Mining for records when open records laws do not apply

From the Fall 2008 issue of The News Media & The Law, page 22.

By Hannah Bergman

The Freedom of Information Act only applies to executive branch agencies of the federal government. Figuring out what is and is not an agency can be a daunting, frustrating task for reporters and courts alike.

The simplest way to get records from any governmental entity — at the local, state or federal level — is to ask.

At the federal level, even those organizations not subject to FOIA often release internal information on their own. This includes the Corporation for Public Broadcasting and the Smithsonian Institution.

Other entities — like Fannie Mae and Freddie Mac — are regulated by other agencies of the government that force them to share some information with the public. For instance, the Securities and Exchange Commission requires publically traded companies, including Fannie and Freddie, to file detailed information on their operations. All of that information is on the SEC’s Web site.

Asking is also the best first step at the state level, where open records laws don’t cover every incarnation of a government body. There too, local governments will frequently license, regulate and keep information about these hybrid entities.

For example, hospitals are licensed and inspected by states. And when hospitals accept money from the federal government under the Medicare program, the state will monitor the hospital’s compliance with federal laws. All of that information may be accessible by asking the state agencies for it — even though the hospital itself wouldn’t be subject to a state open records request.

Local transit and airport authorities are another example of a state-level, quasi-governmental entity. In Illinois, the Chicago Transit Authority is subject to the open records law. Likewise, in Virginia, the Metropolitan Washington Airport Authority is subject to the state open records law.

But those open records laws don’t apply to the Washington Metropolitan Area Transit Authority. Instead, WMATA, because it is an interstate compact entity — created by Maryland, Virginia and the District of Columbia — applies its own policy on public access to records. But don’t assume that because a state open records law doesn’t apply to WMATA, it won’t release the information. Ask for it.

Charter schools are often another gray area — neither fully public nor completely private institutions. State access laws vary in their application. In Texas, the schools have to turn over information to the public. In Hawaii, they don’t. But under the federal No Child Left Behind legislation, the schools must release report cards with information on test scores, attendance, and teacher information. That means there may be a paper trail with useful details.