August 30, 2020

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Runtime: 00:33:02

Below is a transcript of episode 5. We encourage you to listen to the episode. It was written to be heard, not to be read. 

Sara Ganim narration: This entire podcast hinges on data, data that we got or didn’t get from something called a public records request. The ability to request records from public institutions is part of the law and in theory should take a few weeks, at best. 

Camille Respess: I’ve left a couple messages about some FOIA requests we sent, that we never got a response from 

Sara Ganim narration: We sent out our first batch of requests in September.

    University of Oklahoma Foia Officer: This is still in process. We’re just um. Yeah unfortunately I’m not able to give you any time of completion on that.

Sara Ganim narration: By May, when we still had not heard back from several universities on a variety of topics, we called to see what the heck was going on.

          Camille Respess: “Hi, my name is Camille, Respess, I’m a reporter with the Brechner Center” 

Automated voice from San Diego State: – “If you are satisfied with your message, press one”

University of Oklahoma Foia Officer: We get tons and tons of requests.

UNC Charlotte Foia Officer:  I’ll work on figuring out what happened and then l’ll let you know how long it would take to get that information. It’s me and another girl

Camille Resspess narration: We’ve noticed that a lot of schools only have one or two positions dedicated to fulfilling these requests, and that seems like, that puts a lot of workload on just a couple people.

University of Oklahoma Foia Officer: Yeahhh, haha, yes, yes.

Sara Ganim narration: It made us wonder, why are so many of these public records offices so seemingly overwhelmed?

         Dave Cuillier: It’s low priority in agencies. It’s very convenient to under-staff that office.

Terry Mutchler: They view it as grudge work.

Sara Ganim narration: From the University of Florida’s Brechner Center for Freedom of Information, I’m Sara Ganim, and you’re listening to an episode of ‘Why Don’t We Know’ the podcast that dives deep into data and comes out with real stories. Unlike our freedom of speech, freedom of information is something that comes, not from the constitution, but from laws. There is a federal statute that guarantees freedom of information. You might hear people talking about FOIA. FOIA is technically the Federal Freedom of Information Act, and it’s used in shorthand to describe the request for documents from a federal agency. Sometimes people also interchange that and use it to describe documents requested from state agencies, in our case, those agencies were state departments of education and state universities. State schools are subject to open records laws because they are funded by taxpayer dollars. Each state actually each has its own slightly different records law. You might sometimes hear people refer to these as sunshine laws.

 Ohio Attorney General website: Opinion about sunshine law requests

Sara Ganim narration: Those laws outline what is considered public and what is exempt. and those exemptions vary, some states are more open than others. For example, Florida, Washington and Connecticut are generally considered really open, while others like Massachusetts, and Wyoming are notoriously not. Although the number of exemptions isn’t the only measurement for whether a state is considered open, we’ll come back to that point. There is one major misnomer about public records laws. The information itself is not what’s made public. It’s the document that is made public, which can limit the information you might get. We saw examples of this in almost every episode. If a department of education or a university doesn’t keep the information in an actual document, like an email, or a memo, or a spreadsheet, there’s nothing mandating that a document should be created just to fulfill a request. An example of that would be like when we asked universities how many head injuries they had in a year.

         Joe Hastings: And a really surprising number of universities responded, but said they had nothing to share. They simply don’t track head injury trends.

Sara Ganim narration: If they don’t keep that number on a document somewhere, they are not required by law to start counting just because we asked. But let’s say all the stars align, the information you want is a document, the state law says it’s public, and so you decide to make a request for it. You go online, fill out the one-page request form, and hit send with the hope that you are soon going to get the answers you want. There are still lots of ways that agencies can keep you from actually getting information. We saw these tactics over and over again during our 12 month quest for records. 

Terry Mutchler: Fifty plus years into the Freedom of Information Act and the equivalent laws, state laws around the country, we are still experiencing agencies that just blow this off, that consider the right to know to be right to N-O.

 Dave Cuillier: We think we’re the leading beacon of democracy in the world like our poop doesn’t stink and in reality, that’s not the case at all.

 Sara Ganim narration: Two of the best open records experts in the country.

          Dave Cuillier: It’s low priority in agencies.

Sara Ganim narration: Dave Cuillier, who is the president of the National Freedom of Information Coalition, has testified before congress about FOIA and is now an associate professor at the University of Arizona. 

         Dave Cuillier: There isn’t a stick big enough to make people follow the law and it’s human nature.

 Sara Ganim narration: And Terry Mutchler.

          Terry Mutchler: We’re far beyond sugarcoating this.

Sara Ganim narration: She’s a former journalist-turned media law attorney, who was hired to create Pennsylvania’s open records office in 2009. Now she’s a partner with Dilworth Paxson law firm.

         Terry Mutchler: We see many agencies that game the system, that, when I say many, I’m talking like a lot that game the system.

Sara Ganim narration: Together we’re going to geek out on some of these issues. As we take a step back this episode and look at our fact-finding experience and how well it did, or did not work. 

         Dave Cuillier: When it comes to public records laws. We’re actually in the bottom half of the world.

Sara Ganim: The bottom half?

Dave Cuillier: We’re not that great. And yet Americans always think, “What? We are so awesome.”

Sara Ganim: Well, maybe not awesome, but definitely you think open. That’s really an interesting fact.

Sara Ganim narration: Maybe I shouldn’t have been so surprised, because we did see some pretty bad behavior.

         Ron Smith: All these people are attorneys, and they like to split hairs about whether it’s actually legally defined.

Sara Ganim narration: Let’s start with delays. It’s one of the most frustrating tactics, because even though timeframes for responding are written into the law in all but 12 states, agencies can still delay requests for months and months, like in the case of the Daphne Beletsis, in episode four, where the university stalled past the time when the family could have used the information in a lawsuit.

Daphne Beletsis: Almost six months. And it was only 57 pages. I mean, it wasn’t like it was voluminous.

Sara Ganim narration: By the way, when we asked for the same thing, it took UC Santa Cruz eight months to turn it over, even though they had just given it to the family. And so it probably won’t surprise you, that this tactic also comes in handy for agencies hoping to beat the news cycle. The longer they wait to release the documents, the less likely the press is to report it.

Terry Mutchler: I think that we’re well past the point of being polite when it comes to explaining a way people, or agencies that either ghost someone with FOIA, play games with FOIA, or public records acts across the nation. Here’s the bottom line, you’re either pro open government or you’re not.

Sara Ganim narration: This is especially relevant right now, during the worldwide COVID-19 health crisis.

Dave Cuillier: Universities, public universities have said, “sorry, it’s not essential, we’re going to take longer, or we’re not going to deal with it.”

Terry Mutchler: That’s become the new cover for, for further delaying transparency.

Dave Cuillier: “Sorry, we’re closed. That’s a non-essential activity. We’re not going to even deal with you at all.”

Sara Ganim narration: On paper, the average response time is supposed to be about 20 days. But anyone who regularly files these requests knows that entities can easily extend the timeframe by 30, 60, 90 days sometimes more. And in the 12 states that don’t actually quantify that timeframe, the request simply needs to be fulfilled in a “reasonable” amount of time. Well, reasonable for you and I might be a lot different than “reasonable” to the records officer. It leaves it open for the agency to decide when the requestor is going to get an answer.

Terry Mutchler: Not to sound like a FOIA geek here but believe it or not this issue and this tension has existed since the founding of our nation. And if you actually look at the Declaration of Independence, one of the, I think it’s the fourth or fifth grievance that they outlined against the King said, that he called together legislative bodies at a distant repository from their public records for the sole purpose of fatiguing them into compliance. And I mean, that just plays out over and over again. And so, you know, that’s when I know that I’ve been in this, this niche work too long, but when you actually figure out that, wow, they’ve been talking about this since 1776.

Sara Ganim narration: Fast-forward 240 years, and delays are still common. But there are universities that are known to use this tactic a lot. Can I tell you I’m still waiting for some universities to respond to a request I made 8 years ago about test scores of athletes. I don’t think the documents are ever coming. But anyway, the official reason that’s given, is almost always that there’s a backlog of requests and not enough time to fulfill them.

Dave Cuillier: It’s low priority in agencies. I mean, it’s not in their best interest to give out information that they don’t want out. So it’s very convenient to understaff that office. There’s nothing in the law that I have ever seen that says, “Oh, it’s okay not to comply with it if you feel like you’re understaffed.”

Sara Ganim: There’s nothing that says you will be penalized if you are, let’s say your average response rate is like a year.

Dave Cuillier: Exactly. And that’s the problem with the system. The problem is there isn’t teeth in it. That’s the big hole in our public records law and until we get that, they’re going to be ignored. They’re going to be abused and they’re not going to work.

Terry Mutchler: Funding is an issue across the board no matter what entity you’re looking at. The bottom line here is that people in agencies and in you know, policymakers, they look at responding to Freedom of Information Act requests and Right To Know Law requests as extra work, instead of incorporating it into the fiber of their work.

Sara Ganim narration: We decided to take a deeper look at why that backlog might exist. We compared the budget and the staffing of the open records offices, to the budget and staffing of marketing, or public relations offices. The data shows great discrepancies. Sometimes the gaps are tens of millions of dollars. For example, at the University of Oklahoma, which didn’t respond to two of our requests for more than 11 months.

         University of Oklahoma office: “Unfortunately I am unable to give you any time of completion for that.”

Sara Ganim narration: The FOIA officer explained they are staffed by just two people.

University of Oklahoma office: “Our office is reliant on other departments on campus. We’ll receive the request but then we will have to reach out to other departments.

Sara Ganim narration: We looked online and found the marketing and public relations office has 16 times more staff than the records office. And that staffing gap might be ok, if the records office was getting their work done. But we aren’t the only ones who had to wait a really long time for a pretty basic request. The Oklahoman Newspaper recently wrote about how it took 20 months for that same office to respond to one of their requests, and when the response did come, it was a simple denial. Another school, California State Long Beach, they didn’t respond to any of our requests, except the one about budget sizes. Turns out, they have one and a half people working on records requests, and 17 working on marketing. The dollar breakdown goes like this; $150 thousand for the records office, $2.2 million for the marketing office. And at UC Santa Cruz, which took eight months to hand over one document, it might not shock you to learn that they didn’t respond to our request about their office budgets. But we did an online search and found just three people are listed as employees of the records office. By comparison, there are dozens of people who work under the office of university relations.

Terry Mutchler: Look, I’ve been doing this for way too long, both as a reporter, as a lawyer, I’ve been on the government side, I’ve been in every facet of the Right To Know Law and FOIA I’ve handled, and there is no one that could stand in front of me with a straight face and say that to not receive a response a nine months to request for records is anything less than obfuscation. They can call it what they want, they can say overwhelmed, they can say understaffed, they can say whatever it is. At the end of the day, universities described as you have by the size that you have, that’s not understaffed. It’s appalling. If I were the head of an agency or a university, it would be an embarrassment in my view to know that someone has filed a request for records and hasn’t even gotten a response. I mean, how else do you say it? It’s not cool.

Sara Ganim narration: Some of the universities who were most delinquent in responding to us, are in states where, on paper, you’d think there are really good Sunshine Laws. Which is why Dave Cuillier doesn’t measure states by the number of exemptions to open records, but instead by their rate of compliance to those requests. 

Dave Cuillier: Traditionally a lot of people have measured that by looking at the laws, and that’s one approach and that’s a good approach. But just that there’s an assumption there that we’re making that strong laws result in better compliance. And I don’t think that’s necessarily true all the time. I looked at thousands of requests and how they came out we’re talking about actual compliance of the law. Whether or not people get records that they ask for. And what we find is that states that have a mandatory fee shifting provisions in their law tend to have better compliance.

Sara Ganim narration: Ok, so what is fee shifting? Well, let’s first take a step back. Let’s say you filed your request and were denied, but you believe that denial was wrong. You can sue the agency. And fee shifting laws say that if you win your case in court the agency has to pay you for your attorney’s fees, which can be really hefty. About one third of state’s have these laws.

Dave Cuillier: Agencies pay attention to that because it can hurt them. They may have to pay 80,000 to $100,000, if they lose a public records lawsuit. The worst states in the country with compliance are those in the deep South, Alabama, Mississippi, Kentucky. Those states have abysmal compliance with the law.

Sara Ganim narration: Of course, there’s also politics that plays a part in this too.

Dave Cuillier: If they have a political culture that favor secrecy and hiding. They’re going to gain the system, whether they have an exemption or not in law.

Terry Mutchler: Right To Know Laws are highly emotional laws. I see it all in my work all around the country. There are agencies that, how can I say this plainly, on one hand you have citizens and members of the media who are convinced that every public official or every state agency office holder is a criminal. And on the other hand, you sometimes have agencies that don’t like the public. And so there is a sweet spot that should be balanced here with a citizens right to know about what’s going on in their government, how it’s being handled, you know, whatever the public record would reveal, and with balancing the fact that that agencies also have a myriad of responsibilities and that’s why it does come down to a philosophy and a commitment.

 Sara Ganim narration: There’s another huge barrier when it comes to FOIA which we can’t ignore, and that’s fees. Fees can be killer. The law typically allow for entities to charge for the time and resources, like copies,  that it takes to find and prepare the documents. But keeping that fee reasonable, well, that’s another story. And so it’s not uncommon to get a bill for thousands of dollars for documents that seem pretty basic. But just to give you an idea of what we encountered in our reporting for this podcast.

 Tori Whidden narration: In total, we received 42 requests for fees, and if we paid for all of them, it would have been more than $26 thousand. 

 Sara Ganim narration: Associate Producer Tori Whidden was the chief organizer of this reporting project, and she managed the fee requests. What she found was that most of the money that was requested, was to compile records for Greek organization misconduct.

 Tori Whidden narration: The numbers added up to about $19 thousand from that category alone.

 Sara Ganim narration: She also found that one-third of all the fee requests we received came from one state.

 Tori Whidden narration: Texas. Universities there sent the most fee requests, we got back seven, totalling $7,500 dollars. Florida was a close second with 4 major Florida schools, Florida State, Florida International, and the Universities of South Florida and Central Florida. All requesting fees to provide documents.

 Sara Ganim narration: Keep in mind, we requested the same documents from approximately 100 similarly-sized schools. And several of them gave us these documents for free. So then, why did some charge thousands of dollars? There were 6 times that documents we requested were quoted above $1,000. The highest fee request we got was just over $6500, and it came from the University of Maryland, responding to our request for documents that showed Greek organization rule violations over the last five years. I’ve worked for big news organizations and small ones, and neither has ever been willing to pay thousands of dollars to get a few documents. Now, imagine being a student, a parent, a victim.

Fees like that basically make the documents private again. 

 Terry Mutchler: Charging fees for public records, in my view, is one of the biggest areas of a technique designed to deny access to citizens. I’ve seen it, I can’t even tell you the number of times I’ve seen it.

Dave Cuillier: I firmly believe that every public records law should have zero fees. That there should be absolutely no cost whatsoever in search time and even photocopies. It should be free to access your government’s information. It’s like electricity, I mean, when I walk into city hall, should I pay entry charge to go in because there’s electricity being used for lighting and heating. We need to get away from this idea that user fees should be charged for getting records until we all come around and think that way, we’re still going to see agencies abuse the system and charge outrageous fees for copies and search and redaction time. And that’s just wrong.

Sara Ganim narration: Dave Cuillier’s opinion on fees is still the minority view, even amongst his peers in the open government world.

         Terry Mutchler: What courts around the country have said is that there is a reasonable fee to charge for the production of records. 

Sara Ganim narration: Probably one of the most outrageous examples of abuse of fees happened in 2011 at Johnson Community College in Overland Park, Kansas. A reporter for the school’s newspaper requested some email exchanges between administrators. The initial response was that it would cost more than $47 thousand due up front in order to fulfill this request. Thankfully, the reporter, Marcus Clem, fought that claim and sued. In the settlement, the university agreed that actually the work would cost about, wait for it, $450. Which, if you’re doing the math, is less than 1 percent of the initial quote. And there are instances similar to this across the country

Terry Mutchler: I was representing a news organization in Florida, and the County wanted to charge $23,000 for, for these records. What we were able to do is to really drill down on that and determine that what was actually owed was about 23 bucks, 22 bucks. 

Sara Ganim: How could that happen? 

Terry Mutchler: They’re not interested in doing it in a lot of instances, even though they’re required by law to do it. So I think that numbers get inflated, I think people just anecdotally say, “Oh my God, we spent 20 hours on this.” When probably it might be more of a situation where they spent 18 hours complaining in their head about it, and then two hours actually with the work.

Sara Ganim narration: Ok, I know what you’re thinking, these are advocates we’re talking to people on the outside looking in, and so of course they feel this way. I hear ya, and so I talked to someone who was actually in charge of responding to records requests for a school district in Florida.

         Matt Reed: Hi. My name is Matt Reed.

 Sara Ganim narration: Matt Reed has been on both sides of this issue. He’s been the requestor and the requestee. When we spoke, Reed was

Matt Reed: Communications Director and the Custodian of Public Records for Brevard Public Schools.

Sara Ganim narration: And so I asked him 

Sara Ganim: I think that a lot of journalists and members of the public when they make a request and the outcome is not favorable or is not what they expected, their automatic thinking is, “Oh, well they just don’t want to give me this information.” But what’s really going on from your point of view? 

Matt Reed: Well I think the three biggest things that we encounter are that number one, new restrictions on security information, which have been added to some very stringent federal student privacy laws.

Sara Ganim narration: We’re going to get into that in a big way later in the season. But I was surprised to hear Matt Reed agree that inflating fees are a problem.

Matt Reed: Secondly, our costs. I’ve tried to tackle that issue but I have found that local governments, including school districts, charge too much too often for public records. Too often local governments follow guidance that says, “You may charge up to $0.15 for a photocopied page,” but the weight of court rulings on this issue says that, “It should be the actual cost of duplication up to, say, $0.15.”

Sara Ganim: So instead of defaulting to the highest number, they should take what it actually costs, is what you’re saying           

Matt Reed: I think it would be a great story for somebody to request the photocopy and contracts that most large governments have to find out exactly how much that cost is, and then compare it to how much they were just charged for that document. Our costs here at Brevard Public Schools matches that for a whole lot of other school districts in Florida, because it’s the same vendors and contracts, and it’s about a penny and a half per page, not $0.15. But that’s not the biggest fee that causes people to stop pushing for information and to not get what they are seeking. The biggest cost are fees charged for labor. And, this is one of those frustrating situations where the only legal guidance in Florida is a very questionable court case from 1991 that was allowed to stand by the Appeals Court that said that, “If a request takes more than 15 minutes to fulfill, that can be considered an extensive public records request, and you can charge a special service fee for labor.”

Sara Ganim: Wow. Fifteen minutes is not really that long.

Matt Reed: It’s ridiculous. It is not long. We are routinely charging labor costs when we shouldn’t be.

Sara Ganim narration: Matt Reed came to the job after being a journalist for many years, skeptical, like many of us, of high fees, long delays, and other tactics that are regularly used. And so I asked him if any of his views changed when he switched sides.

Matt Reed: I think I found a couple of things. One is, nobody believes that it’s part of their job to go get information when somebody requests it. You’re being paid to be a public servant and providing information to the public about what you do is part of your job. It may not be every day, but that doesn’t make a request an extraordinary thing or a burden. I’ve also seen, to be fair, there are giveaways in every community who will ask for the world, and it can’t be a giveaway. I mean, you can’t shut down a whole department to go get every last scrap of paper or data blip. If you’re a school principal or a school administrator of some kind, there’s no end to the number of demands and questions, and sometimes complaints that you get from parents and others out in the community. And so, just trying to maintain control of your workload and your day means trying not to overly engage and just to keep business going. I think also at the policy level with school boards and superintendents and others, you have a tendency to want to be very savvy with PR and politics and marketing. That means being very strategic and being very strategic means keeping your hand close to your vest or play your cards close to your vest. And so they create a bubble of kind of secrecy around them, whether they intend to or not, because they don’t want people to know. What they’re telling people is this kind of messaging strategy that they’ve got built.

 

Sara Ganim: Can you tell me, are most people who hold this job, are they like you?

 

Matt Reed: I don’t think there are very many people that have the same outlook that I do. Even among reporters, the interest in public records law and sunshine is not uniform. I think that for the most part, people who have my job come from the public relations and marketing world so their knowledge or even concern about public records is minimal. What happens is that we have long standing policies and procedures carried out by people in cubicles who process these requests, and they’re just following the rules that were given to them. If we don’t pay close attention or update our policies and procedures to be fair, then that’s just going to continue through pure inertia.

 

Sara Ganim narration: Let’s take a minute to discuss some of the policies and procedures that might need to be updated. For example, a few state schools told us the only way to file a records request is to print out a form, hand-write your request then fax or mail it back in the U.S. mail. Okay, 1987. Or how about this, in states like Pennsylvania and Alaska, some universities that get public funding, still don’t have to respond to records requests, because the law was written to exempt them. In episode 3, which focuses on Penn State, we only got a hold of records about their asbestos control program because those records are part of litigation. Not because they responded to open records requests. We asked Penn State for records on the other topics in our other episodes anyway just to see if maybe they’d share. But they didn’t. And in five other states, we could get no documents for no other reason than, that part of their open records law is that you are only privy to records if you can prove you live in that state. And since no one on our team lives in Alabama, Arkansas, New Hampshire, Tennessee or Virginia, those states and their schools basically skate, they escape scrutiny and there’s not a whole lot we can do about that.

 

Terry Mutchler: I believe that there should be a unified right to know law in the states around the country. It’s kind of like my life’s mission.

 

Sara Ganim narration: But alas, until Terry Mutchler is victorious in that life mission, we have some bigger fish to fry, because we found some pretty sneaky stuff going on. Folks are getting creative finding ways to just plain hide documents they don’t want to share. We saw a glimpse of this in the concussions episode when the University of Central Florida told us that their records were not public because they were housed inside of their athletic association, which is a private, working as an arm of a public institution. We’re going to explore these private foundations more in the episode after next, but first.

 

Paula Lavigne: And he was sort of laughing. He said we have ways of keeping that stuff away from you.

 

Sara Ganim narration: Another way public schools stash away documents that should otherwise be available.

 

Jim Finkelstein: If your state allows it, we’ll own the data.

 

Judith Wilde: They hang around the iPads, let people read it, and then pick up the iPads again.

 

Sara Ganim narration: That’s next time, on Why Don’t We Know.

 

         Open data song: You say data, I say data, But it doesn’t really matter, Open data, Open data, no it doesn’t really matter.

 

Sara Ganim narration: This episode was written and produced by me, Sara Ganim.

Additional reporting was done by Camille Respess and Brianna Edwards.

The associate producer is Tori Whidden.

This episode was edited by Amy Fu.

Music for this episode was composed by Daniel Townsend.

Need to track and by Keith McDonald, who wrote and performed the open data song.

The executive producer is Frank LoMonte.

‘Why Don’t We Know’ is a production of the Brechner Center for Freedom of Information at the University of Florida.

A special thanks to the Hearst family foundation for proving the grant money that supported this reporting.

For more information about this episode, visit www.whydontweknow.org