www.fathom.com/feature/35268/index.htmlWhose Record Is It, Anyway?
From: Columbia University | By: Karl Idsvoog
A lot of public agencies do not seem to understand the concept that public records are the public records. Whatever state you are in, one of the first things you want to know is your state's law on public records. What is available?
In Ohio, for example, the law states that records have to be kept in such a way that they can be made readily available. Electronic records usually have to be made available on the same business day. In Kentucky, the state has three days to respond to you. If you look at the public records law in Pennsylvania, I think the Mafia wrote it.
A couple of years ago, I asked the city of Cleveland for their public records policy. Under Ohio public records law, that policy has to be made readily available; they can ask for, but not require, a written request. The city of Cleveland said I had to submit a written request. I said, "That is a violation of the law." They replied, "We do not care. Submit a written request." They did not know that I was working for a law firm that was suing the city of Cleveland. All of this stuff was beautiful information that appeared in my legal declaration.
If you have access to the Web, you can go to the website for the Reporters Committee for Freedom of the Press. On this site, you can pull up the open records law for any state in the country. You can also call press associations and ask for their First Amendment counsel.
Approaching information requests
Be nice to the agency people, so that you do not get shut out when trying to find out about available records. It is really easy to go in with an adversarial position, but think about it: if someone comes to you with an adversarial position, are you going to be cooperative? Probably not.
Understand the process. For example, say you want to take a look at subway crime. Find out which departments do that and just go in and say, "I need to find out what happens if there is a crime. Who investigates? Can you take me through the process?" As they explain the process, ask them, "Is there a report written on that? What is that report called? Is there an annual report done? How is that tabulated? Who does this have to go to? Is it data-entered? Who does that?"
Once you understand the process and they have described all this stuff to you, then you know what to ask for. Whenever you can, get copies--just blank copies. "Can you give me a copy of that form?" You want to verify, because when you make your public records request they have to be able to provide those forms.
You may also want to go in broad, so that you can understand the process. I went into a department once and requested the personnel records of everyone in the department. I was only looking for the sick-time records of one individual, the highest-paid person in the county. She was a doctor who was working at the state hospital as well as at a county mental health facility. When we matched up her two positions, basically she was working both jobs at the same time and getting paid twice.
I did not want to tip my hand on what I was looking for by going in with that bullet approach. Sometimes you want to do that. For speed, or for other reasons, you might just want to say, "Give me this now." But if you go in broad and try to understand, they will not be as defensive or worried.
Tackling resistance
You do not usually have a problem under the Freedom of Information Act (FOIA), because the federal agencies have specific FOIA officers. Everything is set by time, and they have to respond. They usually do. Personally, I once got an FOIA back four and a half years after I had filed it.
However, a lot of times state and local agencies will not do anything. They say, "No, you cannot see that stuff." If you respond with a story saying, "They would not let us see that," they say, "It's not true. You can see it." You look like a jerk.
Who staffs these public agencies? The same people who staff corporations and churches and everything else. Human beings. And what do human beings do when they get in trouble? They lie.
The PR guy from Ford Motor Company didn't call up some reporter and say, "Hey, have I got a great story for you. Guess what happens when you slam into the back end of a Ford Pinto? The gas tank blows up and burns all the people inside." That is not how it works. The executives of tobacco companies stand before Congress, hold up their hand, then sit there and lie. They are no different from other corporate executives. You can go and read the court cases. You have classic examples of perjury after perjury after perjury.
First, know what the process is. When somebody from a state agency, a county agency, a city agency or whatever tells you, "No, you cannot have that," zap them back a letter--certified, Federal Express or whatever--recounting what you cannot get: "Dear Sir or Madam, I am disappointed that I was unable to get this, as you indicated this record is not available. If that is not correct, please notify me in writing within three business days."
If they are going to turn you down and give you a bogus reason, have them write it. Then you have a document. Documents are golden. After you get that document, say, "Thank you very much. Haven't you bothered to read the law?"
Recording your pursuit
What if they say, "Oh, I don't have time to write it down"? How do you document that? If you are going into such a situation that is crucial to your story and you are not recording, do you need to go in there with a second person? Does it need to be a witnessed conversation? How important is it?
You need to look at your overall story and plan it out so you can figure out how to play this situation. What is the story that you are trying to do? It may become a story about your inability to get access to important information. How are you going to document that?
Do you want to wear a hidden microphone or a hidden camera? Do you know the difference between a one-party and a two-party state? In a two-party state, both people in the conversation have to know they are being recorded. You cannot use a hidden camera. Or perhaps you can use a hidden camera, but you cannot record audio. In a one-party state, I can sit here with a hidden camera and we can talk, but no law is violated.
If the agency people ask you to leave, the key point becomes whether you are in a public space. If you are on a public sidewalk, in a public area of a government building or some other place where the public can normally be, it is not a private place of business. If they say, "Get out of here," you can say, "I'm not leaving." Now, if you are in a private office of a government building, they can say, "Get out of here."
Controlling your emotions
You really do not have to get upset with someone for not giving you a public record. I had a friend in Cincinnati who was concerned about a teacher who had a history of abuse. I said, "Get his personnel file. Personnel files of public employees in Ohio are public records. Just go in and ask for it."
They told him, "You cannot get it." So I went to the school's office and said, "I would like to see the personnel record of this person." They replied, "No, you cannot. Who are you?" I said, "It doesn't matter. I am just curious. Do you not understand that under public records law you cannot ask that?"
Do it in a nice fashion. When they refused, I said, "OK. Do me a favor, if you would. By not providing it you are violating state law. If that is what you want to do, it is up to you. But please put it in writing." They said, "Oh, just a minute." Out comes the principal, who said it was fine. I replied, "Just curious, sir. Why are your people here not acquainted with the public records law--citizens coming in here to ask for information?"
They can sit there and yell and scream at you. You should be used to someone yelling and screaming at you. One of the things you have to be able to do as a reporter is be in total control of your emotions. If you are going to get upset with something, it should be an act.
Using your emotions
I had an interview once where I needed a key doctor. Doctors are fun, because they have huge egos. That is why doctors are ripped off more than d**n near anyone else in society, because they think they are so smart and they have lots of money. I needed this guy to talk about all the problems we found in an investigation of a chain of alcoholism treatment centers called Raleigh Hills. Their spokesperson was Gale Storm, who appeared in the My Little Margie movie series.
Raleigh Hills was going out for drunks. They would find alcoholics, bring them in, ship them from one hospital to another, and double- and triple-bill Medicare. This guy had resigned as the medical director of Raleigh Hills. He did not want to say anything, because Advanced Health Systems, the parent corporation, was fairly wealthy and he did not want to deal with the hassles. So he is telling me all this stuff, but not on the record. I had my cameraman outside, ready to go, and I told him, "We will shoot whatever we can get. Shoot it off the shoulder and get ready to go."
The doctor said he was sorry, but that he was not going to do an interview. I said, "That's fine. But do me one favor. Do not ever call yourself a doctor. A doctor cares about people. You have a chance here to help thousands of people and you do not have the balls to do it. Don't call yourself a doctor, and don't call yourself a man. Go screw yourself." Sometimes you guess right, sometimes you guess wrong. He basically said, "Screw you. I'll do the interview." We sat down and did the interview.
Think about your strategy and tactics, even on a daily news story, when you are under the gun. What question do you ask and how do you ask it? You have to stay totally flexible, so that you can move. Maybe what you expect is not there at all. But think about that interview beforehand.
Dealing with the police
You have such an interesting situation in New York City. You have a city that prides itself on its ability to improve its long-term terrible crime record. How have they done that? According to their own words, they have managed to improve how they target criminal efforts.
How can we tell what the police are doing if the police won't show us records? A good question to ask if someone doesn't want to provide you with information is, "How does the public benefit from this?" That information sitting in a police file somewhere doesn't serve the public at all. They can always redact something.
Another part of your approach is a whole series of "Have you stopped beating your wife?" questions. Just say, "You guys certainly respect the law. Look, I certainly do not want anything that is exempt under the law. Not at all. But I certainly want everything that is a public record, and I'm sure you want to abide by the law. Right?" Is a cop going to say no?
Continue saying, "You certainly want to provide what the law says you are supposed to. Right? Jeez, do you mean to tell me that you guys have received no training on this? What does your policy manual show? There's nothing in your policy manual on how to deal with when a citizen comes in asking to see this? Is there a policy manual on this?" When they say yes, then ask, "Oh, could I see that? Because maybe that would save me some time." Now all of a sudden--and this is not at all unusual--you are sitting with the policy manual that the public officials are flat-out violating.
