It's a jungle out there

How well do public officials at your school comply with open-records laws? If you're not sure, consider testing them.

Georgia Dunn was not surprised when she learned that Ohio school districts performed poorly in an Ohio Coalition for Open Government study gauging compliance of the state’s open-records law.

The audit’s results, released in June, showed school districts released records the same day or the next less than 30 percent of the time -- the lowest rate of any type of public body included in the statewide audit.

Dunn, Ohio Journalism Education Association state director, said compliance with open-records laws has not been a high priority for schools. She hopes the audit teaches student journalists that just because a record is public, does not mean the public will have easy access to it. In the Ohio audit, more than 90 individuals from various media outlets and universities presented themselves as regular citizens to request public records from county governments, school districts and police departments. 

Auditors sought from each of Ohio’s 88 counties one record from each of the following categories: county board meeting minutes, county executive expense reports, police chief pay, police incident reports, superintendent compensation and school district treasurer phone bills.

Ohio is one of more than 25 states where compliance with open-records laws has been tested through a systematic audit in the last few years. A group of public policy students conducted the first systematic freedom of information audit in Rhode Island in 1997, said Charles Davis, executive director of the Freedom of Information Center. Since then, open-records audits have become increasingly popular, Davis added.

While open-records audits seem to be sweeping the country, relatively few student journalists or student publications have done them. Davis hopes to change that.

“So far, audits have tended to be statewide projects, these big massive things. I love them, and I think that they will continue ...But there are a lot of niche audits that are just sitting there,” he said. “There are a million different audits you can do at the local, county, municipal level.”

Freedom of information experts agree that audits, including those done by student journalists at the high school and college levels, can provide valuable statistics about open-records law compliance, are a great learning tool and can be the impetus for change.

At California’s Chico State University, a group of seven journalism students put together a small-scale “niche audit” of local and campus agencies in 2001 as part of professor Glen Bleske’s advanced reporting class.

The students requested 18 public records from a local college, a school district, a county office, a police department, a sheriff-coroner’s office and several Chico State departments. Some of the requested records include meeting minutes of public bodies, logs of 911 calls, landlord citations for health and safety violations and the salaries of public employees The Chico State audit revealed varying rates of compliance. The Chico Police Department provided the 911 logs with no problems, but students looking for the names and salaries of full-time Chico State professors were sent to three separate offices and then told to look on the Web for the information. 

Their search ended when a university library employee led them to the salary list.

“The important thing is that student journalists go out and ask for public documents. Student journalists should be doing that before they leave a university,” Bleske said.

Davis agrees. He sees campuses as an untapped source of niche audits.

“There is the potential for all types of audit work, and some of it is very interesting at that micro-level,” Davis said.

Through a grant from the Society of Professional Journalists’ Sigma Delta Chi Foundation, Davis has compiled information from state freedom of information audits and produced a one-stop “audit toolbox” to help other groups looking to do their own audits.

The FOI Audit Toolbox will contain everything needed for a group with virtually no background in FOI to quickly and effectively create a statewide or local records audit, stated Davis’ proposal to Sigma Delta Chi. It is expected to be published on SPJ’s Web site in early September.

“The [FOI] Center would be more than happy to consult with groups thinking about conducting audits, help develop questionnaires and training sessions for requesters, help analyze audit data and work with audit participants to develop story lines and sidebars,” Davis stated in the FOI Audit Toolbox proposal.

Why Audit?

Bleske describes an open-records audit as being like shooting fish in a barrel.

“You’re going to run into people who are idiots, they don’t understand the law, they don’t understand that public documents are public,” he said.

According to Bleske, it is a forgone conclusion what is going to happen -- some people will comply and some will not. A 2003 Montana open-records audit revealed that more than one-third of requests to police were denied. Sheriffs’ departments violated a California open-records law 80 percent of the time, a recent audit reported. 

In the Ohio audit, about 60 percent of requests for police incident reports were not granted on the same or next day. Yes, audits provide useful statistics about who complies with the law, but advocates argue that it is the stories behind the numbers that matter.“

Audits bring attention to the issue. They can provide really compelling anecdotal evidence of the denial of access,” Davis said. “A lot of times when you talk to lawmakers about this problem they say, ‘Aw, that’s not happening,’” he added. “Audits get right at that by saying, ‘Not only is it happening, but this is how often it happens right here in your own backyard.’”

Kaye Spector, general assignment reporter at Cleveland’s largest newspaper, the Plain Dealer, participated in the Ohio audit. Her request to the Cleveland Heights Police Station is counted in the 60 percent where information was denied.

“The first thing they said to me was, ‘A police report isn’t public,’” Spector said of her experience. “A police commander insisted on knowing who I was and what I wanted to look at the police incident reports for. I just kept telling her, ‘I don’t think I have to tell you that.’”

The police commander was wrong -- under Ohio law, she had no right to know why Spector wanted the incident reports, which, indeed, are public records.

After the commander “got snippy” with her, Spector said she left the office without receiving a copy of the record.

Many auditors have similar denial of access problems, some much more harrowing than Spector’s.

“I think its real value is in documenting how bad it really is in order to be able to press for change. It pushes legislators and policy-makers that there is a problem. I don’t think they are very willing to admit there is a problem,” Davis said.

After the Ohio audit, the state’s attorney general and top legislators called for greater open-records law compliance, with some offering suggestions on how to better educate record-holders. Although no legislative action has been taken yet, the Ohio School Board Association sent a newsletter and a guide about Ohio’s open-records laws to all Ohio superintendents, school district treasurers and school board members.

The dismal results of a 1999 Illinois audit prompted then-Attorney General Jim Ryan to push the General Assembly to pass a law that would give citizens the ability to appeal denied requests to the attorney general and local prosecutors. 

“If you have met this kind of resistance to compliance, and it's statewide, we’ve got a problem, and we better do something about it, and I will,” Ryan told the Associated Press at the time.

After passing the House, Ryan’s revision died in the Senate.Influenced by a 1999 audit, New Jersey passed a sweeping overhaul of its open-records law. The amended law stipulates that only records that are expressly listed are closed to the public -- all other records are open. It also created a Government Records Council to handle open-records disputes.

While Bleske and Davis say public agencies do not seem to learn much from an audit, at the very least, audits show the need for record-holders to be educated on the issue.

How to Audit

An audit consists of much more than going to an office and asking for records. It is a multi-step process that requires planning and coordination. Davis’ FOI Audit Toolbox takes auditors from making the decision to conduct an audit to planing, execution and publishing the results.

“It’s going to contain everything from training protocols to the electronic copies of every audit that has been done to date, all of the various documents that have been requested in various audits, sample letters, sample training scripts -- everything you need to do an audit,” he said.

When deciding what public records to request, Davis and Bleske agree that it is important to be sure that they are, in fact, public records.

“Go after really basic governance stuff,” Davis suggested for student journalists. “Ask yourself, ‘What are the basic governance documents of your [school]?’” 

The scope of the audit is one of the first things audit leaders need to decide -- will it be a collaborative effort, who will request the records and from where. Davis recommends that student publications at different schools work together to produce a multi-campus study of open-records law compliance. A publication can, however, decide to keep the audit on a smaller scale and in-house.

To ensure accurate results, the auditors must all follow the same methodology. In the Ohio audit, Spector said she met with audit leaders to decide how she should approach public officials. Her leader told her that it was important that all of the auditors give the same responses to questions. 

Bleske said auditors should be prepared to meet suspicion from record-holders.In most states, record-holders are not allowed to ask for names or identification from the requesters or the reason for the request, but the Ohio audit leaders went over with auditors how they should answer such questions if they were asked. 

Spector was told to pose as an anonymous, regular citizen to request the records.“

They really wanted us to play it a certain way,” she said. “A really important part of the audit was to not disclose that we were reporters.”

Davis said audits are all over the board on the confidentiality issue, but it is something that must be decided early on. In an audit he helped coordinate at the University of Missouri at Columbia, Davis told the students not to identify themselves as reporters unless it was necessary.

“If you walk into a government office and flash press passes around, you are treated much, much differently,” he said. “It gives the journalist the experience of the citizen. We get paid to get these documents. We’re promoted and evaluated based on how aggressive we are. It’s good for journalists to get the experience of being the citizen ...just walking into the office.”

Bleske told his students not to lie, but not to first identify themselves as reporters.

“It’s very different to go in and say, ‘I’m a reporter, I’m doing this story and I want this information.’ If they say, ‘Sorry I can’t get that for you,’ you can say, ‘Who is your boss and why won’t you give it to me.’”

Open-records audit experts say publishing the results of an audit is necessary. Articles about the audit provide the information needed to spark change to improve compliance. The FOI Audit Toolbox gives suggestions on how to write an audit story with a “punch.” 

With the release of his toolbox, Davis wants see to more audits done by the student press. He said journalists needing assistance performing an audit should contact him at the FOI Center.

“There will be no more excuses. Anybody could do it,” he said.

Fall 2004, Ohio, open records, reports