Newspapers join forces to investigate records law compliance

From the Winter 2000 issue of The News Media & The Law, page 7.

Putting aside competitive pressures, newspapers across the country are banding together to test their state's open record laws. Since seven Indiana newspapers first measured how well local governments were complying with state open record laws in 1997, newspapers in at least 10 other states have followed suit.

The public record audits have revealed a common and troubling problem: Law-enforcement agencies, which generally have the lowest rates of compliance, are often intimidating and hostile toward citizens requesting public records.

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Deb Gruver is an old hand at getting police records under Kansas' open records law.

As the daytime police reporter for The Wichita Eagle, Gruver routinely requests -- and usually receives, no questions asked -- copies of crime reports, police logs, and even autopsy records, from local law enforcement agencies.

But things were not so easy for Gruver when she went to the Harper County sheriff's office in Anthony, Kan., about an hour southwest of Wichita, and asked for copies of recent crime reports.

Greeted with suspicion and hostility by the office's clerks and sheriff's deputies, Gruver was first questioned and intimidated, and later even detained, in the sheriff's office -- all for asking to see a crime report that is clearly public under the state's records law.

"It became obvious that I was going to end up in jail" if she persisted, Gruver said. "It made me frightened about what they did to people."

Gruver, who initially did not identify herself as a journalist, was participating in a statewide audit of local governments to measure compliance with the state's open records law.

She was allowed to leave the Harper County sheriff's office only after she revealed that she was a reporter and a sheriff's deputy talked to her editor.

Over a two-week period in late September, Gruver and other staff members from 19 Kansas newspapers fanned out across the state's 105 counties and went to sheriff's offices, county commissions, city halls and school districts in search of city and county expense reports, salaries of high school athletic coaches, and crime reports, all of which are public in Kansas.

The Kansas newspapers found most of the schools and cities complied with requests for the documents, while almost half of the sheriff's departments did not. More troubling to the audit's organizers and participants, though, were the accounts of intimidation and harassment by sheriff's departments. Under Kansas law, people requesting public documents may be required to give their names, but they cannot be asked why they want the records.

"What we found was that many of these offices were very protective of their records," said Wichita Eagle editor Rick Thames. "What concerned me a great deal was the extent of the questions when someone asked for a record, questions an ordinary citizen would find intimidating."

The Kansas audit was the latest in a series of statewide studies conducted by newspapers in at least 10 other states, beginning with an audit done by seven Indiana newspapers that was published in February 1998 and has since served as a model for the others.

The ground-breaking Indiana project was borne from the frustration many newspaper reporters and editors in that state had experienced trying to access government records. Records were being improperly denied, and the records law regularly ignored, the journalists said, and something dramatic was needed to focus the public's and state's attention on the abuses.

"The reason we decided to do it was we were tired of the legislature telling us that it was an isolated incident," said Kyle Niederpruem, an environmental reporter for The Indianapolis Star and current president of the Society of Professional Journalists. "You've finally proven something, that the law is deficient. The benefits have been pretty good for the public and journalists."

A handful of Indiana journalists came up with the idea for an audit in early 1997. Early on in the process they recruited seven newspapers to participate, each representing a different region of the state, and settled on what records to request from what agencies: crime logs and accident reports from county sheriff's departments, salaries of high school athletic coaches, school board minutes and death certificates. Not only were the records of the type often used by journalists, they also were the ones ordinary citizens might request.

Realizing that the audit would have to be done statewide to achieve a critical mass of interest and effect, the organizers decided to take the stories statewide as well, with participating newspapers sharing the results and stories.

"What better way to have an impact? We had over a million combined circulation," said Don Asher, an editor with The (Munster) Times and an organizer of the project. "We didn't want this portrayed as a media-driven effort. We wanted to bring it down to the level of the average citizen being impacted by the open records law."

Over the next six months, they also came up with a protocol of how to request records that allowed the many requesters -- reporters, copy editors and interns -- to follow the same steps every time they requested records. Organizers of the Indiana project say this step was key to ensuring a consistent process and accurate results.

With hopes of discovering how ordinary citizens were treated when they asked for public records, the requesters were instructed not to offer their employer's identity unless pressed. They were also told to familiarize themselves with the records law and were required to fill out a compliance form for each record requested. A computer expert at one of the newspapers had been tapped to analyze all of the data from the audit. Before the requesters were sent into the field in early August 1997, the papers tested the protocol by sending one person to request the desired documents. No major problems occurred during either the test or the actual audit.

"The biggest surprise I had was the noncompliance rate of law enforcement and the harassment aspect," Asher said. "No one ended up in jail. We did have a couple who thought they were going to be arrested."

Like the states that followed with their own audits, Indiana discovered law enforcement agencies had the worst rates of compliance, with sheriff's departments rejecting 54 percent of the requests for crime logs and 72 percent of the requests for accident reports. The rate of rejection for death records was 20 percent. Requests for athletic coach salaries and school board meeting minutes were denied 18 percent and 8 percent of the time, respectively.

"I think if we stopped at the office clerk, we would have had far lower compliance rates," said Niederpruem, explaining that the requesters were required to pursue their requests all the way to a department head if they initially were denied. "The charm of these stories is that real people are affected by these restrictions to access."

Newspapers in Virginia were the first to follow Indiana's lead. Building on the lessons learned in Indiana, and in some cases using methods and protocols that already had been developed, 14 Virginia newspapers and the Associated Press conducted a statewide audit of compliance with the open records law in 1998.

The Virginia audit also sought records that an ordinary citizen would request: health inspector reports of restaurants, salaries of high school athletic coaches, crime logs and reports from law enforcement agencies, travel expenditures from cities and counties, and reports about violence at schools.

At 17 percent, law enforcement agencies posted the worst rates of compliance, denying records outright and often intimidating or harassing requesters.

"Very common was the third degree. It's the kind of thing ordinary citizens would find intimidating as hell," said Will Corbin, editor of the Daily Press in Newport News and a principal organizer of the Virginia audit. "The results were not particularly good, and what they underscore for the legislature is that we need to educate our people about public records."

The journalists who have participated in public record audits say the reports are making a difference in their states. In Indiana, the governor and legislature each held hearings into the records law abuses, resulting in the creation of a state office to answer questions about access to government records. A similar office is being proposed in Kansas. The Virginia audit helped nudge the Legislature to pass the first major overhaul of its open records law in 30 years.

And at a minimum, journalists say, the audits both raise awareness about the public's right to access government records and remind government officials that they are there to serve the public.

The Wichita Eagle's Gruver, who also participated in the Indiana audit when she worked at a Terre Haute newspaper, recounted times when unsuspecting government employees thought she was an ordinary citizen. They would laugh at her and otherwise make her feel uncomfortable for requesting public records, she said.

"People just think you are weird, that you are one of those crazy citizens who makes trouble, who goes to city commission meetings and talks a lot," Gruver said. "That's just wrong. The public has a right to know."

-- Byron Brown