State legislatures veer toward secrecy

Troubling legislation in four states would seriously undermine the public’s right to know and ability to hold government officials accountable.

Two of the bills — in Indiana and New Jersey — would restrict access to police body camera footage. Legislation in Florida would make it more difficult for citizens and the press to challenge improper government secrecy. And Massachusetts lawmakers are set to vote on a measure that, while aimed at improving the state’s public records law, could do the opposite.

Open government groups have raised concerns about each of the proposals.

Indiana: Police video recordings

A still of body camera footage from the Las Vegas Metropolitan Police Department captured in July 2015. The video recorded a confrontation between police and a man who fired shots at officers.

A still image of body camera footage from the Las Vegas Metropolitan Police Department captured in July 2015. The video recorded a confrontation between police officers and a man who fired shots at them.

The Indiana House of Representatives on Tuesday passed a bill that would impose numerous roadblocks on journalists and others who want to obtain police body camera and dash camera videos.

Police already have wide discretion to deny release of such recordings — decisions that can be difficult if not possible to challenge, according to the Hoosier State Press Association.

Under the legislation, House Bill 1019, only two classes of people would be entitled to inspect police video recordings: (1) those depicted in the videos, and (2) when a video shows the interior of a property, the owner of that property. Neither would be allowed to make copies of the recordings, but rather would only have a right to view them.

Anyone else, including reporters, would have to file a lawsuit to obtain a police video recording. Requesters would have to show that disclosure is in the public interest, does not create “significant risk of substantial harm to any person or to the general public,” and will not prejudice civil or criminal proceedings.

If a court orders release of a recording, police would be required to obscure a litany of depictions, such as acts of severe violence, anyone who is under 18 years of age, and crime victims and witnesses.

Requesters who prevail would not be entitled to get their attorney’s fees reimbursed.

The bill could also hamper newsgathering by requiring record requesters to know particular details of every video being requested. Requesters would have to provide the date and time of the activity that was recorded, where that activity occurred, and the name of at least one person who was “directly involved” in the activity but not in a law enforcement capacity.

The Hoosier State Press Association, Indiana Broadcasters Association and Radio Television Digital News Association are opposed to the legislation.

It now goes before the state Senate.

New Jersey: Police body camera footage, 911 records

Similarly, a New Jersey legislator has introduced a bill that would entirely exempt release of police body camera footage from the state’s public records law, along with audio recordings and transcripts of 911 calls.

The bill’s author, state Sen. Paul Sarlo, has said he might amend the legislation to allow for disclosure when police are involved in altercations.

Sarlo represents several municipalities that are being sued by the press for access to records about a 2014 incident in which police shot and killed a 23-year-old black man.

Florida: Reimbursement of attorney’s fees

A Florida bill would make it more difficult for the public and press to enforce the state’s public records law.

The legislation “would remove the requirement that government officials who intentionally violate the state’s public records law pay attorney’s fees when citizens take them to court,” according to the Tampa Bay Times.

Instead, the bill would make reimbursement discretionary, letting judges decide when plaintiffs who prevail in public-records lawsuits should have their attorney’s fees covered.

Many states have cost-shifting provisions similar to Florida’s current version, which often are the only way plaintiffs can afford to go to court.

The legislation advanced Tuesday in a state Senate committee; a state House of Representatives committee already signed off on a companion bill.

Massachusetts: Public records law reform needs reform

SPJNE President Danielle McLean and protesters in front of the Massachusetts State House during the Public Records Reform Rally on Jan. 21, 2016. Photo by Joyce Pellino Crane.

SPJNE President Danielle McLean and protesters in front of the Massachusetts State House during the Public Records Reform Rally on Jan. 21, 2016. Photo by Joyce Pellino Crane.

The Massachusetts Senate is expected to vote within the next few weeks on legislation aimed at improving the state’s public records law, but the proposal has numerous problems, according to Danielle McLean, president of SPJ New England and a member of SPJ’s national Freedom of Information Committee.

The measure, along with a companion House bill that passed late last year, seeks to limit some fees assessed to record requesters and provides for the possibility that plaintiffs who prevail in public-records lawsuits can have their legal expenses reimbursed. But as McLean points out, the legislation has serious problems:

  • It welcomes delays. The legislation would allow the government to wait more than two months to respond to record requests. Currently, officials are supposed to respond within 10 days, but the bill would expand that deadline to 60 days for state government and 75 days for local governments.
  • It restricts enforcement. The bill would require that public-records lawsuits be filed within 30 days of a denial being issued, a fairly narrow window to appeal. The legislation also does not mandate that plaintiffs who prevail will get their legal fees reimbursed; that decision would instead be up to a judge.
  • It fails to address gaping holes. The bill also does nothing to make the public records law apply to the governor, state Legislature or state court system, although it does authorize a study to explore that possibility.

McLean and other freedom of information advocates held a rally last week on the steps of the Massachusetts State House in Boston, calling on senators to amend the law so it requires faster responses to public records requests, provides stronger enforcement mechanisms and reduces fees charged to requesters.

Approximately 25 to 30 people participated in the rally, including journalists, activists and college students.

“During the rally, we had some awesome dialogue, made a lot of noise, and gained some good momentum for the cause,” McLean said.

Jonathan Anderson is chair of the Society’s Freedom of Information Committee.

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The secret state of Massachusetts

Over the past year, Massachusetts State Police informed a local attorney it would cost him $2.7 million for public records related to data about the accuracy of breathalyzer tests. And the Bay State Examiner was told by the department they would have to pay a $710.50 fee to get a public records fee estimate, after the news site requested copies of internal affairs files for 49 state troopers.

Massachusetts: Once considered the birthplace of American civil discourse, its government over the past four decades has transformed the state into quite literally, one of the most secretive in the country- recently earning an F grade for public access to information by the Center for Public Integrity.

Two weeks ago, a bill passed through the state’s House of Representatives that would improve the situation and be the first update to the state’s public records laws in 40 years. And while there is hope the bill will be strengthened when it goes before the Senate next month, the current version does not address many of the deficiencies of the state’s broken system and in some cases, makes it worse.

A broken system

Government agencies in the state have the ability to charge reporters, advocates, and citizens massive fees to administer public records requests, which they say, covers the labor and printing costs of fulfilling requests. Often they charge high costs to have lawyers review and make redactions on each requested page and make printed copies of the records, even when the documents are available electronically.

Challenging high fees or public records denials in court can be expensive and can often take years. And filing an appeal with the Secretary of State is largely ineffective, allowing government agencies to push the boundaries when deciding what records should be public and how much it should cost to administer them.

Boston Globe Spotlight Team Investigative Reporter Todd Wallack said he is regularly charged tens- of- thousands or hundreds-of-thousands by Massachusetts government agencies for public records, which many states provide for free. On several occasions he has been flat-out denied records.

“It is all too common when dealing with particular agencies and police departments [in Massachusetts] where I get really high fee estimates that stretch the imagination and look like alternative ways to deny a request,” Wallack said.

In Sept. 2014, Massachusetts State Police said a blogger could not obtain records relating to a 63-year-old murder case because it was still under investigation, even though the suspect was long dead.

And last spring, Wallack filed FOIA requests to the state police and the Middlesex DA’s office asking for the state police report for the 2013 Watertown shootout involving the Boston Marathon bombers. In response, the Middlesex District Attorney’s office held a press conference about the report and posted it on their website. But days later, the state police sent him a letter denying his request.

“How much credibility do they have when that same report is on the web and the DA sent out a press release?” Wallack asked.

The state’s public records law doesn’t apply to the governor’s office, the judicial branch, or the state legislature at all, allowing them to operate in the dark. And the state agencies that are subject to the laws, sometimes take months or years to administer a request.

Recently, the Massachusetts State Police was fittingly named the most secretive publicly-funded government agency in the country, winning the Investigative Reporters and Editor’s prestigious 2015 Golden Padlock Award.

But the secrecy has expanded to police departments across the Commonwealth.

Last spring, Massachusetts Secretary of State William Galvin made a series of rulings that gave police greater power to withhold and censor arrest records. In 2014, former Governor Deval Patrick signed a law that prohibits police departments from releasing reports or logs with information relating to domestic violence and sex crimes.

And NEMLEC, a law enforcement council that coordinates regional police activity and has a SWAT team that deploys armed vehicles and conducts forced-entry raids on Massachusetts homes, have continuously dodged FOIA requests.

Lack of enforcement

Over the years, it has been difficult for journalists to fight public record denials or exuberant charges.

In fact, the state’s Attorney General’s office finally began enforcing the law for the first time in five years last June, months after Maura Healey was elected to the AG post. And in that one case, the AG’s office ordered the Fall River Police Department to lower the fee amount for a request. But the police department was never prosecuted.

Without the state’s help in enforcing the laws, reporters, citizens and advocates have been forced to go to the courts for help, which can be an expensive and time-consuming route.

Massachusetts is one of just three states that does not allow people who were found wrongly denied access to public records to recover attorneys’ fees. And such suits often take years before they are ever heard, Wallack said.

“[Government agencies] recognize if journalists are denied information for a long period of time, that means a story might not get written at all or it may no longer be timely,” Wallack said.

The fight for public records reform

While there is a major push by state lawmakers and advocacy groups to try and open up some of the blinders, such efforts have been met with large resistance from the lobbyist group the Massachusetts Municipal Association, which represents cities and towns across the state.

Two weeks ago, the state’s House of Representatives unanimously approved a public records reform bill that would reduce public records administration costs, require agencies and municipalities to assign a public access officer to handle requests, and allows judges to reimburse attorney fees and litigation costs to requesters who were unlawfully denied public records.

The bill was introduced by state Representative Peter V. Kocot and backed by a coalition of 40 watchdog, civil rights and journalism organizations including the American Civil Liberties Union of Massachusetts, Common Cause Massachusetts and SPJ’s New England pro chapter.

But, as DigBoston thoroughly reports, the bill doesn’t nearly go far enough and in some cases, makes the situation worse.

For instance, the existing law gives agencies 10 days to respond to FOIA requests while the new bill gives state agencies up to 60 days and local agencies up to 75 days, with the option to apply for an extension with the supervisor of records. However, Common Cause Massachusetts Executive Director Pam Wilmot said the courts have ruled that the 10 days isn’t really a hard deadline for agencies to respond to requests.

“Even though there is something on paper, there is no effect,” Wilmot said.

Another issue DigBoston points out, is judges would have discretion over whether to award attorneys’ fees to people who successfully sued agencies over wrongfully denied records. Wilmot said judges would need to produce a written explanation as to why they are withholding attorney’s fees, which she suspects they would prefer not to do unless there was a good reason for it.

And the bill makes it harder to simply file a lawsuit for denied public records requests. As it stands, requesters have an indefinite amount of time to file a lawsuit, whereas in the bill, they would have only 30 days.

The bill would also not make the public records law apply to the governor’s office, the judicial branch, or the state legislature. But, a late amendment to the bill was added that would create a study commission to look at the future inclusion of the three bodies and other ways the legislature can be more open and transparent.

The road ahead

Wilmot said the bill is not perfect, but it is a step in the right direction. She said the Senate is expected to take up the bill in January, which, as a whole is typically more friendly to public records reform. She said she is optimistic the Senate will strengthen the bill.

“The Senate has been consistently more pro-reform in a number of areas and more willing to push the envelope when it comes to transparency,” Wilmot said. “Will it be everything we want? Probably not. But I think it may be close.”

Once approved, the bill would go to a conference committee, which would likely pass some kind of compromise between the Senate and the House bills, she said.

As for Governor Charlie Baker, who would need to sign-off on the final bill, he set public records procedures for state agencies in July, in an effort to improve transparency. But Wilmot said his office is concerned about having strict cost controls for municipalities when administering public records due to existing laws barring the state from mandating municipalities to spend more money without giving them more money.

It’s encouraging that lawmakers are finally taking public records reform seriously. But real reform that addresses all of the issues is needed, not something that gives public officials avenues to avoid having to turn over records that belong to the taxpayers and hardworking journalists. Massachusetts has been governed in the dark for too long. It’s time to pull up the shades and bring in some sunshine.

Danielle McLean is a member of the Society’s Freedom of Information Committee and President of Society’s New England Pro Chapter.

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Show why FOI matters

Sept. 28 is kind of a big day for the concept of democracy.

Yes, Congress submitted the U.S. Constitution on this day in 1787 to states for ratification. We all know how that turned out.

But Sept. 28 also is important for another reason: It’s International Right to Know Day, a worldwide event aimed at promoting open government laws and highlighting why they matter. The day commemorates the anniversary of when freedom of information groups from around the globe formed an international coalition called the FOI Advocates Network, of which SPJ is a member.

The network turns 13 years old this year.

Despite that impressive achievement — and unlike ratification of the Constitution, a historical event — the story of the public’s right to know is still being written: Laws governing disclosure of government-held information change and evolve, and there is a constant tug of war over access to public records and proceedings at all levels of government.

Journalists play a key role in that story — we have an ethical duty to do so! — and International Right to Know Day is another opportunity to make a difference.

Here’s how:

  • On Monday, Sept. 28, journalists and FOI advocates can commemorate International Right to Know Day by showcasing the impact of open government laws on social media.
  • To that end, journalists should highlight stories made possible because of open government laws. Did a public records request reveal important information for a story? Did that story effect some kind of change? Did you successfully challenge improper government secrecy? If you answered yes to any of those questions, you have a social media post to share!
  • Use hash tags #FOISuccess and #IRTKD2015. On Twitter, the handle @FOIAnet also can be referenced.
  • Post stories on the FOIAnet Facebook, too.

Jonathan Anderson is chair of the Society’s Freedom of Information Committee.

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FOI Win in Georgia: Defamation Law Repealed

An archaic law prohibiting criminal defamation has been repealed in Georgia, writes Matt J. Duffy, an SPJ Georgia member, and member of SPJGA First Amendment, FOI and Ethics Committee. Georgia removed its criminal libel statutes last month, and although the statute hadn’t been used in decades, this protects journalists from being arrested for exercising free speech. Read more here.

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The flow of information: Reporting on water in the west

Abrahm Lustgarten, an energy and environment reporter at ProPublica, had a seat right on the battle lines of the Western Water Wars. Having previously lived in a small town on the Colorado River, he developed an awareness of the water scarcity problem, especially as the drought got worse.  After relocating to California, Lustgarten sought to bring his experience and long-standing interest in the topic to an investigative piece focused on the importance of water in the West.

Abrahm Lustgarten of Propublica covers energy, environment, and most recently, the water wars in the Western U.S.

Abrahm Lustgarten of ProPublica covers energy, environment, and most recently, the water wars in the Western U.S.

His reporting led to a nine-part series called “Killing the Colorado,” which ran from May to July this year, and focused not only on the Centennial state but on issues in Arizona, Nevada (Las Vegas), and California. Lustgarten delved into federal subsidies for cotton under the Farm Bill, pollution problems at the Navajo Generation Station,  and a controversial “use it or lose it” law further enabling the misuse of water. Reporting the story was not easy; Lustgarten spent more than a year and a half collecting and requesting information, and learning an extensive amount about the history and laws surrounding water crises. “It was an enormous amount of information, like getting an informal master’s degree,” Lustgarten said.

The story began with “Holy Crop,” an in-depth look into how federal subsidies of cotton under the Farm Bill leads to water shortages, as the crop needs billions of gallons of water to be grown. Lustgarten did “everything under the sun” to obtain public records for the piece, he said, drawing upon court documents, litigation cases, land ownership deeds, peer review studies, and economic reporting under the Farm Bill. It was the latter documents that posed the greatest challenge, Lustgarten said. He filed a FOIA request to solicit records from the U.S. Department of Agriculture from the Farm Bill and subsidy program, and waited more than 8 months to receive the information – and incomplete information at that.

lustgarten4

The USDA doesn’t release information that the public actually wants to know, said Lustgarten. His reports came back with generalized info about the number of subsidies per town and the amounts granted, but no information about the individuals who received the money. It was, all-in-all, a FOIA failure, according to Lustgarten. The most recent Farm Bill allowed USDA to withhold information, and there wasn’t enough time to take them to court to get the necessary documents. It’s not an unprecedented response from the USDA: the Farm Service Agency denies more FOIA requests than any other segment of the department (about ½ of the department’s total denials), basing most on confidential, personnel, and medical records exemptions.

Lustgarten also reached out to agencies on the state level, but ran into similar issues. In California, a state law is designed to protect utility customers, by keeping the identity of water users secret and collection info on irrigation water districts only, not the users (i.e. people and companies) who get the water. But the documents were not where the real story was. In this case, going into the field and engaging in face-to-face interviews proved most important.

Lustgarten mapped out 161,000 acres of cotton fields in Arizona, www.propublica.org

Lustgarten mapped out 161,000 acres of cotton fields in Arizona, www.propublica.org

“These stories are, in the end, analysis,” Lustgarten said. “You’ve got to do the deep reporting, and understand the issue or else your story will just be a superficial version. Ask yourself what you personally think about the story, and use that analysis rather than just direct information you are told.” For example, Lustgarten said, once he found out how water law tells farmers to use their resources in a way that is not always sustainable, he exercised his own judgement. He returned to his sources, and asked them, “If the law allowed you to use less water, would you?” Their affirmative answers added yet another layer of depth to the story.

The problem with analysis is that the readers don’t always agree with the journalist’s point of view. For the most part, Lustgarten’s story received great public feedback, with readers welcoming a new and different perspective and a solutions-based story. However, other readers found fault with Lustgarten’s analysis, some arguing cotton is less water-intensive than Lustgarten claimed, others pointing out discrepancies between the Arizona and California laws discussed in the story.

 

www.propublica.org

www.propublica.org

However, Lustgarten’s story did call attention to a growing problem, and invite discussion and debate in the community.  “Nothing is more important than water,” Lustgarten said, and finally this underappreciated resource, vital for the economy, environment, and human health, was brought into the spotlight. Here are couple methods Lustgarten used to make his story stand out.

Historical background

Lustgarten drew on the introduction and implementation of the Farm Bill over time to explain his story, and touched upon the history of the region’s 15-year-drought and environmental dry spell. He researched early Arizona township organizations and supply and demand of resources during wartime, alluding to Civil War practices and an 150-year-old report to Congress by John Wesley Powell.

Public documents

Lustgarten worked with over twenty groups, including state and federal agencies; from the California and Arizona Departments of Water Resources to the National Weather Service and Environmental Protection Agency. In some cases, the information took up to three years to obtain. The main story these documents told were about money, Lustgarten said, the irony of the government charging individuals and companies less to use more water. To figure out what documents are best suited for the story, Lustgarten said he relied on government experts or lawyers, asking them what kind of state and federal documents were kept related to his topic of interest, and what the specific title and code of the document would be. He talked with FOIA officers at EPA and USDA, trying to identify which records would be most beneficial.

One-on-one reporting

Lustgarten can’t stress the human factor of investigative reporting enough. His one-on-one encounters with farmers, government officials (like the “Water Witch” of Las Vegas) and other members of the community assign a human face to the numbers behind the documents. And the natural landscape has a kind of emotional quality as well, as photographer Michael Friberg brought out in a series “A Wonder in Decline: The Disappearing Lake Powell in Pictures.”

Lustgarten5

 

The short story

ProPublica compiled the main points from the series into a notecard-guide, shareable via social media. The shortened stories are posed as a solution-based Q&A, identifying the problems and using graphics, maps, and charts to illustrate statistics. The notecards are an informative way to draw in an audience with perhaps less time or knowledge to dedicate to the full series. Instead of cutting the reporting short, the “Need to Know” article caters to a larger audience who might not have followed the entire series. Most importantly, the notecards point to various solutions for the readers to deliberate amongst each other. And that is how these stories invite and inspire change.

Have you dealt with drought or reported on the water wars? Email amayrianne@spj.org or tweet @amayrianne about your experience.

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Judging the Freedom of Information Act in environmental court

One misstep, one decision, one instant can unleash consequences that last a lifetime. Consider April 20, 2010, when the Deepwater Horizon oil rig explosion created an environmental catastrophe in the Gulf of Mexico, the fallout from which is still making news. While the first reports were made from the coast, the story has now moved into the courtroom.

Headlines scream breaking environmental news when an oil tanker or truck has a major spill, when a factory is found to be releasing toxic chemicals, or when a wildlife trafficker is caught and arrested (remember the man who tried to smuggle parrots in water bottles?) But what happens after the fact is sometimes overlooked. The court cases, the cash settlements, and the criminal punishments are as interesting as the original stories, and the Environment and Natural Resources Division (ENRD) of the Department of Justice makes reporting on them possible.

ENRD handles cases dealing with civil and criminal statutes related to the Clean Air Act, Clean Water Act, Superfund, and other lesser known environmental laws. It also handles conflicts over Native American rights and eminent domain actions to obtain private land for federal ownership. The Division is split into several categories, including Prevention and Cleanup of Pollution, Environmental Challenges to Federal Programs and Activities, Stewardship of Public Lands and Natural Resources, Property Acquisition for Federal Needs, Wildlife Protection, Indian Rights and Claims, and Appellate and Policy Work. The department is split into ten geographic sections nationwide, and is currently managing 7,000 active cases in state and territorial courts.

court-quote

I personally love looking into court proceedings and digging into legal issues. But there are a few reasons why it’s not attractive to everyone. For one, it takes an incredible amount of patience. The processing time between an original formal complaint and the final decision (then appeals, sentencing or settlement, etc) is months at best, never-ending at worst. During an ongoing case, lawyers, judges, and witnesses fall silent. And the best cases involving big-name companies will likely be settled in private behind closed doors, where confidentiality agreements and sealed documents are no match for FOIA. Of the nine FOIA exemptions, at least five can be used to block a  request for information that might come out during a court proceeding: including company trade secrets, witness medical records, law enforcement information, and internal agency personnel rules and practices. Finally, few people enjoy reading through the hundreds of pages of legal jargon that may accompany a case file.

One way to skirt this is to visit ENRD’s online press room, where releases include name of offender, prosecuting agency, details of the crime, and final decision and sentencing. In the last month, ENRD has published the outcomes of BP civil claim settlements, as well as environmental crimes committed by a Norwegian shipping company and an order to reduce emissions at a New Mexico power plant.

However, the press releases alone don’t give journalists a chance to dig deeper. It’s better to get your hands on court documents and sometimes, this can even be done without using FOIA. The Department of Justice puts out documents called “proactive disclosures” under subsection (a) 2 of FOIA, which are posted online automatically without any request from the public, and listed in the FOIA library. This includes final opinions, agency policy statements, FOIA request records, and certain administration staff manuals. Proposed consent decrees awaiting public comment are also available through the site and notices published in the Federal Register. Eleven cases are currently open for public comment, including U.S. v. District of Columbia Water and Sewer Authority and U.S. v. Alabama Power Co. Frequently requested records, final opinions and orders, and yearly summaries of litigation accomplishments dating back from 2004, can be found on the Selected Publications site (although no opinions are currently listed).  However, that’s not to say all information is readily available.

FOIA @ ENRD

If you do need to file a FOIA request with ENRD, what can you expect? The Justice department handles upward of 60,000 requests per year, but only 70 to 80 of those fall under the Environmental and Natural Resources category. The small number of requests means processing time is slightly quicker than the average for DOJ requests; about 30 days for simple requests, a year for complex, and 10 days for expedited requests. Only 6 ENRD requests were pending at the end of 2014, despite the division having only two full-time FOIA employees.

court-foia

ENRD has traditionally granted 30% of FOIA requests in full, and given partial grants in another 30%; consistent with the DOJ response overall. Only a small portion (generally less than 5 cases) are denied based on exemptions, while most are denied listing the reason as “no records.” Denials made last year were based on exemption 3, citing 5 U.S.C. § 574 and 28 U.S.C. § 651, and withholding information about dispute resolution communications and confidential mediation documents.

To file an ENRD open records request, contact Sarah Lu, FOIARouting.enrd@usdoj.gov.

Decreasing Wildlife Trafficking, Increasing Web Traffic

In the past few years, a joint DOJ task force has been focusing on wildlife trafficking cases, and publishing summaries of the cases in a new online database. I find this particularly interesting, not only because some of these stories can involve off-beat characters (i.e. water-bottle bird man), but because illegal ivory/rhino horn/shark fin trading are big problems in developing countries. And it’s not easy to get a look into the black market. More info about each case can be found in the FOIA library or by a records request, including a case caption or name, civil action number, judicial district, and date or year of filing.

WILDLIFE TRAFFICKING PROSECUTIONS
BLACK MARKET TRADE IN RHINOCEROS HORN ILLEGALLY IMPORTED PROTECTED BLACK CORAL
ILLEGAL IMPORTATION OF SOUTH AFRICAN LEOPARD HIDES AND SKULLS AFRICAN ELEPHANT IVORY SMUGGLING
ILLEGAL IMPORTATION OF ENDANGERED SPECIES NARWWHAL TUSKS AND TEETH
SAFEGUARDING PROTECTED SPECIES

Final note: In addition to the DOJ, there are several other sites that keep searchable court records, although access might require a paid subscription. A few of the most frequently used sites are:.

  • Public Access to Electronic Court Records (PACER) 
    • PACER is a national database for federal cases from U.S. district, appellate, and bankruptcy courts. You can search by party involved, by court locale, or with the case locator tool. Documents are available immediately after being electronically filed. PACER requires its members to register for an account, and may charge up to $3.00 for a document. The downsides are that some personal identification information, like name and address, are removed before the record becomes public, and that there are no pre-2004 criminal case documents.
  • Lexis Nexis
    • Lexis Nexis is another pay-to-use service, but searches also include documents such as newspaper articles and company information related to a specific query. There is a professionals option, which contains documents, dockets, and litigation histories, but users must have a subscription to access. On the other hand, there is Lexis Nexis Academic, which is free, and can search cases by specific citation or parties involved. I’ve usually found this strategy to be hit-or-miss when it comes to how much information is provided, but on the plus side, it’s free.
  • Free Law Online
    • This is an incredibly comprehensive and helpful site put out by the Gallagher Law Library at the University of Washington. It contains a list of databases including laws, bills, court opinions on the federal and state levels (not just Washington state); there are links for each provided by the National Center for State Courts and American Libraries Association. The site also gives suggestions for online law reporters and digests, and publishes a legal research guide for non-lawyers.

How would you judge your Department of Justice or court stories experience? Share your thoughts by contacting amayrianne@gmail.com or tweeting @amayrianne.

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Guilty by Omission: Tristram Korten and FCIR Investigate What Florida’s DEP Leaves Out

It started off as a passing complaint from a former contractor with the Florida Department of Environmental Protection; the word “climate change” was taboo. The contractor had been hired to write educational fact sheets about coral reefs, he told Tristram Korten, editor at the Florida Center for Investigative Reporting.  But every time he referenced climate change, he was told to remove or alter the phrase.

Korten knew if the tip turned out to be true, it would invite an interesting story. How could a state like Florida, rich in biodiversity and threatened by rising sea levels and extreme weather, be expected to protect its environment if a key agency could not address a major threat? Yet the whole story was based off a single source and as any journalist knows; that is simply not good enough. Korten needed more verification, but it would be a challenge. He’d have to prove a negative.

Did the Florida DEP really avoid the term “climate change?”

Korten and the FCIR’s investigation uncovered a major problem. Not only had the terms “climate change” and “global warming” dropped progressively out of public documents year after year, other agencies were boycotting the issue as well. It all seemed to coincide with the inauguration of new governor Rick Scott, who upon taking office in 2011, reorganized the DEP and appointed a new director.

Although there was no explicit order from Scott to the leaders of state agencies and Scott himself denied the claim, the findings kicked off an investigation that is still ongoing. Korten has reported omissions at the Department of Transportation, the South Florida Water Management District, and the Florida Department of Health.

How did he do it? In this case, there was no specific document to request, and no specific law to cite. Government officials refused to grant interviews; instead, Korten received short, dismissive email replies like “DEP does not have a policy on this.” Employees at state agencies were reluctant to talk, or insisted on remaining anonymous, for fear of losing their jobs.

Here are the tools and techniques Korten used to deal with those issues.

An email search. After filing a public records search for the information, Korten and his team employed a tightly controlled email search to look for explicit mentions of communications policies between agencies, or from agency leaders to employees. But the email search was kind of a needle-in-a-haystack approach, said Korten. He didn’t want to spend too much time on a fishing expedition through thousands of emails. However, his search did turn up one piece of evidence, a 2014 email from the Coastal office’s external affairs administrator to a regional administrator, telling him to avoid claiming “climate change” as a cause when he appeared in a National Geographic/Audubon documentary about sea-level rise. If using this approach, Korten advises journalists to request communications in their native electronic format to preserve the original text.

 

April 2014 email exchange between Florida DEP employees Michael Shirley, a regional administrator, and  Pamela King Phillips, the coastal office’s external affairs administrator. Story by Tristram Korten and fcir.org.

April 2014 email exchange between Florida DEP employees Michael Shirley, a regional administrator, and
Pamela King Phillips, the coastal office’s external affairs administrator. Story by Tristram Korten and fcir.org.

Linked In: Linked In is a great tool for finding current and former employees with various agencies. Because many current employees didn’t want to go on record for this story, Korten relied on finding former employees with valuable insight but no fear of retaliation. The best parts about this social media tool are being able to search by dates employed, and to see connections related to you or to other sources. Many ex-employees still balk at going on the record, however. Journalists can find and contact academics, contractors, lobbyists, and scientists with connections at this agency for more honest insight.

korten2

Linked In can be an invaluable tool in locating and connecting with sources.

Annual Publications and Reports. Korten and his team obtained the yearly DEP reports from 2010 (the year before Scott took office) up until 2015. This was an easy and convenient way to analyze the department’s priorities over time; as most agencies post their annual reports online for the general public. And there’s a simple technology that makes sifting through a hundred pages of pdf document feasible in minutes: the Ctrl + F (or find) function. Korten and his team ran a keyword analysis of PDF files on DEP’s public website — which included reports, agendas, correspondence and other communications. The result was a noticeable difference over the years, 209 instances in 20 documents in 2010 declined to only 34 occurrences in 2014. And Korten said most of the 2014 instances were merely references to older documents. Korten also suggests getting original drafts of the reports, if freedom of information laws allow. This way, you can analyze what edits were made, including erroneous omissions or rewordings.

Number of "climate change" references in Florida DEP reports, data collected by fcir.org

Number of “climate change” references in Florida DEP reports, data collected by fcir.org

Interviews, interviews, interviews. It’s crucial to attempt to get both sides of the story, even if one side refuses to talk. In Korten’s case, the lack of response from agency officials spoke volumes. And every example of censorship provided by an ex-employee served to strengthen the original tip. Korten said most of his networking took place in the state capital, Tallahassee, right at the heart of the government activity.

What’s next?

Korten is most anxious to see how his story and investigation will lead to the reintroduction of “climate change” into the public sphere. He wonders if the “ban” has impaired scientists’ and officials’ ability to carry out their jobs, and to what extent the former administration’s initiatives and laws have been dismantled. He’s hopeful for the future, now that the problem has been exposed.

“The response from inside the DEP was that people, many of whom were scientists, were frustrated with this taboo,” he said. “It’s going to be hard to put that restriction back on them.”

Ashley Mayrianne Jones, SPJ’s summer 2015 Pulliam/Kilgore Fellow, focuses on utilizing FOIA and open government data to improve investigative environmental reporting. Follow her blog for the latest tips, tricks and news updates. Email Ashley or tweet @amayrianne.

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Are we out of the woods yet? The FOIA fight with the U.S. Forest Service

Nature-lover or not, almost every child in America can recognize Smokey the Bear, the iconic ursine emblem of the U.S. Forest Service. You’d be hard-pressed to find someone who hasn’t heard of efforts to recycle paper, or to prevent wildfires. When it comes to educational material and campaigning — things the Forest Service wants the public to know — communication is free-flowing. But it isn’t always that easy with the USFS; in fact, they are one of the most secretive agencies environmental reporters will encounter.

The U.S. Forest Service, an agency within the U.S. Department of Agriculture, oversees 193 million acres of forest, grasslands, wetlands, and lakes, including private, public and tribal lands. The agency, led by Chief Tom Tidwell, is organized into 9 regions, each with its own FOIA contact.  The USFS is responsible for preventing and responding to forest fires, managing over 1,000 campgrounds, and conducting research on ecosystems and climate change. It seems like there shouldn’t be a problem requesting documents and data related to these topics; as past SPJ President and current FOI Committee Chairman David Cuillier put it, the USFS doesn’t exactly protect national security secrets. But for some reason, the agency has been shutting the media out, forming a rift between scientists and journalists.

Regional Offices of the US Forest Service, http://www.fs.fed.us/

Regional Offices of the US Forest Service, http://www.fs.fed.us/

The USFS’s recent failure to provide material pivotal in journalist Rhiannon Fionn’s investigation of drinking water contaminants led to the agency being ‘awarded’SPJ’s 2014 Black Hole Award. Fionn told SPJ that she attempted to interview an expert USFS scientist for her story over the course of a year, but was repeatedly redirected to public information officials and eventually told she could only do a scripted interview, which would be reviewed by the Office of Ethics in Washington D.C. Fionn refused, calling the agency’s behavior overt censorship and a threat to the public’s right to know.

Email correspondence between journalist Rhiannon Fionn and USFS scientist Dr. Dennis Lemly, as published in Coal Ash Chronicles.

Email correspondence between journalist Rhiannon Fionn and USFS scientist Dr. Dennis Lemly, as published in Coal Ash Chronicles.

 

 

 

 

 

 

 

 

 

 

 

 

The problem is, Fionn is not the only journalist who has encountered this roadblock. Four years earlier, Society of Environmental Journalists member Christy George shared a similar experience. As George was sitting down to interview a USFS scientist from Oregon, he received a phone call from the head communications official in D.C., ordering him to end the interview. There was never any explanation, George says, even though she had requested the interview days earlier and gotten it pre-approved by his supervisors. Read about her experience here.

Photographers, videographers, and documentarians were further threatened by imprecise wording on a set of rules from 2014 that would require a $1,500 permit for shooting projects on National Forest Wilderness land. Although aimed at commercial companies, journalists and other media groups feared for their First Amendment rights and protested for a specific exclusion. Chief Tidwell sent out a memo to agency leaders reaffirming journalism as a public service and giving the green light for news coverage “including, but not limited to breaking news, b-roll, feature news, news documentaries, long-form pieces, background, blogs, and any other act that could be considered related to news-gathering.” Encouraging, but the real issue is the weak and ineffective media policies that make this kind of miscommunication possible.

The Center for Science and Democracy agreed in their 2015 Government Transparency report , shaming the Department of Agriculture as a whole with C- in media policy, and a D in social media.  The USDA has not updated its general communications policy since 2003, the report says, and falls short of providing access to drafts and revisions, the explicit right of last review, and whistle-blower protection. “‘Loose lips sink ships’ appears to be management’s motivation.” — one anonymous USDA scientist says regarding the agency’s social media policy, which also stifles scientists’ rights to discuss research and hold personal views.

The Center for Science and Democracy's 2015 Report: Grading Government Transparency: Scientists' Freedom to Speak (and Tweet) at Federal Agencies, http://www.ucsusa.org

The Center for Science and Democracy’s 2015 Report: Grading Government Transparency: Scientists’ Freedom to Speak (and Tweet) at Federal Agencies, http://www.ucsusa.org

One doesn’t need to try too hard to find examples of Forest Service’s shortcomings. While the up-to-date budget performance information is explicitly listed right under the agency’s “about” tab, the other reports about regulations and policies were unavailable; the page listed as “under construction” when I attempted to access it earlier this week. As for the USFS FOIA site, it either has not been updated in a while, or all of the “frequently requested reports” are truly from 2008.

By no means does this suggest journalists should give up on requesting information from the Forest Service. But it helps to have some background information on the agency’s track record and to be prepared for common challenges faced in making a FOIA request. Here are some important takeaways from the U.S. Department of Justice’s Freedom of Information report.

– The USDA receives about 20,000 FOIA requests per year, 10 percent of which are for the Forest Service. In 2014, the Forest Service received 1,939 new requests. Of those 1,939 requests, 1,889 were processed. Yet only 825 (45%) were granted the full requested information, 601 (32%) were partially granted, and 248 (13%) were either withdrawn or referred to other agencies or departments.

– Reasons for denials: The most popular denial reason during 2014 was cited as “no records.” The most frequently cited FOIA exemption was Exemption 6, which deals with personal privacy interests. The Forest Service claimed that the information was protected because it dealt with ownership of historic and/or archaeological resources.

– Processing time: The average time to process a simple request is 27 days, whereas more complicated requests take about 50 days. Expedited requests are processed within 30 days (the average being 13 days).  Backlogs are common, the ten oldest outstanding requests are between 2 and 3 years old.

– Resources: From 2010 to 2013, the Forest Service maintained a staff of about 75 full-time FOIA employees. But in 2014, the number of staff  suddenly dropped to 25. Processing requests cost the agency anywhere between $2.5 and $3 million per year from 2010 to 2013, although litigation fees never surpassed $6,000. However, last year, $25,000 was spent on litigation, whereas only $70,000 was spent on processing requests.

– Record Keeping: The USDA adopted a new internal online database in 2011 to keep track of public records requests. This information is used to submit to the Department of Justice for their annual report and to record and determine the status of FOI requests. Anyone can submit a written request for information pertaining to themselves and their individual request.

The USFS FOIA Service Center can be contacted at 14 Independence Ave SW, Mailstop 1143, in Washington D.C., via fax to 202-649-1167, or via email to wo_foia@fs.fed.us.

Do you have a Forest Service experience to share? Tweet @amayrianne or email amayrianne@spj.org. 

http://www.fs.fed.us/

http://www.fs.fed.us/

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Shaking things up: Michael Corey on reporting earthquakes in fracking’s boom time

“And as we all know, Oklahoma has more earthquakes than California,” the seismologist said. But until Michael Corey from the Center for Investigative Reporting attended the American Geophysical Union conference last December, he hadn’t known that. Corey, who had previously covered earthquakes in his home state of California, was shocked. He had a new story.

Using earthquake catalogs and science scripts from the US Geological Survey, the Oklahoma Geological Survey, and the Berkeley Seismological Laboratory, Corey mapped seismic activity against state boundary lines. He discovered a surprising truth. Over the last decade, Oklahoma, a state with historically few earthquakes, had progressively become three times more active than California.

By Michael Corey, Center for Investigative Reporting

By Michael Corey, Center for Investigative Reporting

See the interactive map.

The question was why. In Corey’s original article from February, he uncovered that the likely cause of the earthquakes was an increase in injection wells, underground tanks where the polluted water from fracking is stored. But the oil companies were “a brick wall” and denied any responsibility, he said, so he relied on scientific studies to look for answers.

The majority of scientists and seismologists were incredibly cooperative, Corey says. They wanted the data to be used and made public, and helped to walk him through the interpretation of the information. However, that wasn’t the case with the Oklahoma Geological Survey, where both the interim director and lead seismologist could not be reached for comment. Corey also relied on court documents, in which a resident sued an oil company, building codes, and state emergency plans to report his story.

One problem was that “induced seismic activity (aka human-caused) is omitted from the USGS hazards model because the agency hasn’t decided how to quantify the risk. Meanwhile, Building Seismic Safety Councils rely on these models to update their code requirements every five years. With old or inaccurate information, Oklahoma’s architecture is left vulnerable. In this case the information is there, but no one really knows what do with it.

Listening to the Science: An Unconventional Way to Use Data in Your Reporting  

Corey decided to listen to the data. In a radio broadcast story debuted this weekend, Corey used an audio track to simulate the increase in earthquakes over time. He downloaded earthquake catalog data from the last decade from the Northern California Earthquake Data Center, and translated each data point through a synthesizer. Now each earthquake, represented by a chime-like “ping,” could be heard and imagined, different pitches and frequencies corresponding to stronger or weaker seismic activity.

It was a good alternative for a radio story, in which documents and data could be read aloud but not visualized. By 2014, the audio track is a constant clanging of bells and chimes, illustrating the severity of Oklahoma’s earthquakes. This, coupled with interviews, brought life to a story built primarily on geological data and scientific jargon.

“For the radio story we had to put more emphasis on the human voice,” Corey explained.  “With no documents or figures to show, we instead set scenes and characters, and bring in people who have experienced earthquakes.”

Listen to the full broadcast here.

Corey offers some advice to environmental journalists looking to report similar stories.

Michael Corey, www.revealnews.org

Michael Corey, www.revealnews.org

Get involved. Corey got the idea for his story attending his first geoscience conference. Not only do conferences and events like this generate ideas, they will also link you to important sources.

Seek a second opinion. Scientists, like journalists, rely on multiple sources before stating something as fact. Peer reviewed journals are your best bet, says Corey. This is especially true with oil company stories, where companies employ full-time researchers whose findings may be biased.

Become tech-savvy. In addition to the audio synthesizer track, Corey created visualizations and completed data analysis using tools like Quantum GIS and Python.

Stay modest.You’re not going to understand everything, so follow up and read about it. Show interest in the topic, but be careful not to write before you understand the issue. You could end up getting a lot wrong,” he warns.

Ashley Mayrianne Jones, SPJ’s summer 2015 Pulliam/Kilgore Fellow, focuses on utilizing FOIA and open government data to improve investigative environmental reporting. Follow her blog for the latest tips, tricks and news updates. Email Ashley or tweet @amayrianne.

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Know NOAA: Freedom of information story ideas from the air and sea

“NOAA reaches from the bottom of the sea to the surface of the sun, and touches every aspect of our daily lives,” a 40-minute introductory video (found online) instructs new agency employees. The National Oceanic and Atmospheric Administration posts an incredible amount of its employee expectations and administrative orders online, although locating the information requires patience, curiosity, and a deep dive though hyperlinks and sister sites.

But NOAA makes sure FOIA is something its employees learn about early on. Transparency is one of the few policies that has its own site: complete with training and tutorials for employees, contacts for the media, (actual FOI officers, not just media relations) and the verbatim administrative order complete with a list of descriptive terms and detailed information of who can reject an FOI request, and why.

Dr. Kathryn Sullivan, Under Secretary of Commerce for Oceans and Atmosphere and NOAA Administrator since March 6, 2014, reaffirms NOAA’s policy to open information in an introductory video.

Dr. Kathryn Sullivan, Under Secretary of Commerce for Oceans and Atmosphere and NOAA Administrator since March 6, 2014, reaffirms NOAA’s policy to open information in an introductory video.

In 2007, NOAA implemented a new rule closing the gap between scientists and the media. DAO 219-1, gives researchers and scientists explicit permission to share the results, aka “Fundamental Research Communications” of scientific and engineering research with the public, without prior NOAA approval. This includes media interviews, DAO 219-1 states, which can, but don’t have to be, approved and facilitated by public affairs. All information must be “on the record,” although employees can decline the initial interview.

For newshounds, it would seem as though NOAA had thrown a bone to the dogs. But even five years later, the Society of Environmental Journalists noted despite the open information policy, there were problems with additional policy guidelines and a lack of enforcement.

“That guidance document itself is problematic. Section 8, ‘Official Communication with the News Media,’ requires advance approval by the public affairs office whenever NOAA staff scientists give interviews or otherwise make statements about their work. The policy further generally requires public affairs officials to sit in on all interviews unless other arrangements are approved by the public affairs staff.These sorts of limitations on scientists’ communications with the news media (and through the media, the public) are simply unacceptable in a free society.” 

NOAA responded, stating an intention to work with counsel at the Department of Commerce (which oversees the agency and implements the DAO) to determine whether changes would be necessary. The most current version is here.

But here’s one issue with NOAA: There’s too much information, at least too much to sift through to find an easy answer to my preliminary question. As an environmental journalist, what can I learn from them? What kind of information do they provide, and what kind of stories can I write using the information? The bottom of the sea to the surface of the sun…it’s kind of a wide range. So what does NOAA actually do?

noaa.gov

noaa.gov

According to Administrator Sullivan and the NOAA intro video, NOAA’s purpose is to

  • maintain commercial fishing so fisherman can maintain a livelihood (includes aquaculture)
  • keep environment clean (through work with the US Coast Guard during oil spills)
  • maintain natural resource damage assessments, which assess damage and issue regulations regarding natural resources such as shorelines, vegetation, fisheries, animal life
  • collect remediation from responsible companies to restore environment after oil spill
  • provide climate forecasts to help agriculture determine which crops to plant and when
  • monitor hurricanes and extreme weather events and notify and prepare communities
  • help satellite operators prepare for disruption during solar weather forecasts
  • protect endangered species
  • protect life and property and enhances national economy
  • monitor aquatic areas for pesticide levels
Organization of NOAA's Departments, from noaa.gov

Organization of NOAA’s Departments, from noaa.gov

Recent stories citing NOAA include updates oil spill near Santa Barbara, Calif., and Greenwire’s expose of seafood fraud in aquaculture. But if there’s one thing NOAA has, it’s a wealth of climatic, environmental and economic data, including easily overlooked resources like satellite imagery and arctic ice report cards.  The potential for stories is endless, and maybe it’s impossible to cover them all. See the chart below for publication dates and your own story ideas.

NOAA/NCDC Climate Data and Services Daily
NOAA/NCDC World Ocean Database Quarterly
NOAA/NCDC Earth System Monitor The Earth System Monitor is a free publication that reports on NOAA environmental data and information programs, projects, and activities. We no longer have a mailing list. However, you can subscribe to the ESM RSS feed and be notified immediately when the e-version is published. Semi-Annually
NOAA/NMFS Fishery Market News Quarterly, Monthly, Weekly and Daily
NOAA/NMFS U.S. Foreign Trade in Fishery Products Monthly and Annual
NOAA/NMFS Recreational Fisheries Statistics Annual
NOAA/NMFS Commercial Fisheries Statistics Annual
NOAA/NMFS Fisheries Statistics of the US Annual
NOAA/NOS CO-OPS Tides and Currents Available on a real time basis
NOAA/NOS Web Mapping Portal to Real-Time Coastal Observations and NOAA Forecasts Daily
NOAA/NWS NOAAWatch
(NOAA Storms and Hazards Portal)
Daily
NOAA/NWS Weather Forecast Four times daily: 4 am; 11 am;
4 pm; & 10 pm (local time)
NOAA/NWS Warnings, watches, alerts & advisories Available on a real time basis
NOAA/NWS Graphical Forecasts Daily
NOAA/NWS National Maps Updated twice daily
NOAA/NWS National Radar Mosaic Sectors Available on a real time basis
NOAA/NWS Air Quality Forecast Guidance Shows Air Quality Guidance as 1-hr and 8-hr ozone concentration averages for the N.E. US updated twice daily.
NOAA/NWS Preliminary Climate Data Daily
NOAA/NWS Hydrologic Observations and Forecasts Available on a real time basis
NOAA/NWS Community Collaborative Rain, Hail and Snow (CoCoRaHS) network Daily
NOAA/NWS Graphical Airman ‘s Meteorological Advisory (G-AIRMET) Updated every 6 hours as required by forecast aviation hazards
NOAA/NWS Hourly Multi-Sensor Precipitation Estimate Web-Based Service Hourly
NOAA/OAR National Integrated Drought Information System (NIDIS) Daily

Ashley Mayrianne Jones, SPJ’s summer 2015 Pulliam/Kilgore Fellow, focuses on utilizing FOIA and open government data to improve investigative environmental reporting. Follow her blog for the latest tips, tricks and news updates. Email Ashley or tweet @amayrianne.

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