Freedom of Information
Welcome to SPJ's FOI Audit resources. FOI Audits are a great way to monitor FOI compliance, build a group of journalists who have come up close and personal with FOI laws and demonstrate, once and for all, the weaknesses in state FOI laws.
We've compiled everything you need to get started: training, do's and don'ts, document ideas for your requests and lots more.
Introduction to Audits |
Why an Audit? Why Now? |
How Do I Get Started? |
Creating the Questionaire |
How Important is Training? |
Audit Headquarters |
A Few Final Tips |
Fostering Change with Audits |
Download a PDF copy of the Toolkit
Get information on each state's audit materials and procedures
Introduction to Audits
So you want to conduct a freedom of information audit. Welcome! FOI audits are a great way to monitor FOI compliance, build a group of journalists who have come up close and personal with FOI laws and demonstrate, once and for all, the weaknesses in your state's laws.
Perhaps you are an editor at a large urban daily, a reporter at a rural weekly or neither – perhaps you are a journalism student or professor. It doesn't matter: the good news is that anyone can test a community's transparency, and this toolkit will help you get started.
We've compiled everything you need to get started: training, do's and don'ts, document ideas for your requests and lots more. We've even included a worksheet to help you organize your audit once you get started and created a list of resources for you. If you get stuck at any point in the process, call or e-mail us, and we'll be glad to help.
So, let's get started.
Why an Audit? Why Now?
Because somewhere in your community – right now – a citizen is being denied access to public records. For that citizen, the denial represents what might very well be the first and only time that parent, or homeowner, or environmental activist, has requested information from their government.
And what happened? A stern clerk, who may or may not have known better, told them no.
Remember: this citizen is not a reporter. They don't get evaluated back home based on how hard they fought for the information. In fact, human nature being what it is, they probably decided that it's not worth a fight, sighed deeply and left, their cynicism in government confirmed.
That is why we conduct FOI audits.
There are other reasons as well. When we contact elected officials and describe difficulties with FOI laws, they find it hard to believe that things can be so bad out there. FOI audits provide evidence of the gap between official government proclamation and actual practice, between what the public records laws say and what they actually do for us citizens.
In 2000, the Maryland-D.C. Press Association sponsored an audit that sought some of the most routine records open to the public, including school violence reports and police logs, and yet found that people seeking such records have about a one-in-four chance of immediate compliance. Half the time, they get nothing, according to the audit's findings.
The state auditor of Missouri conducted an audit in 1999, which found abysmal compliance with state FOI laws. The audit received widespread publicity, and agencies vowed to change their ways. Less than two years later, the state auditor conducted the same audit – and again found that less than half of all requests were honored.
In Illinois, a 1999 audit found that nearly two-thirds of the time, people requesting public documents from local offices left empty-handed. More than a quarter of all requests for public records were never honored Π never – even after officials were given extra time to seek legal advice or compile the records. One county sheriff, when asked to provide a copy of the county jail's log, wadded up a copy of the state's freedom of information law and told the reporter, "I don't have to tell you nothing."
You can't make that kind of anecdote up yourself – it's the stuff of great reporting, and it's the catalyst for reform of weak FOI laws.
In 1999, a group of New Jersey's Gannett newspapers sent reporters to 14 of New Jersey's 21 counties to monitor compliance with state law. Eventually, the reporters asked questions of 601 state and local agencies. In a state where the only existing FOI law was considered outdated, vague and difficult to enforce, the reporters found that officials routinely refused access to records. The final result was that half of all legitimate public records requests were denied.
Paul D'Ambrosio, investigations editor of the Asbury Park Press, said that the audit demonstrated what everyone in journalism in New Jersey knew was true: access in New Jersey was difficult at best, impossible at worst.
"The audit was a huge part of the equation," he said. "It played a major role in creating the environment for legislative change."
The audit focused attention on New Jersey's outdated, inefficient sunshine law. In 2002, New Jersey enacted a newly revised sunshine law, many of its improvements directly inspired by the audit.
"Independent public record audits by two of the state's larger dailies, The Asbury Park Press and The Record, were the key to making the public conscious of the state's outmoded and restrictive open records law," said Guy T. Baehr, founding director of the New Jersey Foundation for Open Government, longtime SPJ member and now the associate director of the Journalism Resources Institute at the School of Communication, Information & Library Studies at Rutgers University. "Although it took a couple more years of work by open government advocates, I don't think our push for a new open records law would have been successful without those audits and the initial attention they focused on the issue."
How Do I Get Started?
First, understand that an audit – be it state, city or even campus – is a massive, time-consuming job that demands a high level of organization, coordination and planning.
The first step is to identify your alliance and build the network. FOI audits have been conducted with groups of journalists from daily and weekly newspapers, Associated Press bureaus, college students and even good, old-fashioned citizens.
Audit veterans agree that the alliance you build is only as strong as its middle: someone has to take command, delegate tasks and pull the audit together. Again, that role has changed from audit to audit across the country, but most audits have been anchored by either a single newspaper or AP bureau.
"It's really important that everyone knows who, ultimately, to call with questions, and to know that someone will absolutely get back in touch with them, almost in real time,' said Steve Elliott of The Associated Press, who helped coordinate Arizona's 2002 audit. "Lots of people can pitch in and help, but at the end of the day, there has to be a leader somewhere."
With a headquarters site and an audit leader or two identified, the next step is to assess the FOI landscape: what should the audit accomplish? Are you attempting to demonstrate across-the-board weaknesses in the law, highlight the worst problems or shine the light on particularly egregious agencies?
Remember: you must be scrupulously honest and fair, lest you open your news organization up to charges of ambush journalism.
In fact, from the very beginning, expect your results to be challenged and your motives questioned. Audits embarrass some people but probably anger more. Count on someone challenging your methodology or results. Defend yourself by organizing everything, keeping meticulous notes and putting lots of thought into the next critical steps in the process: developing the audit and training the auditors.
Choose your auditors carefully. Some states have struggled with auditors who went through the motions routinely and incompletely. In some cases HQ has had to send them back; in at least one case an audit had to reject the results in our final report.
Remember: It Doesn't Have To Be Statewide!
Yes, lots of FOI audits cover an entire state, but that in no way means that there is only one approach. There have been community FOI audits, city- wide FOI audits, and audits of individual state agencies. The Student Press Law Center in Washington conducted an audit focused on a single issue: whether college campus officials made public the outcome of disciplinary proceedings when a student is found responsible for behavior that would constitute a violent crime or a non-forcible sex offense, as federal law allows thanks largely to the work of the SPLC.
The SPLC wrote to a public and private university in each of the 50 states and the District of Columbia to request a copy of those specific records for offenses that took place between Aug. 15 and Dec. 31, 2002. The SPLC survey asked the schools to disclose all information allowed by FERPA, including the name of the alleged perpetrator, the violation committed and the resulting sanctions. A university also may disclose the names of the victim and any witnesses involved if they give consent.
Of the 102 schools surveyed, 59 sent some form of response, 46 public and 13 private. Of the 59, 17 schools provided at least some of the information requested, while 26 provided none of the information. Of the 16 schools remaining, eight claimed no such offenses had occurred, eight claimed they needed more time to respond. No private schools released any of the requested information.
A single subject – and an audit that tested compliance from sea to shining sea.
Another audit, this one conducted by Holly Hacker, then a graduate student at the University of Missouri School of Journalism, now a reporter at the Dallas Morning News, employed a lone reporter (Hacker).
How? It was an electronic audit. Hacker e-mailed a sampling of municipal offices across the state, seeking a variety of electronic records. The idea was to demonstrate how uneven access to electronic data is across Missouri.
"Want an electronic copy of a city budget? A database of property records? A spreadsheet of gun-permit holders?
Good luck in Missouri, where most local governments cannot or will not provide public records electronically, based on an investigation conducted for the Tribune."
There are an infinite variety of audits that can be conducted by anyone, from the largest newsgathering institutions to a single journalism student.
Creating the Questionaire
The next critical stage of the audit is the questionnaire itself. Audit veterans are routinely quick to mention the importance of getting the questionnaire right.
Turn to the experts: ask a media attorney, or the state press association, or the Freedom of Information Center for suggestions on documents to request. And make sure they are ABSOLUTELY public records before including them on the questionnaire.
The easiest way to do that is to stick with the basics. Ask for documents that reflect basic democratic governance.
Who's locked up in jail? Who's spending what money? Ask for documents that your readers clearly understand should be public – an FOI audit is not the place to foster a debate over whether or not a document should be open. Instead, it should be a fair test of the state's law. Set the bar too high, and you make confused records custodians look foolish in the newspaper. You really can't set the bar too low, as we've found that no matter how basic the request, officials still routinely deny access.
Look at Georgia's 1999 audit. They asked for the most basic, gut-level documents, and response was predictably under-whelming:
Police incident reports: 62% compliance Sheriff's incident reports: 50% compliance City council minutes: 93% compliance County commission minutes: 89% compliance School superintendent's contract: 49% compliance University crime log: 86% compliance
In Montana, the story was much the same. The AP there selected seven documents:
Incident reports or initial offense reports for the last 24 hours, from sheriff's offices. State law clearly indicated that initial incident reports were public records.
Jail rosters, for counties with a jail, or lists of prisoners being held in whatever facility holds them.
The salary of the superintendent of the largest school district in the county seat.
Property taxes paid by the chairman of the county board of commissioners, from county treasurer offices.
Minutes of the last meeting of the city or town council.
The dockets listing civil and criminal lawsuits in the offices of the Clerk of the District Court.
One file, of either a civil or criminal lawsuit, chosen by the auditor.
Note the mix here: law enforcement, before, during and after the case,
city and county government, and the judiciary.
"Don't look for obscure documents that only the newspaper would be interested in. Think of documents that John Q. Public might request," said Tom Bennett, an editor at the Atlanta Journal-Constitution who has been involved in both of Georgia's audits.
Bennett compiled a useful list of records asked by various audits:
Amount spent on lawyers
Athletic director's salary
Campus crime log
City council minutes
City finance officer's salary
County administrator's latest travel voucher
County commission minutes
Comm. chairman's property tax assessment
County judge's campaign contribution report
County per diem payments
911 emergency system records
Nursing home reports
Police brutality reports
Police incident and offense reports
Police radio logs
Property tax records
Pupil expulsion records
Race and gender breakdown of university faculty
School district budget
Sheriff expense reports
Sheriff incident and offense reports
Sheriff reports of deaths in custody
School superintendent's contract
School superintendent's latest evaluation
School test scores
State senators' driving records
How Important is Training?
Are you kidding?!?! Read FOI audits, and it's easy to see that training of auditors is the single most important element in conducting an FOI audit. Train them poorly, fail to anticipate hurdles and challenges in the field, and you'll get imperfect data, incomplete responses, or worse yet, stuff you simply can not use in the reporting.
"You simply can not train the auditors well enough," said John Kuglin, Montana AP bureau chief. "We developed protocols, followed up with more training, and still you get incomplete audit questionnaires, breakdowns in instructions and incomplete notes."
Several overall themes emerge when discussing training with audit veterans. The first, mentioned by everyone, is the need to formally train, rather than just mention a few things to the auditors and call it a day.
The second oft-repeated tip: create a form. Auditors in Montana were asked to fill out a one-page form on each of their stops.
Detail, detail, detail: Montana's training protocol instructs auditors to "ask to see each of these records and ask for photocopies of each record (or at least representative pages in multi-page records such as incident reports, council minutes and case files)." It seems obvious, but when the goal is good, usable audit data, nothing is obvious.
Uniformity from county to county, city to city and office to office is central to the success of the audit.
Before you enter the audit location, note the date, time and location. Have your notebooks ready in the car, but don't take it with you and produce it during the request – keep notes in your head and record what happened upon leaving. It's an audit, remember?
Dress professionally, like you do for work. No major deviation one way or the other.
Be polite, be diligent, and be persistent. DO NOT be belligerent, sarcastic, overbearing or angry. You are playing the role of citizen requester, so act like one.
Remember, at all times, that the goal is a FAIR assessment of compliance with the public records law. If you walk in to a government office two minutes before it closes, or in the dead of the lunch hour, and no one rushes to help you or fails to comply, what did you expect?
That said, don't be a dead giveaway: no insignia of the newspaper or organization on your clothing, no press pass in your windshield, no reporter's notebook in your back pocket! Keep the field report forms in the car. In several states, clerks tipped off to an FOI audit have passed word to the next county, corrupting the results.
OK, time to walk in the office....
Identify or Don't Identify: That is the Question
Most public records laws do not require you to identify yourself by name, or occupation, nor do they allow records custodians to ask for identification or seek the purpose or reason for your request.
Audit veterans have wrestled with the level of anonymity and have taken a variety of approaches, but the dominant approach can be summed up as follows:
STEP 1. If asked for identity or purpose, answer "Do you have to know that before you can help me?"
STEP 2. If the answer to that query is YES, then answer: "I don't believe that is required by the FOI law."
STEP 3. Then step back and mentally record everything that happens from that moment on.
STEP 4. If the official will not relent, and continues to demand identification or purpose, NEVER, EVER LIE.
STEP 5. If asked where you work, answer by returning to STEP 1: "Do you have to know that before you can help me?" (Again, make sure you are noting all of this...)
STEP 6. If the custodian insists, then tell them precisely where you work. Don't be coy – tell them at this point that you work for XXX and if asked why you want the records, tell them that you are working on a story. (Don't tell them that you are working on an FOI AUDIT!)
If clerks give you the old "that person isn't here right now" response: ask whether certain people need to be in the office in order for you to release public information. Remember to note this response when you get back to the car. Then set a time to come back, and follow up.
If you get the "we're swamped, come back later" response: again, set a time, record the fact that your request was delayed, then come back at the appointed hour and try, try again.
Don't play shade tree lawyer and start spouting off about the law. You are a citizen, remember? You can say, "I'm pretty sure that the law says that this is a public record."
And Finally, More Training Tips
If you have to fill out a form, provide only your name, home address and home phone number.
You should be able to get a record within two business days, or within the statutory minimum in your state. If the officials say they earnestly cannot get the record for you today, ask them what time you can return. A record is deemed "denied" if officials can't produce it within two days.
Study the survey sheet ahead of time so you are familiar with the categories. You can write the questions down on your scrap paper or pocket notebook so you can refer to it while in the office.
Ask for names and titles. If they resist, note that in the survey.
Make sure that your editors and auditors have all decided what is considered compliant and non-compliant.
An FOI audit presents some interesting journalistic logistics. The auditor is essentially conducting an interview with one or more public officials without the benefit of a notebook, so using forms and impressing detail upon the trainees becomes essential. Tell your auditors that they should first record names and direct quotes, as soon as they have left the office. Then have them record anecdotes, results and general impressions of the experience.
Keep copies! Field reports, the public records received, and your notes – all should be copied before submission to Audit HQ. This is critical, as you might receive a document you think complies with the law, only to find out later that it was not what you asked for, but a dumbed-down equivalent. In some states, cornered public officials have just flat-out said that the auditor was never in the office! Records can refute such lies.
Having established a headquarters location, disseminate phone numbers (cell and land lines) and make sure your auditors have someone they contact immediately at every minute of the workday. Have a lawyer on call as well, in case there are problems. And remind your auditors: if the sheriff comes out and threatens you with arrest for making an FOI request: take good notes!
Ask your auditors to keep track of their round-trip mileage, so you can create an overall number for your audit. This is particularly effective in large western states...."Auditors drove 10,000 miles to test the state of Nevada's FOI law!"
Think – hard – about visiting all agencies on the same day. It helps maintain the element of surprise.
Make sure that you have worked out story play and exclusives. This is particularly important in multi-paper alliances. What happens if something extraordinary is discovered? Does everyone run the same content on the same day? Do you run the first installment on Sunday for maximum impact? These questions should be worked through in advance.
Make sure the reporters aren't assigned to offices they normally cover and that they use their home addresses and phone numbers of where to send material. One state's audit was tripped up when public officials recognized the reporter!
Be extremely transparent about your methodology. Many audits have a "nerd box" explaining how the series was conducted, the standards for compliance versus non-compliance, and other judgment calls. Your readers and viewers should be able to clearly see how such judgment calls were made.
Put everything you can on the web – even field notes! You'll end up with far more material than you could ever get into the newspaper or on air, so use the power of technology to expand the news hole.
Fostering Change with Audits
Any FOI audit should leave in its wake discussion about freedom of information and how local laws serve citizens. This alone is a positive thing, but often the audit was conceived of frustration with the status quo Π it was created to bring change, legislative or practical change – in the way that the law is working on the local, clerk-to-records seeker level.
To ensure that your audit has maximum impact, coordinate with editorial page editors in your community (and of course at your own news organization) to alert everyone of what's coming. Do not assume that everyone in the journalism community knows that you are conducting an audit, or even what an FOI audit is, for that matter.
After the series begins, coordinate coverage with meeting with elected officials, state attorneys generals. The governor, legislative staff friendly to FOI, and anyone else you can think of that needs to be informed on the issue. Again, do not assume that those who you most need to reach are reading the audit daily. Pull reprints together and mail copies to all political leaders in your state, along with a cover letter from an editor, or better yet, the governor.
Editorialize – every day the audit runs. Then set benchmarks for further editorials: three months, six months and a year later – and gauge progress toward the reforms suggested by the audit. Don't let it rest! You'll only get results from your audit if you work on the back end as hard as you've worked on the front end.
For information about almost every FOI audit ever conducted, visit www.spj.org/foia_toolkit.asp.
Mine them for tips, document ideas, sidebar inspiration and most importantly, for methodology. The journalists across America who have conducted audits all generously contributed their wisdom to this project, and most, if not all, appear within these Web pages. Call them – e-mail them – they respond every time and are incredibly helpful.
The Freedom of Information Center at the University of Missouri School of Journalism – which prepared this toolkit – has agreed to serve SPJ as a resource for anyone in the country thinking about conducting an audit. Call us – we'll be glad to help.
Charles N. Davis Executive Director, Freedom of Information Center University of Missouri School of Journalism (573) 882-5736 firstname.lastname@example.org
For more information about FOI Audits, contact Charles Davis, SPJ FOI Committee chairman, at 573/ 882-5736 or via e-mail.