remains underdeveloped fodder for impactful public policy journalism.

Rick Blum, policy director for the Reporters Committee on Freedom of the Press, says that even after years of educating journalists, it’s still challenging to persuade many editors to treat related violations as news.

“If [government officials] are treating the trained person this way, and a trained person is having this much trouble getting records, [agencies] really are shutting out the public when they need something,” Blum said.

Overcoming resistance

“What we are trying to do more and more is show why disclosure matters,” Blum said.

For example, a reporter might be frustrated by being denied data about the Supplemental Nutrition Assistance Program, formerly known as food stamps. But that denial is not simply an inconvenience for the reporter. It’s a denial to the public, which has a right to know about a program it funds.

“The data is important to tell fact-based stories,” Blum said.

While public records laws are an essential tool for journalism, David Cuillier, who researches press and citizen access to information and teaches data journalism at the University of Arizona, says they’re not written just for the press.

“It’s not a conflict of interest to cover something that happens to have a nexus with our personal lives or our jobs or careers,” Cuillier said. “We’re covering an issue that’s fundamental and important for everybody.”

Freelance journalist and Fulbright scholar Miranda Spivack takes Cuillier’s logic a step further.

“The fact that I had two kids in public school at one point, I don’t think precluded me from writing about” education, she said. “I actually think it helped inform my reporting.”

Spivack said she feels the same way about public records.

“The reason I know there are problems with access is that I’ve had them myself.”

And there’s more than journalists’ own professional experience that can inform reporting on access to public records. Research shows that the vast majority of records requests do not come from journalists, but rather from businesses, researchers, lawyers and individuals.

Yet most journalists lack awareness about how non-journalists — especially individual members of the public acting on their own behalf — access public information.

Mike Donoghue, vice president of the New England First Amendment Coalition and a longtime reporter, said the public’s lack of knowledge about open government is a top concern for the coalition.

Journalists are trained to overcome roadblocks. But a concerned parent looking into school board activities may not have the same knowledge. A family member concerned about violations at a nursing home may struggle to find time to fight for inspection records. Someone receiving public assistance may not be able to afford to pay for records they need.

And those scenarios assume the general public even knows to ask.

“They just don’t know what the next step is or that they really are entitled to these records,” Donoghue said. “Citizens sort of shrug and walk out the door and go: ‘Huh, OK. I guess I’m not entitled to those documents.’”

Allies in access

The New England First Amendment Coalition provides resources to educate the public about open government. But until someone has a reason to access this information, most people don’t know how public records laws work.

“Suddenly when something’s being built in their backyard, or they don’t want the wind turbines, or they’re worried about hanky-panky at the public school or something, then they start to really burrow in,” Spivack said.

In a 2016 story for the Center for Investigative Reporting, Spivack told the story of a family in suburban Maryland who was being kicked off its leased farmland by county officials to make way for a private soccer club. Neighbors rallied to the family’s support. Two years and $100,000 later, the residents forced disclosure of relevant documents pointing to political maneuvering in alleged violation of the state’s open meeting laws.

Eventually, the county dropped its plans for the soccer club. But the family farm relocated, feeling its future at that site was too uncertain. When county officials later proposed a solar farm instead, residents were well trained for the fight. The county dropped those plans within a few months, Spivack reported.

Kathy Kiely, Lee Hills Chair in Free-Press Studies at the Missouri School of Journalism, says once people have a personal stake in public information, “they’re going to become allies in the effort to make sure the information remains publicly available.”

However, some journalists say reporters must be careful when forging such alliances.

Coverage of public records must remain reportorial, says Leonard Downie Jr., former executive editor and vice president of The Washington Post who now teaches journalism at Arizona State University’s Cronkite School.

“If it is a crusade, it needs to be done through the editorial page, not as a news story,” Downie said. “There’s a difference between bringing things to the public’s attention and seeking a particular outcome.”

Educating the public

If simple awareness is the desired outcome, a 2002 experiment may claim the greatest impact. It started one Sunday, when Florida newspapers published a small sun-shaped icon next to bylines on every article that used government information. Conceived by the Florida Society of News Editors in response to pending exemptions to the state’s public records law, the image illustrated the importance of public records.

By 2005, the American Society of News Editors had turned Florida’s “Sunshine Sunday” into “Sunshine Week,” an annual time for newspapers and public interest groups nationwide to focus on government transparency. In 2018, more than 450 newsrooms and other organizations participated.

Sunshine Week’s growth has done more than educate the public about the topic, said Rick Blum of the Reporters Committee. The initiative also has shown journalists the public’s appetite for such reporting.

“[W]hen policies and practices around freedom of information are covered, the public sees it as news,” Blum said. “And that’s … no more important than today, when obfuscation and misdirection and outright false information is put into the information stream at the highest levels of government.”

Kiely said journalists are unduly concerned about readers being bored by this subject.

“Maybe I’m Pollyanna, but I think people hunger for the real deal,” she said. “I think they would welcome guidance that would let them make more intelligent decisions as citizens.”

Boston Globe reporter Wallack agrees.

“A lot of publications seem to think that public records only need to be written about one week in the year,” Wallack said. “And lawmakers love that, because if journalists only care one week out of the year, why should anybody else care the other 51 weeks?”

Hilary Niles is an independent data journalism consultant and freelance reporter based in Vermont. She can be reached at h@nilesmedia.com and on Twitter @nilesmedia