Law enforcement officials are among the worst at fulfilling records requests
From the Spring 2005 issue of The News Media & The Law, page 29.
By Andrew Brenner
A Kentucky student was backed into a corner and asked for ID. Two Iowa citizens were searched by police. In Florida, a reporter was threatened with jail.
All for doing something completely legal: making open records requests.
The three incidents were among a range of reactions from government workers to organized groups of public records requesters in 12 states who, over the last 18 months, asked for a range of open records to test how well government offices comply with state open records laws.
In many states, law enforcement agencies were the most likely to break the law by refusing to release public records. In New York, for example, only 37 percent of requested police records were released.
In some states, like Kentucky, a lack of education on the part of public officials was to blame, said John Nelson, former Kentucky Press Association president and managing editor of The Advocate-Messenger in Danville. In Tennessee, one request was denied because “there are a lot more rules after 9/11,” according to The Tennessean. In Indiana, a request handler went so far as to say it would take “an act of God” for him to release the record, The Associated Press reported.
The audits varied both in scope and result. Some were follow-ups to previously conducted audits while others were new.
Requests of public records from 86 area governments, school boards, special districts and 36 police departments were granted less than 50 percent of the time in a four-month audit conducted by reporters from the Contra Costa Times. The results, published in July 2004, showed that requests for top officials’ contracts were most often denied with only 20 agencies of 79 total granting immediate access to the records. Many agencies waited 10 days before releasing records. The California Public Records Act says public agencies must “make records promptly available” — within 10 days of the request.
A recent audit in Fairfield County commemorating the 30th anniversary of the Connecticut open records law found that 74 percent of the public offices audited in that county violated the law. Audit results, conducted this time only in Fairfield County, were much different from Fairfield County’s audit results in a statewide audit conducted six years ago.
The most-recent results, published by Fairfield University on April 12, showed that compliance by police for open records requests improved from 4 percent in the previous audit to 43 percent, while compliance for requests made at education departments decreased from 26 percent to 9 percent.
Compliance from city and town clerks was down slightly from 30 percent to 26 percent.
Auditors requested the same records as in the previous audit: arrest records from the current and previous weeks from police stations, marriage license applications without Social Security numbers from city and town clerks, and teacher attendance records from local education boards.
Government agencies in Florida denied requested records 43 percent of the time, according to a February 2004 audit organized by the Sarasota Herald-Tribune. Thirty requesters covered 234 government agencies, finding city managers had the highest compliance rate with 68 percent of the records requested turned over. Sheriff’s offices followed with a 57 percent compliance rate.
Requests were met with harassment and hostility along with demands for identification and organization affiliation despite the guarantee of anonymity under the Florida Public Records Law, The Associated Press reported. One requester was nearly arrested by local authorities for requesting documents and another was declared by a government employee to be a suspicious person for not disclosing his name.
Reporters from eight Indiana newspapers visited 92 county offices seeking 368 public records last fall. The requesters sought records including crime logs and reports, public employee salaries and court files of sex offenders. Some requesters were met with hostility including one threat of jailing a reporter and another report of a query into the political affiliation of reporter. Indiana state law does not require requesters to identify themselves or their purpose in making a request.
The audit was similar to one from 1997 by seven Indiana newspapers, a premier statewide audit that served as a prototype for the many state-wide press and citizen surveys of state agencies to see where open government is or is not working.
The most recent audit found that county clerks were most compliant, with only five denials. Sheriffs provided only 60 percent of the requested logs and 43 percent of incident reports.
Twenty students from the University of Southern Indiana conducted an on-campus public records audit last fall. Requested records included lists of people with unpaid parking tickets, people who had filed lawsuits against the university, the number of insurance accident claims involving the university and what perks are included in a head coach’s contract, reported The Shield, the University of Southern Indiana student newspaper. Only 15 percent of the offices complied with the records request, the student newspaper reported.
A public records audit conducted by 15 Iowa newspapers and Drake University students showed overall positive results for open records request compliance. The audit, a followup to a 2000 audit, showed some drastic changes in compliance results. For instance, disclosures of the identities of concealed weapons permit holders rose from 42 percent to 72 percent. Responses from school districts to requests for annual reports and superintendents’ contracts rose from 13 percent to 87 percent. However, compliance by city officials for travel records of top city administrators dropped from 91 percent to 72 percent.
While the audit was a success and marred with little hostility, “some journalists faced intense questioning, were subjected to background checks or, in two cases, were searched while seeking access to law enforcement records,” according to The Hawk Eye of Burlington, Iowa, one of the 15 newspapers that took part in the audit.
The majority of requests in 114 of Kentucky’s 120 counties were granted, according to the results of an audit conducted in October and organized by the Kentucky Press Association, The Associated Press and most of the state’s newspapers.
The day-long audit showed that of the four requested records — city budgets, county judge executive expense reports, jail logs and superintendents contracts — compliance for jail logs requests was the worst at less than 25 percent. Not only were the jail log requests least likely to be granted, they were the most dangerous to request. An AP account of a college student participating in the audit says that he was backed into a corner by Jailer Dewayne Myers who demanded to see his identification. State law does not require a requester to show identification.
A February audit conducted by 52 reporters from The Journal News, a Web paper that serves Putnam, Rockland and Westchester counties in New York, found that 79 percent of local agencies filled open records requests. The requesters visited 54 school districts, 27 police departments, 32 municipalities and three county government offices.
Like many other auditors, they found police to be most noncompliant with a total compliance rate of only 37 percent. Municipalities had a 92 percent compliance rate; school systems supplied records 96 percent of the time, and all three counties disclosed requested records. The News reported that many times reporters were asked questions that are irrelevant under state law, including questions about whether the requester was a reporter.
More than 90 people representing 42 newspapers, two radio stations, The Associated Press, the University of Dayton and Ohio University, requested records in all 88 counties in Ohio in April 2004.
The audit, spearheaded by the Ohio Coalition for Open Government, showed that the majority of counties provided at least 50 percent of the requested records. Ohio police appeared to be more law-abiding than law enforcement officers in other audited states, disclosing more than 60 percent of records requested. But a Canton police officer told a requester that he could not give a record to “someone just coming off the streets,” the Akron Beacon Journal reported.
School districts fared poorly. Requesters asked for records showing total compensation for superintendents in the 2002-03 school year and the most recent telephone bill for the main phone in the office of the school district’s treasurer, which were granted in full only 49 percent and 51 percent of the time, respectively, reported The Cincinnati Enquirer reported.
Records requests were granted 56 percent of the time during the first few months of this year in an audit of all 36 counties in Oregon organized by The Associated Press, The Oregonian and the Society of Professional Journalists.
In each county the requesters asked for a city budget, a city manager expense report at a city, concealed handgun permits at a sheriff’s office, arrest records for the five most recently arrested people on drunken driving charges and a school superintendents’ contract, according to the Medford Mail Tribune.
Compliance for open records requests in the Ocean State was 77 percent, according to results of an audit released in March 2004. Requests were made to 137 state agencies, departments, administrative boards and commissions and school districts. Common Cause and the Rhode Island Public Policy Institute spearheaded the effort.
Reports of fees as high as $285 for payroll data were among the fees charged. In Rhode Island, a price estimate must be given to the requester at the time of the request. Of the 77 percent of agencies complying with open records requests, 19 percent took longer than the maximum 10-day period established by the Rhode Island Access to Public Records Act.
Nearly one-third of 356 public records sought by more than 90 reporters, college students and other volunteers during a two-day audit in November — the state’s first — were denied.
Request takers misunderstood the state’s open records law, demanded identification and arbitrary fees and used the federal Health Information Portability and Accountability Act — HIPAA — and the Homeland Security Act as reasoning for not disclosing the public records, according to The Tennessean of Nashville. Most egregious in this audit were sheriffs’ offices.
One sheriff’s office employee in Crockett County told a requester that, “We can’t let you see this because we don’t know you,” the paper reported.
Northwest College Roundup
Of the 20 public universities audited in Idaho, Montana, Oregon, Utah and Washington, all 20 provided basic campus crime statistics, while 75 percent provided campus police logs, according to an audit organized by Washington State University students titled “The Northwest Campus Crime Project.” The results were released early in 2004.
Forty percent of universities released campus disciplinary board statistics while only 30 percent of requested rape statistics were granted by universities and Washington State University’s home town Pullman, Wash., which was the only town audited.
The records requests were e-mailed, mailed or telephoned in. Phone calls were generally handled poorly, with frequent transfers, according to student reports. Many students were ignored, most often by local police authorities, and many students reported hostility toward them by local police authorities.