From the Fall 2000 issue of The News Media & The Law, page 31.
By Catherine Cameron
The District of Columbia, Maryland, Minnesota, Oklahoma, California and Iowa are the latest states to test state and the District’s agency responses to public record requests. Although the surveys found varied compliance rates with the open records laws, the six surveys consistently found law enforcement agencies complied least often with their state laws.
These audits were the latest in a series of surveys conducted by reporters and others to test the effectiveness of a state’s freedom of information law. (See NM&L, Winter 2000)
Researchers participating in the surveys asked for records qualifying as open under state and district law. Instead of gaining the access required under the law, researchers often found themselves waiting for the records or denied access to the documents entirely. For example, one Oklahoma researcher waited 90 minutes in a sheriff’s office and spoke with three different officers before finally obtaining a sheriff’s jail blotter.
In what was termed a “mini-audit” by Kathy Patterson, the city councilmember who chairs the District of Columbia Council’s Committee on Government Operations, a two-day survey by committee staff members found that only two of six surveyed agencies would respond at all to open records requests.
The Fire and Emergency Medical Services Department and the Department of Public Works complied. Four others — the Department of Motor Vehicles, Board of Nursing Home Administrators, Metropolitan Police Department, and Alcoholic Beverage Control Board — denied access to the staff members even after one of them was identified as a city council committee staff member. Besides denying the requests, at least one records custodian misstated the law to staff members, and custodians at five of the agencies asked for information from the committee staff members that was not required under the open records law, such as identification and the purpose of the request. Several records custodians told the members they should submit written requests in order to gain access to the records and several custodians asked for identification, both clear violations of the open records law.
In Maryland, reporters from 20 newspapers around the state requested six different records from agencies in each of the state’s 23 counties. Overall, county officials complied with only half of the requests. Reporters received the public information most often — about three-quarters of the time — when requesting a nursing home inspection report from the county’s nursing home ombudsman. Again, reporters encountered resistence from the police. Maryland departments released the arrest logs in response to only 26 percent of those requests.
Minnesota’s survey showed similar results. Volunteers from many walks of life — from college students to stay-at-home moms and retirees — requested documents from public offices. They requested city council meeting minutes, school superintendent salaries and jail logs from the corresponding agencies in all 87 counties. Nearly all of the cities — 98 percent — released the minutes of the council meetings. School districts also complied more often than not, releasing superintendents’ salaries in seven out of ten inquiries. However, local police departments held on to jail logs more than 60 percent of the time.
In Oklahoma, reporters from two newspapers also found poor results when they requested records from police. Three separate surveys were conducted in that state. In the one survey including requests of law enforcement agencies, those agencies complied least often with the public access laws.
In the first survey, reporters requested five different records from four different agencies in all 77 counties. The survey gauged five legal requirements of the state law — record accessibility, cost, on-duty records custodian, established records procedure and whether the custodian questioned why the records were sought. Less than one in five of the 308 agencies actually complied with every legal requirements. Of the 154 law enforcement agencies surveyed, only 14 met all five statutory requirements.
Agencies included in the second survey fared much better, posting a 90 percent compliance rate. One possible explanation for the high statistical compliance rate could be the absence of requests made for police records.
As part of this survey, researchers included one dollar for copying charges with the 1,454 letters mailed to schools, municipalities, regents, vo-tech schools and state agencies requesting copies of one month’s meeting agenda. In many instances, the agency returned the dollar bill or an unspent portion.
In the third survey, one person visited 41 Oklahoma towns, all of which had populations of less than 3,000, to request the monthly treasurer’s report. Although some offices were closed or records custodians were unavailable, the researcher did not receive any denials of access to the records.
California’s survey was conducted by the Society of Professional Journalists and the California First Amendment Coalition. These organizations enlisted college students to approach city, school and law enforcement agencies for records. Although the overall compliance rate was 47 percent, police again had the worst track record. Police departments denied over 64 percent of the records requests and sheriffs’ departments only handed over records to 20 percent of the requesters.
School districts released records 28 percent of the time. Municipal governments did not comply as well with the California open records law as they did in some other state surveys. Only 40 percent of the requests made to municipal governments were granted. One reporter that was denied access to records of pupil expulsions was arrested after insisting that the school district comply with state law and release the records.
Iowa’s survey also cited extreme reactions by records custodians to record requests. Reporters from 12 Iowa newspapers visited the 99 counties to seek access to property tax records, police reports, concealed gun permits and government expense records. All requests for property tax records and 91 percent of the city managers’ expense reports were granted. Agencies granted 98 percent of the requested county supervisor expense reports and building permits. But, once more, the law enforcement departments failed to comply most often. Only 42 percent of the requests to disclose concealed weapons permits were granted by sheriff’s departments. Only 58 percent of police departments released incident reports.
The Iowa survey reported several instances of intimidation and threats made by law enforcement personnel to researchers. One Des Moines Register reporter was told to leave a police station and then was followed by an officer around the building and through a city square. In another station, the sheriff threatened to arrest a reporter if he did not leave. The sheriff then traced the reporter’s license plate in order to put out a police advisory bulletin on him.
The surveys shed light on some of the more severe open records violations in these states. The Oklahoma attorney general pledged to issue written warnings to violators of the open records law and require them to attend open records education seminars. The Minnesota chief information policy officer vowed to continue information seminars to help officials learn of the open record laws and to create public service announcements to inform citizens of their public access rights. A Maryland county executive said she planned to start similar education seminars. A California state senator proposed legislation requiring the attorney general to review agency denials for accuracy and the Iowa attorney general plans on providing law enforcement training in open records laws. And in the District of Columbia, a bill to add sanctions to the Freedom of Information law and to otherwise improve it is being considered by the City Council.