Reporting of record
Great stories are born from use of FOI laws
“Documents are the backbone of great reporting,” said Frank LoMonte, executive director of the Student Press Law Center.
Documents cannot forget. Documents do not try to mislead, and can offer context and value in an alternative way to interviews and Google searches.
The wealth of information now available on the Internet does not replace the value of a records request. Searching for records online can be useful, but can become daunting or result in inaccurate findings. LoMonte said there is a perception that the Web provides unlimited information so there is no need for government records anymore. He stressed the importance of tracing information back to the right source.
It is important for student journalists to familiarize themselves with the essential investigative tool of open-records law. FOI laws provide student journalists with the opportunity to acquire interesting and useful information about public agencies’ practices and policies. The SPLC has an open-records letter generator on its website, located at: https://www.splc.org/foiletter.asp, which can save time when constructing a request.
Information that is obtained from open records requests can provide anything from a potential lead to a series of investigative articles. However, taking advantage of Freedom of Information (FOI) laws while working in student media can be a difficult undertaking: high fees, privacy concerns, processing complications and complaints of vague requests are among a few problems commonly encountered. Student journalists can do their best to make the most of open records requests, but these obstructions from government agencies can be discouraging.
To combat these problems, we offer you a walk-through of the FOI request process. These tips will help when you encounter the most common stumbling blocks requesters come across and allow you to find what you are looking for in spite of the obstacles.In December 2009, a study conducted by the Department of the Public Advocate Mental Health Advocacy Division in New Jersey released a report that illuminated a disturbing issue on college campuses: students removed from their on-campus housing, as well as from their college, due to suicide attempts. The report, titled “College Students in Crisis: Preventing Campus Suicides and Protecting Civil Rights,” highlighted “blanket involuntary removal polices” among universities’ response efforts and sparked the Student Press Law Center’s interest in seeking similar records. A report like this begs the questions: Do other schools have these policies? And are they enforced?
The SPLC joined forces with student editors in Indiana, Alabama, Colorado, Utah, Ohio and Maryland, and requested schools’ policies when dealing with suicide threats and attempts on campus, and assessed the institutions’ responses the requests. The SPLC requested any policies concerning the removal of students from campus housing, and/or from school enrollment, on the grounds of suicidal tendencies and/or suicide attempts; statistics on the number of suicide attempts on campus, and statistics on the number of times removal policies had been enforced. Out of 42 schools, 10 were found to have removal policies.
Letters were sent out to colleges and universities across the country in search of information about these policies and how they were implemented when met with students at risk of suicide. The SPLC provided the student editors with the framework for their open-records requests, which they modified for their own needs.
A $3,168 price tag prevented journalists at the University of Maryland’s student newspaper, The Diamondback, from receiving records from their university relating to suicide threats and removal.
Ben Slivnick, senior news editor for The Diamondback, ran into this fee roadblock after he submitted a FOI request to the university. After reviewing Slivnick’s request, the university required the knee-buckling fee from The Diamondback, claiming the request would require the review of approximately 3,500 pages of electronic and hard copy documents, located in at least four separate offices. In order to respond to this portion of the request, the university said it would require approximately 67.6 hours of staff work. Cimaron Neugebauer, news editor for Weber State University’s student newspaper, The Signpost, submitted a FOI request to the Utah university that required a $135 fee. Neugebauer said the paper could not afford that as a student newspaper with limited funds.
The high cost made Neugebauer reconsider going through with the request because he is not positive he will receive all of the documents he is looking for. Unwilling to receive only a few pages worth of information, some of which may be redacted, Neguebauer said it would be difficult for him to invest that much money into documents that would not be a guaranteed wealth of information.
“Students are being discouraged from doing investigative stories or even getting the opportunity of possible leads because of a dollar figure,” Neugebauer said. “I think that’s too high of a dollar amount to take a chance on [for] a struggling student newspaper in any economy.”
This is not the first open records request Neugebauer has made during his time at The Signpost. He recalled negotiating a $100 fee down to $60 for a past FOI request, but only received three printed documents at the $60 cost, which proved to be not worth the money.
Despite the $150 charge University of Iowa asked for, Kelsey Beltramea, editor of the university’s student newspaper, The Daily Iowan, said she plans to look for a potential story once she receives the records from her university. Beltramea said she had money in her budget for the newspaper to use toward the request.
The amount agencies can charge for open records retrieval varies by state, and for the most part the total amount can include: hourly rates for search and retrieval, compiling, formatting, redactions, and duplicating costs by page.
George Mason University in Fairfax, Va. requested that the SPLC make a deposit of $325 to the university before compiling the requested records.
In the request letter, it is helpful to specify the amount you are willing to pay and to ask for notification should the cost exceed the amount. It is important to know state law when it comes to open records fees, as many of them cap the fees at a certain rate.
To cut costs, it may be helpful to ask the public records custodian in person what it is you are requesting, to narrow down the selection of pages necessary to be copied. Looking should be free, and LoMonte suggests asking to inspect the document in person and flagging the specific pages to be copied.
“Only pay for what is absolutely necessary to obtain the records… Look at the figure like a sticker price on a car. It’s negotiable. Once you receive the initial quote, pick up the phone and start haggling,” LoMonte said.
Running up against the federal Family Educational Rights and Privacy Act (FERPA) is a common issue when requesting records. FERPA prohibits schools from releasing students’ confidential “education records,” and those that do are subject to having their federal funding cut.
When Daniela Werner, managing editor for the University of South Alabama’s student newspaper The Vanguard, requested “all records showing for the last five years, the number of documented suicide attempts on campus and the results of those attempts,” among other records, the university’s response was, “FERPA prevents the disclosure of these records.”
LoMonte said the burden is on the agency to point to something in the law that is a specific privacy issue.
“A blanket reference to FERPA or HIPAA is unacceptable. They’ve got to show how it is a violation,” LoMonte said. “If you have a good faith argument for the documents, you should push back.”
The SPLC encountered similar problems. Several schools cited FERPA, or responded that they do not keep records on the number of documented suicide attempts by students on campus, even though courts have said FERPA does not apply to anonymous statistical information.
Rutgers University cited the Health Insurance Portability and Accountability Act (HIPAA) in response to the SPLC’s request of “each recorded suicide attempt.” HIPAA is meant to protect the privacy of individually identifiable health information and limits disclosures of protected health information by insurers or providers to the minimum of what is needed for healthcare treatment.
New Jersey Institute of Technology’s response letter said the SPLC’s request was “overbroad, and would unduly burden the public entity,” as well as cited FERPA and HIPAA, but attached the university’s “emergency withdrawal policy” available on their website.
LoMonte said there are situations where it can be unclear as to whether there could be privacy or confidentiality violations in terms of FERPA or HIPAA.
“If you get to where there is truly a gray area, ask to get names and addresses blacked out. Confidentiality arguments can be made for medical and disciplinary records, but not for producing statistics,” LoMonte said.
Specificity in open records’ requests can be a no-win situation. Agencies can say that your request is overbroad if it lacks detail. However, you may be overly specific in the request, allowing for an overly literal interpretation that allows the agency to withhold records not meeting your description with pinpoint accuracy. To combat this problem, have some requests that are specifically targeted to what is needed, as well as broad requests.
“It’s better to start general and get a vague response from the agency, then you can pick up the phone and ask for suggestions,” LoMonte said.
LoMonte said it is important to do some reporting before filing a request and have an idea of what to look for.
“Know how the agency works, know who’s in charge of what and how they keep their files,” LoMonte said.
Government agencies are not required to create records that don’t exist, so it is important to “reasonably describe” what is needed from your request. The law requires that you request the record in way that “reasonably allows” the record’s custodian to locate it without jumping in blindly.
In at least a few cases, the SPLC request was denied for reasons that appeared legally well-founded. The University of Virginia, Virginia Tech and Virginia Commonwealth University responded saying no such policies or records exist. Virginia Tech explained the reason there are no such policies is because Virginia Code 23-9.2:8, states no student may be “penalized or expelled solely for attempting to commit suicide, or seeking mental health treatment for suicidal thoughts or behaviors.”
Often times, requesting “all documents” lead to responses that read: “This request does not seek a specific existing document, and is unclear.” George Mason University suggested looking through the university’s Housing and Residence Life handbook and the university’s website and encouraged the SPLC to “narrow the scope of [the] request, while SUNY Plattsburgh requested a specific “period to time [the SPLC] would like documentation for and what specific policies.”
Going through available resources online before requesting documents to find information may be beneficial with any FOI request. Tailoring the request to only summary data and without student’s names can be useful, but the request may still result in a FERPA objection.
Making a successful records request is a great achievement, but comes with more work: sifting through documents, adding context and making the best out of the information obtained. Gathering documents is only the initial phase of the reporting process. Conducting interviews upon findings will help you become more knowledgeable about the subject matter.
“Very often records can mislead you. You need personal interviews to do proper reporting on the information. Even statistics can be misleading, and you need to make sure if it’s really news or just a record-keeping blip,” LoMonte said.
Rutgers provided the SPLC with the most information pertaining to the request, as well as detailed responses for each item request made in the FOI letter.
Rutgers provided statistics from the Rutgers Housing & Residence Life department of the number of attempted suicides in residence halls per year from 2006 to 2009. In addition, statistics were provided from the Rutgers Counseling and Psychological Services department on the number of student suicides per year from 2006 to 2009, and the number of student suicide attempts per year, noting, “the number of students seen who have contemplated suicide is not reported.”
SUNY Plattsburgh also provided detailed responses for each item requested. In response to the SPLC’s request of “all records showing the makeup of any body, committee, council, or board that is responsible for determining — either initially, or upon appeal — the eligibility of a student to remain enrolled in school and/or housed in campus after an event triggering the Policies,” SUNY Plattsburgh attached the names of faculty members who comprise the Mental Health Task Force, and who prepared the university’s Suicide Prevention Program policy. SUNY Plattsburgh was the only university to respond to this specific request in the FOI letter.
You may have to wait several weeks for a first response, or make several phone calls and re-write letters only to have your request denied. Determination is key, even if you are not able to receive everything that you are looking for. The results are worth it in the end.
By Nicole Ocran, SPLC staff writer
reports, Spring 2010