July 4th marked the 40th anniversary of the Freedom of Information Act. Several reports from various sources in Washington observed the occasion by analyzing the effects of recent FOIA directives, regulations and law. But how is FOIA working away from Capitol Hill for working journalists outside the Beltway? Russell Carollo, special projects reporter with The Sacramento Bee and Pulitzer Prize winner, is one of the most prolific FOIA users among journalists. In this Q & A, Carollo shares his personal experiences using FOIA as a key component of his reporting. You can read the fruits of Russell’s FOIA labors in The Sacramento Bee online at www.sacbee.com.
Q: About how many FOIA or public records requests do you make each year? How much of each day do you spend following up on those public records requests?
A: I file between 75 to 150 requests and appeals a year, more some years. I spend at least half my day filing requests, taking phone calls on requests, appealing requests, examining information received from requests or using information received from requests.
Q: Are public records getting progressively easier to obtain or harder?
A: Harder. No doubt.
Q: Why (in your experience and opinion)?
A: Hard to tell if it’s the new administration or the new administration’s reaction to Sept. 11, since Bush took office so soon after Sept. 11. [actually, Bush took office before Sept. 11 ....] Why do I believe this? I have filed several requests for exactly the same information I had requested before Sept. 11, and I have been refused. In a number of requests, there really is no sound reason for denial. It seems the agency is daring me to sue, knowing that the odds that a newspaper will sue are low, especially these days. There’s a new air of arrogance now, too, in the way they deny and how they’re denying, with what they must know are grounds that won’t hold up in court. Again, they seem to be almost daring us to sue them, knowing that more often than not, we can’t afford it. The problem is that they’re right 90 percent of the time. Newspapers don’t sue very often.
Q: A recent study by the Coalition of Journalists for Open Government (CJOG) found that only about 6 percent of all FOIA requests come from the media. Many reporters say FOIA requests take too long. What are those reporters who choose not use FOIA missing?
A: I have filed FOIA requests for FOIA logs, and I have found exactly the same thing: Very few requests from reporters. On some cases, less than 3 percent.
Yes, it takes too long, but the trick is to file a FOIA before you start working on a story or project. When the information comes in, then you begin the rest of your reporting. Reporters who don’t use FOIA are missing what everyone else is not seeing, the information that’s not given out at press conferences or in press releases — information the government would rather you not see.
Q: About how many stories have you done that wouldn’t have been possible without filing a public records request?
A: Every long-term project I’ve done during the past 15 years — with the exception of one — wouldn’t have been possible without records from FOIA. In fact, the beginnings for all of those projects were records received from FOIA. Those projects represent dozens of very long stories and follow-ups since 1990.
The one exception was a series on how sports agents and their associates were placing foreign athletes — some of them professional athletes — in American high schools and colleges. Sports stories usually generated very few public records.
Q: What are some of the major stories for which you have relied most on public records requests?
A: • A series about assaults against Peace Corps volunteers and how the agency was covering them up. The series resulted in Congressional legislation. We had to sue the Peace Corps to get much of the information.
A series on sex offenders in the military and how the military was doing little to prevent them or punish offenders. We filed a lawsuit against the Navy in this case.
A series on medical malpractice in the military. That series also resulted in Congressional legislation.
A series about aviation accidents in the military and how the services failed to ensure the safety of personnel flying on aircraft.
A series on tort claims filed by Iraqis against the Army for acts against civilians committed by American soldiers.
A series on how the military fails to investigate, prosecute and punish soldiers accused of crimes against Iraqis.
A package on how the heavy armor the military is using on Humvees in Iraq and elsewhere is making the vehicles more likely to rollover and kill and injure military personnel.
Q: What are some of your most valuable tips with regard to making FOI requests?
A: 1) File FOIAs months and even years before you expect to start on a project.
2) Always use certified mail and keep a record of everything.
3) Clearly identify the records by doing some research before you file.
4) Every time a FOIA officer contacts you by telephone, make a record of the call, and in that record indicate that you told the FOIA officer at the beginning and end of the conversation: "I'm not agreeing to any changes during this conversation."
5) Make changes and modifications in your request only through certified mail.
6) Appeal. You stand at least a 33 percent chance of getting more information.
7) Always ask for a record layout (data dictionary) when you request a database, and tell them you want the complete record layout, naming all fields – including denied fields. Without such a record, it’s impossible to know what they left out and impossible to file a real appeal.
Q: What are some absolute no-no’s when it comes to making FOI requests?
A:
Never agree to make any changes over the telephone. By making any such agreement, you’re allowing FOIA officers to make any changes they want and lose months trying to do it all over again.
Never agree to select certain fields from a database. Always ask for the entire database and insist that the agency tell you which fields they’re leaving out and have them cite a FOIA exemption for each field removed.
Never accept any kind of website as a response to a FOIA. There’s no way of knowing all the information is on the web, and you can’t appeal a website.
Never narrow a database request by years. With the capacity of computers now, there is no need for this, and, again, it opens the window for the agency to remove whatever they want.
Q: What are some of the most common denials you see when making public records requests? What do you do to move past the denial and obtain as much information as possible?
A: For responses to database requests:
The database is too large. (Ask how big. Usually, this and other responses are caused by the FOIA officers lack of computer knowledge, which the IT people love to use as a barrier in releasing the information.)
You’ll never read the data. It’s too complicated.
We can’t give you the software needed to download the database. (To that simply say you don’t want their software, only the raw computer data)
It will take days for a computer operator to do this and cost us $4,000.
We have no way of making a copy of the database. We don’t have the equipment or software to copy data. (I’ve never found this to be true).
For denials on technical grounds, you simply convince them you know what you’re talking about, or have your IT person talk directly to their IT person. These conversations usually reveal how weak their arguments are.
For paper records:
There are too many records.
In the case of law enforcement records, the case is still open (even when the case has gone to trial)
It will cost $4,000 to process this request. (They usually come up with the number in a moments notice and it’s always a large round number).
When these don’t work, they usually use [FOIA exemption] (b)5, citing a variety of arguments, including that the material was part of the decision-making process.
To counter the (b)5 exemption, I usually argue that the (b)5 exemption does not cover purely factual information related to policy process and that the protection of the decision-making process is appropriate only for the period while decisions are being made.
Ask the agency to tell you the salary of the person who will be doing the work and how many hours will be involved. Ask why it will take so long.
Ask how many records they have, the number of pages.
Q: Anything else you would like to add about your experiences with Freedom of Information requests?
A: If you can, sue. It really gets their attention.
Loren Cochran is the Reporters Committee’s new Director of the Freedom of Information Service Center. Loren is a trial attorney from the Seattle-area and a former investigative journalist with television news stations in Seattle, Tampa and Boston.