Join IRE at our Cleveland Meetup!

If you're in the Cleveland area, we hope you’ll join us for a Meetup on Sunday, Oct. 9. We’ll be gathering at Jukebox starting at 3 pm.

This event is open to any member of our industry who has a passion for investigate reporting. Seasoned veteran? Rookie on your first beat? Student journalist trying to break into the field? We'd love to meet you and hear about your work!

Please RSVP on the Meetup page and, if you haven’t done so already, join the group.

By Carlett Spike, CJR

When Gannett announced in July that investigative-reporting legend Chris Davis would be joining its team, it was a shock to the industry. In recent years, Gannett had claimed an interest in investing in ambitious reporting after suffering major hits in circulation rates, but among journalists, its persistent reputation was as a corporate cost cutter. Hiring an editor of Davis’s caliber sends a different message.

Two pieces Davis edited for the Tampa Bay Times in the past year—“Insane. Invisible. In danger,” and “Failure Factories,”—won Pulitzer Prizes. At the Times, he also edited a 2014 Pulitzer winner. While at the Sarasota Herald-Tribune, another piece he edited in 2010 won a Pulitzer, and two others he worked on in 2008 and 2010 were finalists.

What could Davis, who in August became vice president of investigative journalism at the USA Today Network—the new umbrella name for Gannett-owned papers—possibly gain from the media mega-giant? Davis spoke to CJR about why he took the job, his plans to beef up Gannett’s investigative work, and what makes for a Pulitzer-worthy investigative reporting project. This interview has been edited for length and clarity.

 

What does your typical day look like?

It’s a little hard to judge at this point because nothing much has been typical. I’ve been spending this first month trying to get a sense of how Gannett does business. When you’re talking about 100-plus papers, getting to know what’s going on and the people can take time. I’ve spent a lot of time talking to people around the country about the stories they are working on and how they are approaching them—so a lot of meetings, and various conversations about journalism.

Can you further explain your role as vice president of investigations, and can you talk about why this role is important to you?

The idea behind this job was to have someone to look at the great work that is going on and try to elevate it even further. Joanne Lipman [Gannett’s chief content officer], who hired me, was telling me that Gannett has so many people working on good stories, but some of their stories weren’t lifting to their true potential. So they wanted someone to really focus on that kind of in-depth reporting, to corral the resources that we have, and to organize big reporting efforts across the country. The reason I took the job was because of the unique challenge and the unique opportunity here. We have so many local papers around the country, with boots on the ground and the ability to do a breadth of reporting that most places don’t have. 

What were your initial talks with Gannett like when they came to you with this position? What ultimately sold you?

I got a call from one of Joanne’s folks, and he described the job and made a pretty good pitch. But early on I was very happy at the Tampa Bay Times, so I wasn’t in a big hurry to leave. In the end, the more I talked to people [over two months] in the company and outside the company about what seemed to be happening at Gannett, with this emphasis on investigative reporting and the opportunity to use a huge network to do investigations, I got more and more intrigued. That led to more conversations, and here I am. The idea of getting in on the ground floor of something really exciting and really unique was the draw for me.

What do you think this new position says about Gannett’s journalistic ambitions now and in the future, especially as the company continues to refine its strategy?

To me, it’s a clear signal that the editors here are putting journalism first, particularly investigative journalism. They could have hired all sorts of people, but they wanted someone who could come in and really drive the most important kind of journalism, which is watchdog and investigative work. I think it shows a clear commitment, and it was one of the reasons I was intrigued at the outset. They want someone who is exclusively focused on investigative work to be in a top-level position. I think that says a lot.

What are some of the logistical aspects of the job—how many journalists are you overseeing, where are you based, and how do you stay connected with the people you supervise?

I’m based in Tysons Corner, which is Gannett’s corporate office right outside of DC. I oversee the USA Today I-team [Investigative team] of about 10 journalists and work directly with their editor, John Kelly. Our team is dispersed across the country and we have over 100 newspapers, so I am also working with the editors of the papers to identify the most high-impact stories they are working on and what resources they may need.

To keep in contact, it’s phone calls and email, obviously. I am in the process now of creating a system to pitch big investigations that the Gannett network will get involved in. Also, there will be some sort of discussion groups or trainings that we will do by Google Hangouts or a webinar set-up, but nothing is officially in place.  

How directly involved are you with local investigations undertaken by individual papers?  

There will certainly be many investigations that I never see. I can’t look at everything that is published in every paper, nor should I, but the way I have been talking to other editors about it is that I am a resource to them for advice or whatever help I can give. I will get more involved in more ambitious stories, by either one paper or a group of papers that are part of the network. A good example is the story the Indianapolis Star broke on the USA gymnastics policies that were allowing coaches to abuse athletes for years. The story was fully reported before I was ever hired, but they asked me to take a look at this story and talk through some ideas. I helped by bringing in some other reporters from around the country to help the Indianapolis paper’s I-team broaden some of the reporting they were able to do. So that is how I think it will work with more high-profile stories. 

What are some of the pros and cons of having such a huge network of newsrooms?

If you look at some of the stories that were done by the network already, there have been some really good ones, but I think there are some lessons to be learned. One lesson is that it can be really difficult to have a whole lot of reporters involved in fact-finding or news-gathering. If you have 100 different reporters go out and get bits of information to seed into a central location, that has some drawbacks, because you are dealing with people who maybe don’t fully understand the story or some that have a lot more experience doing confrontational interviews than others. It ends up causing work because you have to go back and fill in the gaps that weren’t filled in from the start. It’s great to have resources and to expand the number of reporters working on something, but at some point it gets so big that it’s unwieldy. I think we have to really be cautious of going a mile wide and an inch deep. Just because we are set up as a wide network doesn’t mean we don’t want to go very deep on an investigative story.

Are there any particular topics that you think could really benefit from a collaborative approach?

I don’t have anything specifically in mind, but some of the projects the network has already done illustrate how effective it can be. They did some stories on the lack of tracking of abusive school teachers on a national level. So this is the kind of thing a network like ours can really bring to life, because these problems are all over the country. When there is this fractured regulatory system, it can be very difficult to piece together a picture of the problem because no one resource has it at their fingertips.

With the current state of journalism, including focus shifting away from investigative journalism in many newsrooms, how do you foresee working on big projects with newsrooms that do not have equal resources?

There is no formula for it, really. Different stories and different newspapers are going to have different needs. At the most basic level, we can provide data support, we can help with video, or social. We can also encourage papers around the country to run other papers’ work if it makes sense for people in their community. When we start talking about bigger efforts or papers that already have a strong history of investigative work, like  [the Indianapolis Star] or [The Arizona Republic], then we can provide higher levels of involvement to help them. That would be getting them reporters or certain editing expertise to push the story to the next level. One of the areas we want to improve upon is our storytelling within our investigative stories. A lot of the past stories are data-driven stories and that’s great, but sometimes they are not as compelling because they lack in the storytelling department.

How will the changes you’ve seen in investigative journalism over the course of your career inform the projects you hope to take on?

The basics of investigative reporting are still the basics of investigative reporting, right? You have to be relentless, you have to ask tough questions, and you have to use records and data. That’s been true since I’ve been in investigative reporting for the past decade-plus. There are certainly more tools and data tricks now. I just want to make sure we are among the leaders in our abilities to use those tools and to keep up with all the different things that are emerging. Beyond that, I also think we want to be a leader in Web development, particularly for our big projects, to make them really pop on the Web.

What drives your passion for investigative journalism?

Righting wrongs and uncovering bad guys. When the government or the police or whatever powerful institution in charge are not uncovering the truth, we have the ability and obligation to dig into it and show what’s going wrong. That is it at its core. I also have come to believe that investigative journalism and in-depth reporting are the best chances newspapers have of weathering the current of woes that are upon us in this industry. I don’t think commodity news and the traditional, basic, breaking, quick-turn news is going to be where we make our bones. 

What about beliefs that audiences don’t have the attention span or desire to read longer pieces?

I think that has been proven wrong, at least from what I’ve read and what I’ve experienced. Anything that’s badly written or badly done, doesn’t matter if it’s long or short, people are not going to read it. If you have a compelling story and you’re revealing information that people are interested in that they didn’t know before, then they’ll read it. When I was at the Tampa Bay Times and the Sarasota Herald Tribune, the stories that got the most interest and clicks online were investigative works that are done well, narrative that is done well, and there was Katy Perry. The idea that people do not want to read long stories, I don’t think that’s right. They don’t want to read dull stories. But if you give them compelling work, they’ll read it.

Do you have a standard approach for finding investigative stories? When do you know you have all the necessary pieces to publish your findings?

I could probably talk about this for 30 minutes, but I’ll just give you some basic thoughts. I think some of the key aspects of good investigative work is it has to be new; people with compelling stories have to have been harmed; and there has to be somebody to hold accountable. If so, then it is probably worth pursuing.

A couple of great editors use the phrase “the story is done when it’s done,” and I believe in that. That being said, it’s easier to come at this when a story is not ready then when it is. The thing that I see a lot of folks do is pull up short. They prove the premise that they set out to prove, they do the data work, or they uncover evidence of the problem, and then they publish the story. It makes sense intellectually, but if you stop at just proving the premise and you don’t continue to report for story and find a compelling narrative, then it is not going to be as good of a read.

What do you miss about working in a typical newsroom and being closer to your reporters?

I’ll always miss Tampa because I had such a great team there and such great editors. It’s probably too soon to really know. One thing that comes to mind is the feel of working nationally. If I’m working with the Naples Daily News or the Indianapolis Star on a story, I don’t live in these places, so for me there isn’t a direct community relationship because I’m working with newspapers all over.

What do you read? Where do you get ideas?

Well, I read newspapers. I don’t have any that I read every day. Sometimes I go through periods where I cycle through magazines, and I’ll get a subscription for a while to Wired and then I’ll switch off and read the Times. Most of the reading I do is of daily journalism. I don’t get to read books nearly as much as I would like to, but I am a Game of Thronesjunkie and love those kinds of books.

Most of the ideas for projects come from beat reporters. I always encourage my investigative reporters to interact with beat reporters. Sometimes I would do formal meetings where I would sit down and go over story lists with reporters, but even just reading your own paper and seeing what reporters are working on. The two stories from the Tampa Bay Times that won the Pulitzer last year came from beat reporters. One was a story about mental hospitals that was an inquiry that began through a single story about one guy who had been seemingly unfairly kept in a mental hospital for many, many, many years. That prompted a deeper look at how our system was working there and led to “Insane. Invisible. In danger.”  

Student debt is quickly becoming a national crisis. But reporting on student loans and college finances has always been thorny, especially when dealing with complicated bureaucracies and patchwork data.

Earlier this year, for the first time ever, the Obama Administration released a comprehensive intersection of student population, college performance and “outcome” data, measuring with precise detail who gets into what school and what they do after graduation. But the Department of Education’s raw “College Scorecard” is a labyrinth of information covering some 7,800 campuses all over the country, broken down by almost 2,000 different variables – everything from enrollment demographics and SAT scores to repayment rates and post-graduate earnings.

Today, NICAR is offering a simplified, Excel-ready version of the database – College Scorecard Simplified – along with a data dictionary and step-by-step guide on how you can analyze data specific to your beat and start reporting. We’ve cleaned and pared down the original database to include the most usable fields, a step that will save busy reporters a great deal of time. We’re also providing a robust list of caveats, in addition to the DOE’s documentation and other important resources, most notably ProPublica’s Debt by Degrees project.

NICAR’s free College Scorecard Simplified database is accessible for reporters of any experience level to quickly download and analyze. Using the data, newsrooms can track and compare schools’ accessibility across different income levels alongside performance metrics and ultimate outcomes.

Many schools across the country are under budget constraints, so understanding how appropriations have impacted students can paint a vivid picture in your city or state. The Scorecard also provides insight into the world of private for-profit colleges, which have sprung up in cities – and online – across the country. Most importantly, the data covers all federal grant and loan recipients, so reporters can now measure the effectiveness of government aid across different types of students and schools.  

 

This project was prepared by Brett Murphy, the 2016 IRE and NICAR Google NewsLab Fellow. Special thanks to Annie Waldman at ProPublica and Andrea Fuller at the Wall Street Journal.

What happens when a state cuts $100 million from its mental health budget? Reporters from the Tampa Bay Times and Sarasota Herald-Tribune spent 18 months finding out. Their Pulitzer-winning investigation exposed deadly violence in Florida's mental hospitals, where staff shortages, regulatory fumbling and years of neglect were, for years, hidden from the public eye. In today's episode, we hear from Anthony Cormier and Leonora LaPeter Anton, two of the reporters who helped spur reform in the broken mental health system.

You can find the podcast on Soundcloud, iTunes, Stitcher and Google Play. If you have a story you think we should feature on the show, drop us a note at web@ire.org. We’d love to hear from you.

 

EPISODE NOTES

Looking for links to the stories, resources and events we discussed on this week's podcast? We've collected them for you.

• Read the Tampa Bay Times and Sarasota Herald-Tribune story “Insane. Invisible. In danger.”
• Watch the surveillance videos reporters gathered from Florida’s mental hospitals.
• Members only: Learn more about how the papers reported this story by downloading and reading an IRE Awards questionnaire (file 27226_Q.pdf).

 

CREDITS

Brett Murphy produced this episode. IRE Web Editor Sarah Hutchins edits the podcast. We are recorded in the studios of KBIA at the University of Missouri. 

 

MUSIC

Denzel Sprak (Blue Dot Sessions) / CC BY-NC 4.0

One Quiet Conversation (Blue Dot Sessions) / CC BY-NC 4.0

Between Stones (Blue Dot Sessions) / CC BY-NC 4.0

City Limits (Blue Dot Sessions) / CC BY-NC 4.0

By Jackie Spinner, CJR

This summer, the Illinois Legislature stiffened the penalties that can be imposed on public bodies that refuse to comply with the state’s Freedom of Information Act. HB 4715, part of a two-bill package known as “Molly’s Law,” allows courts to fine agencies up to $1,000 for every day that they delay in turning over documents after a court ruling. The penalty would be in addition to existing fines, which range from $2,500 to $5,000.

The law, passed in response to a family’s fight for documents related to their daughter’s death, was touted by politicians as strengthening the state’s FOIA laws. Certainly stiffer penalties would seem to do that by sending the message to public bodies that not complying with FOIA could be costly. And the new law also establishes a presumption that a public body is wilfully violating the law if it ignores a binding opinion from the state’s attorney general to release documents. 

But in conversations with a handful of journalists and advocates who follow FOIA law closely, I heard mostly skepticism that the new law, which goes into effect next January, will do much. The responses highlighted a general frustration with how easily public bodies in Illinois can—and do—ignore requests for public documents, not just from journalists but also from citizens.

Perhaps the biggest question about the new law was summed up by Tom English, interim editor at the Southern Illinoisan, who asked: “Will anyone end up having to pay?” Under existing law, which already allows for civil penalties when public bodies “willfully and intentionally” violate the state FOIA, fines are rare. The state attorney general’s office, which issues FOIA opinions, mediates disputes, and trains the state’s public FOIA officers, does not keep records on when state courts fine public agencies, said spokeswoman Annie Thompson. But it doesn’t happen often. (In one such instance in 2012, an Illinois Appellate Court imposed a $2,500 penalty, the minimum, on the Rockford Public School District for violating the law when it denied a request from the Rock River Timesnewspaper for a letter related to a principal’s employment.)

“The civil provision has been wholly ineffective at improving FOIA compliance,” says Matt Topic, a Chicago lawyer who has represented journalists with their FOIA court battles, including the one that forced the Chicago police to release the Laquan McDonald shooting video last year. “The new penalties are a step in the right direction, but I doubt things will improve substantially without significantly stronger penalties.”

When the new legislation was first introduced, it called for a doubling of the baseline penalty for failure to produce documents, up to a maximum of $10,000, even before the $1,000-per-day fine. But the Illinois Senate struck that part of the proposal. A spokesman for Rep. Terri Bryant, the Southern Illinois lawmaker who introduced the bill, said legislators felt that such a penalty would be too harsh while the state is grappling with a budget crisis—though of course, making the fine hit harder would have been the point of raising it in the first place. 

Several of the reporters I talked to, however, were uncomfortable with the basic approach of fining government agencies for noncompliance—because it is taxpayers footing the bill for an official’s refusal to disclose documents that the taxpayers are supposed to have a right to see in the first place.

“Fining them is stupid,” said Jake Griffin, assistant managing editor for watchdog reporting at the Daily Herald in suburban Chicago. He recalled a case in which the attorney general ordered a local police department to release squad-car footage sought by the paper. If the department had refused to do so and the Herald sought penalties under the law, “taxpayers would have to pay for it,” he said. 

Beth Hundsdorfer, a reporter at the Belleville News-Democrat in Southern Illinois also recalled a wait for documents—nearly a year, after the attorney general ordered the Illinois Workers’ Compensation Commission to turn over nerve conduction velocity tests from guards at a correctional center.

The paper eventually went to court, at its expense, to fight for the records. “The state hired a Chicago firm to defend their stance,” Hundsdorfer said. “So we, as in taxpayers, were paying for that, too.” In the end, the paper won and got the records. 

“If this new law offers a disincentive to stall, I think it’s probably a good thing,” she said. “But there are a lot of small, poor municipalities, that simply ignore FOIA requests. I don’t know how I would feel about socking a village that doesn’t have money to fill potholes in the street with a fine for not answering a FOIA. And, as a journalist, what happens to the money? It’s taxpayer money. I don’t want it. So, it’s interesting and definitely an incentive for open records release, but, as with all things, the devil is in the details.”

In the cases mentioned above, the Daily Herald and the News-Democratreceived binding opinions from the attorney general’s Public Access Bureau, meaning the public agencies were required to comply. That forum is designed to provide a less costly alternative than the court system to settling disputes. In 2015, the bureau received more than 4,700 requests for assistance with records requests from members of the public and the media; it released more than 1,200 binding and non-binding determinations. (The majority are non-binding).

One provision in the new law sets out guidelines for how public agencies can be penalized for failing to abide by an attorney general’s binding opinion. If the agency does not comply with or appeal the decision within 35 days, there is now a “rebuttable presumption” of a willful violation, triggering a potential penalty. 

But even in that case, a records requester has to file an action in court—and the amount of the fine ultimately depends in part on the discretion of a judge. 

“This is the point and the rub,” said Maryam Judar, executive director of the Citizen Advocacy Center, a nonprofit group focused on government accountability. “There always has to be a lawsuit.”

By Deron Lee, CJR

Not long after taking over as editor of the Des Moines Register in 2014, Amalie Nash told CJR that she was determined to uphold the paper’s “longstanding tradition of standing up for public records.”

So now, as she prepares to leave the Register after being promoted to the new position of West Region executive editor for Gannett, it’s fitting that the paper has just won a meaningful battle on the open-records front. The state of Iowa announced last week that it would no longer allow companies to unilaterally redact information from the public copies of bids for government contracts. The move was the result of a 2015 story by Register reporter Jason Clayworth that first revealed the practice, and a subsequent complaint Clayworth filed with the Iowa Public Information Board.

It’s the latest in a series of open-records victories during Nash’s tenure, during which the paper has filed numerous complaints with the Public Information Board and multiple lawsuits to gain access to public records. But Nash is the first to admit that the paper has lost some battles in the fight for transparency too, and even the wins can amount to just holding the line.

“I would love to say we’ve made a lot of progress,” Nash says. “We certainly have in many cases. … We continue to claw and claw. Unfortunately, it does continue to be more of a defensive battle.”

Indeed, the fight over better access to bids for state contracts was a defensive one. According to Clayworth, it was only in recent years that the state started to allow companies to choose what to redact from public view in their bids.

In the process of reporting on the state’s newly privatized Medicaid system, Clayworth sought records of public bids and discovered that would-be contractors were being allowed to redact whole pages and sections of documents. Redaction is permitted to protect trade secrets, but the missing material included company mission statements, executive summaries, even the names of executives.

“That Medicaid plan was highly controversial,” he says. “For there not to be complete transparency in the process is ridiculous.”

Last year, after Clayworth reported on the redacted bids and asked for an advisory opinion from the Iowa Public Information Board to resolve the issue, the administration of Gov. Terry Branstad said that it was reevaluating the policy. Last week, Branstad’s office announced that companies bidding on state contracts will no longer be allowed to unilaterally choose what to redact from public view; now, they will have to individually request any redactions they feel are needed to protect trade secrets, and they must cite specific provisions in law to justify each one. Fewer redactions should lead to stronger oversight by the media and the public of the bidding process.

In his effort to get the state to shift course, Clayworth had at least two factors working in his favor. One was the existence of the public information board, an agency that was created by the legislature in 2012 and charged with resolving open-records disputes out of court. Iowa is one of just a few states in which such a board has enforcement powers.

Another motivating factor for Clayworth was the knowledge that Nash, and the Register’s legal team if necessary, would have his back.

Clayworth, who has been at the paper for 18 years, says Nash brought a more aggressive approach to transparency issues, noting that she spearheaded two open-records lawsuits soon after arriving in 2014.

“We hadn’t filed a lawsuit for a number of years before she got here,” he says. “I don’t believe those would have been filed without her.”

Herb Strentz, a longtime transparency advocate and former director of the Iowa Freedom of Information Council, is more measured in his praise. Strentz has been critical of the Register under the Gannett regime, arguing that the paper has never fully regained the commitment to open government that it had under the longtime leadership of the Cowles family, which owned the paper until 1985.

But, he says, “Happily, Amalie has picked up some of that stuff that has gone by the wayside.” Strentz said he sees reason to hope “that Amalie has gotten the paper back on track.”

One of the 2014 lawsuits spearheaded by Nash, for a story also reported by Clayworth, ended in a settlement in which the state released videos and other records related to the death of an inmate in a Taser incident. The Register has also been successful in efforts to open up a hearing in a high-profile sex-abuse case and access meeting records for a nonprofit casino facing an IRS audit.

But not all the transparency fights have led to wins. The second 2014 lawsuit, in which the paper filed suit against the public information board in seeking video footage of alleged abuse at a juvenile home, ended in a court ruling against the Register.

And then there are the ongoing, multi-front struggles that seem to have no end in sight. Nash says she is concerned about access to police investigation records, which have become increasingly inaccessible in recent years as some Iowa law enforcement agencies rely on a narrow reading of the law. Access to investigative records will be the subject of the Register’s third annual transparency roundtable, in September.

“If you look at what’s going on with policing in our nation, the idea that these law enforcement agencies don’t have to turn over anything is just wrong,” Nash says.

The issue has come to the fore in the case of an accidental police shooting in Burlington, Iowa, for which the Burlington Hawk Eye is seeking accessto body-cam video. The Register is not directly involved in the case, butRegister attorney Michael Giudicessi has been representing the Hawk Eye, and Nash and Clayworth have followed the case closely. The same interpretation of the law that police are using to bottle up body-cam footage in Burlington, they say, is also frustrating the Register’s attempt to gain access to investigative files for other, lower-profile stories—even blocking access to such basic information as case-file numbers.

The Register has lobbied for a legislative fix that would open up investigative records to public view, Nash says, but that effort has been blocked in the statehouse so far, and it remains unclear whether the Burlington case, set to be heard in October, will help resolve the issue.

As she prepares to leave the Register, Nash says she plans to make transparency issues a priority in her new role as well. But she knows her new job will probably not give her the opportunity to take such an active part in open-records fights.

“I will miss that aspect of it,” she says. “It’s one of the things that keep me most motivated. I will miss the day-to-day decision-making.”

For the time being, with her start date and even her new location not yet set, she is still at the Register, still serving as vice president of the Iowa Freedom of Information Council. And even if the push for public records often remains an uphill battle, Clayworth says there’s no question that Nash has revitalized a culture of fighting for transparency at the Register.

“From my perspective, that’s her legacy.”

We’re already gearing up for the 2017 CAR Conference in Jacksonville, Florida, and we want your input.

What panels do you want to attend? What tools do you want to demo? What hands-on skills are you looking to learn, or to teach? Whether you'd like to be a speaker or not, please let us know what you want to see at next year's NICAR Conference, March 2-5. 

You can submit your ideas in this online form or email them to confideas@ire.org. We'll be going through all of the submissions this fall, and if you pitch a session we'll let you know by late January if it has been selected. The deadline to pitch ideas is September 23rd.

Want to know more about the conference? Be sure to visit ire.org in the coming months for information on registration.

By Jonathan Peters, CJR

Michigan’s primary elections, taking place today, may offer few competitive races. But one of them has offered a look at an unusual type of legal action—one in which a government entity sues a local media outlet in response to a public-records request.

These cases aren’t unprecedented. Often, they arise when a local government entity says it fears being sued after responding to a records request, and decides to go on offense. But they are, fortunately, uncommon, in part because courts generally have tended to take a dim view of the legal maneuver—which is what happened here.

The case began when The Daily News, in Greenville, used the state records law to request the personnel files of candidates for sheriff in two counties. The paper’s plan, the publisher said, was to “research whether there was anything in the candidates’ career history that might support or put in question their ability to uphold the highest standard of behavior and judgment required to hold the office of sheriff.”

One county released the files immediately. But Montcalm County, where Deputy Charlie Mahar and Undersheriff Mike Williams are opposed in the primary, responded differently. According to court papers and a storyin The Daily News, the controller-administrator released the candidates’ work histories but not their disciplinary or commendation records, which are kept in the sheriff’s office. Mahar’s attorney had asked the sheriff not to release those.

Shortly thereafter, the county invited The Daily News to submit a modified request for only the last four years of Mahar’s and Williams’s personnel files. The paper refused to do so, and then Montcalm County sued the paper—asking the trial court for a declaratory judgment to resolve what it characterized as a “statutory conflict.”

"Never about concealing information"

In court papers and at a hearing, Montcalm County attorney Timothy Monsma argued that the county faced a conflict between the state FOIA’s disclosure requirements and another statute protecting employee privacy rights in discipline records over four years old. He said Michigan courts have not resolved the inherent conflict, and that the county faced inconsistent obligations and liabilities.

“This case was never about concealing information or preventing the disclosure of public records,” Monsma told me. “The county took no position on whether the records should or should not be disclosed. However, the county considered this the best way to protect the taxpayers’ resources, by avoiding additional subsequent litigation, while also providing the interested parties (i.e., the candidates and The Daily News) with an opportunity to be heard on the issue.”

Meanwhile, attorney Joseph Richotte, who represented The Daily News,argued—in court papers and at the same hearing—that the county had no right to sue the paper. FOIA lawsuits are of two kinds, Richotte argued: one brought by a requester after access has been denied, and a second, known as a “reverse FOIA,” brought by a third party who claims “a common-law or statutory right” to block the release of records about themselves.

A declaratory judgment action filed by a government entity itself to resolve a conflict doesn’t fit either of those categories. Therefore, Richotte said, the court lacked jurisdiction because Montcalm’s action wasn’t even authorized by law.

The judge, who had temporarily blocked release of the personnel files, agreed. In his ruling, the judge ordered the county to release or deny access to the requested records, in whole or in part, under the state FOIA—in other words, to respond to the paper’s original request, following the path set out by the FOIA, rather than a declaratory action. That was the proper course, he said, for any records dispute.

After the court ruled, Montcalm County did respond—and it released the personnel files the paper had sought. Monsma, the county attorney, told me, “Although we do not agree with [the court’s] conclusion, we respect the … ruling, and further appeals would not provide the cost-effective or expeditious resolution that the county was hoping to procure.” The county released the files, he said, because “the public interest and statutory language seemed to weigh in favor of disclosure.”

And for the record, the files did contain some notable items, as The Daily News reported.

For example, Mahar’s file revealed that he was once disciplined in connection with an affair he had with a woman he met while investigating a criminal sexual conduct complaint she filed against her husband. Mahar and the woman sometimes met during his patrol shifts, making him unavailable to take calls and radio dispatches. Meanwhile, Williams’ file revealed that he was once disciplined for losing nearly 11 grams of cocaine, given to the department by the DEA for a training exercise involving a drug-sniffing dog.

Frustrating the purpose of FOIA

I have some sympathy, in this case, for the county’s desire to clarify its obligations and minimize its liabilities. But that can’t come at the expense of open government—and beyond the facts of any particular dispute, the practice of suing requesters undermines public-records law.

As I wrote last year, these lawsuits filed against record requesters create a real risk that the free flow of information will be chilled. You can even liken the actions to SLAPPs, because they force requesters to surrender or hire an attorney to defend them, a burden that many can’t bear.

Moreover, these legal actions frustrate the purpose of the typical FOIA statutory scheme, which gives the requester alone the choice of going to court, and requires the government to pay the litigation expenses if a requester prevails.

A declaratory action is basically an end run around that scheme. It creates a scenario, as Richotte argued in a motion, in which “every person who requests a public record now does so at the risk of being sued”—in an action, no less, that could require them to pay their litigation expenses even if they prevail, because declaratory actions do not follow the same fee-shifting rules.

Even if you’re sympathetic to the government, that’s too high a price to pay.

A team of journalists at The Atlanta Journal-Constitution uncovered a nationwide phenomenon of sexual abuse in the medical community. Thousands of doctors, many still practicing, had a lurid history of sexual misconduct, their crimes hidden from the public. On this episode, we’re talking to reporter Carrie Teegardin and illustrator Richard Watkins about how they found victims of abuse all over the country and told their stories.

You can find the podcast on Soundcloud, iTunes, Stitcher and Google Play. If you have a story you think we should feature on the show, drop us a note at web@ire.org. We’d love to hear from you.

 

EPISODE NOTES

Looking for links to the stories, resources and events we discussed on this week's podcast? We've collected them for you.

• Explore The Atlanta Journal-Constitution’s series “License to betray.”
• Learn more about how the AJC did this investigation.
• Listen to our podcast episode on the Boston Globe reporters behind the movie “Spotlight.”
• Members only: Get resources and tips on investigating doctors and health care.

 

CREDITS

Brett Murphy produced this episode. IRE Web Editor Sarah Hutchins edits the podcast. We are recorded in the studios of KBIA at the University of Missouri. 

 

MUSIC

Gnossienne 4 (Chad Crouch) / CC BY-NC 3.0

August Summer Nights (Kai Engel) / CC BY-NC 4.0

Dry Air (Podington Bear) / CC BY-NC 3.0

Sad Saz (Podington Bear) / CC BY-NC 3.0

I’m So Glad That You Exist (Will Bangs) / CC BY-NC 3.0

By Chava Gourarie, CJR

The team behind Muckrock, a nonprofit that helps users navigate government records laws, launched a project today that aims to catalog all of the reasons state agencies give for rejecting public records requests. In doing so, they hope to shed light on the network of state laws that impact the public’s right to know, thereby helping journalists and citizens appeal when their requests are rejected.

Michael Morisy, Muckrock’s cofounder, says the project will use the 22,000 requests already processed through Muckrock as its starting point. It will also turn to crowdsourcing from the organization’s community of researchers, journalists, and citizens to begin compiling the database of exemptions.

Morisy says the debate surrounding the disclosure of police body camera footage is partially what inspired him to embark on the project.

In the past week, both Missouri and North Carolina passed laws restricting access to police body-cam footage. North Carolina’s law, one of the most restrictive to date, states that both body-cam and dashcam footage are not considered public records. Missouri’s law would both restrict access to footage during ongoing investigations and exempt footage if filmed in a private place, such as a school or home.

Similar laws are being discussed in other state legislatures as cellphone footage continues to challenge police accounts. In the wake of Alton Sterling’s and Philando Castile’s deaths last week in Louisiana and Minnesota, respectively, the discourse surrounding police violence against minority men is only intensifying.

“The whole point of a body-cam is to provide transparency and accountability,” says Morisy, “and states are trying to exempt that very footage.” Michael Brown’s mother, Lesley McSpadden, was among those who campaigned for body-cams to be introduced in Missouri. Brown’s death at the hands of a police officer in Ferguson, Missouri, in August 2014 became emblematic of police violence against African-American men and marked the rise of the Black Lives Matter movement. “It would have given me the truth,” McSpadden said of the footage at a press conference earlier this year. “It would have answered a lot of unanswered questions.”

But while the debate over body-cam footage has received attention, many state laws that impact the public’s right-to-know don’t happen in the public eye. Morisy explains that while most states’ public records laws haven’t changed significantly since enacted, many other bills impact them. “Eventually the public records laws become like swiss cheese,” says Morisy. “Nobody really knows how many exemptions are in a given state’s public records laws because they’re buried in other unrelated laws.”

Laws governing education, for example, have exempted police records at private universities in Massachusetts from public disclosure, and agricultural trade groups are lobbying to be exempt from federal FOIA laws. 

Adam Marshall is a lawyer and fellow at the Reporters Committee for Freedom of the Press, which compiles guides to the public records laws of each state. He says it’s “absolutely correct” that at both the state and federal levels “there’s this partially invisible, ever-expanding web of laws that interact with public records laws that impact their effectiveness.”

Morisy says by compiling a database of exemptions and keeping track of them as they are introduced, it may make it more difficult for some of these restrictions to be passed in the first place.

In addition to providing a map of public records exemptions, the Muckrock project will help reporters and citizens appeal when their requests are rejected. Muckrock’s online tools simplify the process of filing public records requests by providing templates and automating follow-up responses if agencies don’t respond within the required timeframe, among other features, and Morisy hopes to do the same for the appeals process.

On the federal level, less than 3 percent of requests that are denied are appealed, but about 40 percent of those appeals are then successful, according to data released by FOIA.gov. This suggests that a large percentage of exemptions are improperly applied, and appeals are often worth the effort. But while veteran FOIA journalists know their best tool is to “appeal, appeal, appeal,” says Morisy, they are the exception. Most people who file requests never challenge the rejections.

Finally, Morisy says, he hopes the database will make for a more efficient process that will benefit all sides. “We’re hoping this will be a resource for agencies to better understand their obligations.”