By Chava Gourarie, CJR
This article first ran on July 14, 2016 on the Columbia Journalism Review's website.
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.”