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Sunday, January 31, 2010
FOI Toolbox

'Getting to Yes' through negotiation

By David Cuillier

Accessing public records should be easy: ask and then get.

Unfortunately, many officials illegally deny valid records requests and you don’t have the time or money to sue. I asked William Ury, co-founder of Harvard’s Program on Negotiation and co-author of “Getting to Yes,” if we can apply his principles to the process of records requests and he said, well, “yes.” Here’s how:

ARGUE INTERESTS, NOT POSITIONS

Don’t argue your “position” — that you want a record because it’s subject to the public records law, and, darn it, you’re going to get it. The agency will argue its position: “Nope, we won’t give it out because some of it includes private information that falls under exemption 34(b).” Instead, argue your interest: to get information about a plane crash. The agency can argue its interest: to protect the privacy of a witness. Now you have room to negotiate.

SEPARATE PEOPLE FROM THE REQUEST

Don’t make the request personal. Be hard on the problem, but not on the people. Put yourself in their shoes. Be firm but open. Act inconsistent with their perceptions of journalists: be nice, empathetic and sincere.

APPLY NEGOTIATION JUJITSU

Bend like the willow; don’t be rigid like the oak. Allow officials to vent and don’t react to outbursts. Use silence after an unreasonable attack. The official will see that you aren’t going to escalate the confrontation, and it gives you time to cool down. Invite criticism and advice. Maybe a clerk will say the information won’t be helpful to you. Instead of snapping back, say “I am interested in what you are saying. Why won’t it be helpful? Are there other records that would be better?”

GIVE THEM AN OUT

Sometimes officials dig in their heels and feel like they can’t change their mind, lest they lose face. Allow several outs. “I know you aren’t hiding anything. Maybe the attorneys can look at the law and see if the information is disclosable.”

LISTEN

Listen and then repeat what you heard. This shows that you’re open to their concerns. Acknowledge their interests. “I understand you don’t want to let personal information get out. I don’t either. Let’s figure a way to redact that information so we don’t let anything out that shouldn’t be released.”

USE “I” TALK

Use “I” statements, not “You” statements. For example, say, “I think these records will be of interest to your constituents,” rather than, “You need to give these out because your constituents will appreciate it.” Also, use questions instead of statements, which are threatening: “The law says you need to provide the information.” Questions are nonthreatening: “Can you show me in the law where it says that information is secret?”

GET SIDE BY SIDE

Avoid talking to a clerk on one side of the counter with you directly facing from the other side. This physical configuration sets up subconscious psychological opposition. Talk side by side.

CALL DIRTY TRICKS

If they use dirty tricks, call them on it. Raise the issue and question it, focusing on the action, not the person. Don’t seek to teach them a lesson.

SUGGEST OPTIONS

Be open to the idea that there may be many different records that can satisfy your interest. Discuss solutions with colleagues and offer to brainstorm options with the agency. Make their decision easy by highlighting what they would get out of it.

REGROUP

If you are still told “no,” don’t argue, especially if you feel your hackles going up. Take notes on what they say and tell them, “I need to do some more homework to make sure I understand this. Let me get back to you.” Ultimately, you might end up suing, but at least you tried to resolve it through principled negotiation first.

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