Among the most basic building blocks of powerful investigative reporting are public records –government documents that provide bulletproof evidence of anything from a change in water quality to the ownership of a company or tract of land. In the United States, Freedom of Information laws date back nearly half a century, and although there are growing obstacles, journalists generally operate under a presumption of the right to access.
In most of the world, however, Freedom of Information laws are less than two decades old. More than 90 countries worldwide currently have such laws, and the text of the statutes is often exemplary. But according to a new report by Center for International Media Assistance, implementation falls short of the laws’ promises: requests are ignored, records get lost, compliance offices are woefully understaffed.
“Parliaments enact these broad, vague Freedom of Information statutes, but it’s a check that no one can cash,” said Richard Winfield, an author of CIMA’s report and former general counsel to the Associated Press, at a Sept. 12 presentation of the group’s findings at the National Endowment for Democracy in Washington, DC.
In six developing countries with recent Freedom of Information laws studied for the report, the majority of public record requests were not fulfilled. Up to 36 percent of the time, the authors found, the requests were not even acknowledged. For example, South Africa’s Promotion of Access to Information Act is one of the most advanced in the world on paper, but a study found that fully two-thirds of public records requests are entirely disregarded by the government.
How can journalists and citizens fight back?
Here are some tips – drawn from the CIMA report as well as ICIJ’s experiences around the world – for getting uncooperative public officials to cough up public records:
· Start simple, local and practical.
One of the key recommendations from the report’s authors is to begin with straightforward requests of clear public interest. Robert Freeman, who directs New York State’s Committee on Open Government and frequently conducts international trainings on public record laws, suggested topics such as local water quality and other environmental measures, public employee salaries, and government contracts. Such requests often yield stories that are of strong interest to local audiences, he said, and “you have to learn to walk before you can run.”
· Build a culture of compliance.
In the same vein, requests of extreme complexity or sensitivity – such as demanding years of memos to the president from the 1980s – are unlikely to succeed without an existing relationship with public records officers. Using public records laws is a long term investment that depends on government officials learning to perceive them as routine transactions in which compliance will not get the official in trouble. “Laws are like a muscle,” said Craig LaMay, an author of the report and a professor of media law at Medill School of Journalism. “If you don’t use it, it atrophies.”
· Do enough homework to be specific.
Public records laws do not require the government to search out needles in a haystack, and overly broad or vague requests are usually ignored or denied. The best results come when a reporter finds a source who works inside, or interacts extensively, with the government department in question and can provide the official title of the document being requested. For example, if you can help it, don’t ask for “mining inspection reports” – ask for the Mine Safety and Health Administration’s “Form 33A Site Inspection Summary” records.
· Find a champion in government.
Find a public official – an elected official or a staffer in a freedom of information office or other government unit – who will support your efforts to obtain public records. This official can help advance your requests both by making calls on your behalf within government or by speaking out in public when legitimate requests are denied. “Without a champion within the government that has credibility I think it is hard for Freedom of Information laws to work,” said Freeman, the New York State freedom of information director.
· Learn to avoid the traps.
Freedom of Information laws often contain exemptions or vague language this is exploited by agencies that do not wish to comply with requests. LaMay, the Medill professor, described an Illinois state law that exempts official memos that express opinions from disclosure. Reviews under this provision require requests to be sent to the Attorney General’s office, where they are delayed for months at a time – often too long for a response to be useful. The challenge is to learn these traps and write public records requests that avoid them. For example, a request in Illinois could ask for specific types of records that do not fall under this category, or even request records “excluding memoranda that express opinions.”
· Use the court of public opinion.
In many countries, public opinion is a quicker, more reliable and more affordable forum for disputing denied requests than the courts. Freeman advised a Peruvian magazine editor years ago to challenge a denied request in court, only to be told laughingly: “Oh, you Anglos! You trust your judges.” Government stonewalling can sometimes become a story in itself, Freeman added. Persistent coverage of a government’s refusal to turn over public documents can galvanize interest in the problem they are trying to hide, and ultimately it becomes easier for the government to simply turn over the documents.
· Consult the experts (like us!)
There are organizations that can help with Freedom of Information requests in all corners of the world. ICIJ has launched a research desk led by investigative guru Margot Williams, and while we won’t write your record requests for you, we are glad to offer advice. We've also compiled a country-by-country guide to Freedom of Information laws and the basic steps to filing a request. The Center for International Media Assistance’s report offers a long list of helpful recommendations, and national and regional investigative reporting groups will often be the best sources for your country. If you’re looking for the nearest investigative reporting shops, the membership of the Global Investigative Journalism Network is a good place to start.
· Check out your country’s Freedom of Information rating (suggested by ICIJ member Mar Cabra, @cabralens)
The handy website Global Right To Information Rating allows you to look up your country’s Freedom of Information law and see how it stacks up against others around the world. Each country is assigned a score based on its overall level of transparency (but beware: the ratings are based on the provisions of the law, not the practices on the ground). One of the most helpful sections of the website is its Country Data page, which includes links to the text of each country’s public records law. If you click through to a country (for example: Peru), the site also cites the specific legal statutes that define key aspects of the law such as its scope, its requesting procedures, and its appeals process.
· Address the right institution and ask for a specific format (suggested by reader Miriam Forero Ariza, @Miriescribe)
It may sound simple, but this is one of the best ways to avoid unpleasant surprises when making a Freedom of Information request. Once you’ve figured out the form or documents you want with as much as specificity as possible, make sure to find out which agency produces them and which office handles that agency’s Freedom of Information requests. Legitimate requests sent to the wrong places will get delayed or may be ignored entirely. In addition, describe the format in which you would like your response – such as via email, in hard copy, or on disk.
· Use websites to facilitate requests and search existing requests (suggested by reader Jean James)
We’re not sure how widespread this is, but websites in some countries are starting to compile public records requests and make them searchable for the public. Many of these sites also facilitate public records requests on behalf of users. In the United Kingdom, the website WhatDoTheyKnow details which public authorities can receive requests and lists existing requests to show which ones were successful, which were denied and which are still in process. Readers can scrutinize the explanations provided by authorities for denials. In the United States, the site MuckRock allows readers to submit public records requests through web forms, and then publishes the responses online. The US-based website FOIA Machine also facilitates both the submission and tracking of public records requests, and aims to be fully functional by early 2014.
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