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EPISODE 5

What is a FOIA Anyway?

By Sara Ganim

Key Points from this episode:

  • FOI laws theoretically entitle people to know what government agencies, including public educational institutions, are up to. But in practice, they can be ineffective due to delays, fees and broad exemptions.
  • State universities don’t always respond promptly when asked for copies of public records, blaming a lack of staffing in their FOI fulfillment offices. But that’s a self-inflicted injury: Universities have plenty of staff for P.R. and marketing, the budget for which often dwarfs the budget for FOI compliance, even though FOI compliance is an actual legal obligation.

This entire podcast hinges on data that we got, or didn’t get, from public records requests. 

The ability to request records from public institutions is part of the law, and in theory, should take a few weeks, at best. 

But after nine months, when several universities hadn’t responded to some requests at all, we started calling to see what was going on.

Episode 5 of Why Don’t We Know explores what we found about how open records offices are undervalued and understaffed compared to other major public information offices at universities — like the media relations offices.

“It’s low priority in agencies,” says Dave Cuillier, president of the National Freedom of Information Coalition, housed at the University of Florida. “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 under-staff that office.”

We ran into all kinds of tactics that agencies routinely use to keep the public from getting information that should be public: delays, fees, misapplication of the law, and flat-out ghosting — just ignoring our request entirely.

“Fifty-plus years into the Freedom of Information Act … we are still experiencing agencies that just blow this off, that consider ‘Right To Know’ to be right to N-O. And we’re, we’re far beyond sugarcoating this,” said Terry Mutchler, a former journalist-turned media law attorney who is now a partner with Dilworth Paxson law firm in Pennsylvania.

As Cuillier said, “We think we’re the leading beacon of democracy in the world like our poop doesn’t stink and we’re the best and in reality, that’s not the case. When it comes to public records laws … we’re actually in the bottom half of the world. We’ve fallen so far behind.”

Sixteen times the staff

We decided to take a deeper look at why that backlog might exist. We asked universities for the budgets and staffing levels of public records offices and marketing offices. And we compared them.

The data shows great discrepancies. Sometimes the gaps are tens of millions of dollars.

For example, the University of Oklahoma — which didn’t respond to two of our requests for more than 11 months — has only two people working to respond to public records requests. By comparison, the marketing office has 16 times more staff. 

That staffing gap would be understandable if the records office was getting its work done. But we aren’t the only ones who had to wait several months for a 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 denial. 

Another university, California State Long Beach, didn’t respond to any of our requests — except the one about budget sizes. It turns out, they have one and half positions for responding to open records requests, and 17 positions for marketing. The budget breakdown: $150,000 for the records office. $2.2 million for the marketing office.

The University of California, Santa Cruz, which took eight months to hand over one document to Why Don’t We Know, did not respond to our request about office budgets by press time. 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.

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,” Mutchler said. “I mean, how else do you say it? It’s not cool.”

The actual cost

Delays weren’t the only thing standing in our way. Fees, by far, were the biggest barrier – an obstacle that plagues requesters of all kinds. 

Laws typically allow for entities to charge for time and resources — like copies — needed to find and prepare documents. But keeping fees reasonable can be challenging, and so it’s not uncommon to get a bill for thousands of dollars for documents that seem pretty basic.

In our reporting, we received 42 requests for fees, and if we paid for all of them, it would have been more than $26,000.

The majority of those requests — nearly $20,000 — were for disciplinary records related to episode 4 – The Blame Game, which focuses on Greek letter organization misconduct. 

In Texas alone, universities requested a combined total of $7,500 in fees. 

There were plenty of universities that handed over documents for no charge at all. The price range was thousands of dollars, with no clear explanation for why some schools charged thousands more than others. 

For example, when we asked the University of Maryland – the school that quoted the highest at $6,500 for disciplinary records of Greek organizations – we were simply told the fee was in compliance with state law.

“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,” said Matt Reed, a former journalist turned communications officer in the government sector.

“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,” Reed said. “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.”

One of the most outrageous examples of abuse of fees that we could find, happened in 2011 at Johnson County Community College in Overland Park, Kansas. A reporter for the school’s newspaper requested some email exchanges between administrators, and the initial response was that it would cost more than $47,000 — due up front — in order to fulfill the request. Reporter Marcus Clem fought that claim and sued, and in the settlement, the university agreed that the actual cost of the work was about $450 dollars. 

That’s less than one percent of the initial quote. 

Mutcher said she’s encountered similar situations.

“I was representing a news organization in Florida,” Mutchler said, “and the county wanted to charge $23,000 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.”

Undervalued right to know

There are other right-to-know laws that created stumbling blocks for us. 

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. 

In other states — 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. 

And in five other states, we could get no documents because they require the requestor to prove residency in that state. Since no one on our team lives in Alabama, Arkansas, New Hampshire, Tennessee or Virginia, those states and their schools escape scrutiny in this project. 

Overall, the project highlighted that there are still a lot of government entities that undervalue the public right to transparency in government.

“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,” Reed said. “I’ve also seen, to be fair, there are gadflies 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.

“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. 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.”

Associate producer Tori Whidden and reporter Brianna Edwards contributed to this reporting.