From the Summer 2006 issue of The News Media & The Law, page 26.
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.
(A longer version of this Q&A can be found online at our FOI Service Center page)
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. 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.
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: 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.