Need public records? Spare the hearts and flowers - it's the fist that gets results



Arizona journalism professor David Cuillier is kind of the Johnny Appleseed of open government. He recently completed a 33-state national tour, sponsored by the Society of Professional Journalists' Sigma Delta Chi Foundation, to spread the gospel of public records to anyone who'd listen. (His blog about the 14,135-mile trek -- which included a visit to the SPLC on Day 28 -- appears here.)

As part of his work promoting greater use of open-records laws, Cuillier worked with journalism students at the University of Arizona to test public agencies' compliance with their disclosure obligations under the Arizona Public Records Law. His findings are published in the June 2010 edition of Communications Law & Policy, an academic journal.

The students ran two tests under Cuillier's supervision: (1) asking 106 randomly selected police agencies for copies of seven years' worth of use-of-force incident reports, and (2) asking 219 public school districts for the contracts disclosing the salaries of their superintendents and head football coaches. These are boilerplate public records, the kind that any requester is readily entitled to obtain under state disclosure laws.

Remarkably, the tests yielded identically dismal response rates -- 58 percent -- from both the police and the school agencies. That means 42 percent of those receiving the letter simply ignored (or misplaced) the request. Even when an agency believes that it has no responsive documents, or that the documents requested are exempt from disclosure, it is the agency's burden to say so; discarding a request unanswered is improper.

The experiment compared the promptness and thoroughness of responses using alternative types of request letters -- "the honey letter," a deferential (and almost apologetic) approach, and "the vinegar letter," filled with citations to the law and concluding with a subtle threat to litigate. The nastier letter (and gosh, we think of ourselves as such polite people) was created using the Student Press Law Center's Open Records Request Letter Generator. (In the school district experiment, a third option -- a letter neutral in tone, neither threatening nor apologetic -- was added to the mix.)

Which approach yielded the most responsive results? Guess.

"Both studies indicated that a threatening letter is the most effective at eliciting responses from agencies, including faster response times, lower copy fees, and receipt of the records," Cuillier's article concludes.

Of the police agencies surveyed, only 4 percent produced any responsive documents in response to the deferential letter, while 14 percent did so when faced with the stern letter. For school districts, the compliance rate was 51 percent for the friendly letter, 50 percent for the neutral-voice letter, and 74 percent for the harsher (SPLC template) letter.

Cuillier has several theories as to why a letter quoting the public-records statute and referencing the possibility of a lawsuit works best, including the likelihood that agencies receiving such letters immediately refer them to their legal department. A lawyer is more likely than the intake clerk at the school board or police department to understand the agency's disclosure obligations and the penalties for noncompliance.

As the SPLC always advises, a polite and informal consultation -- on the phone or in person -- is probably best as a first step if the request is time-sensitive and the agency is one with which your publication regularly deals. There are times when a written request may activate the agency's defense mechanisms in a way that a cordial visit will not, actually resulting in a slower response.

(As a postscript, Cuillier is co-author with Charles Davis of a remarkably reader-friendly book that actually makes public records interesting, The Art of Access. To listen to a March 2010 podcast with Davis and Cuillier describing their research, go here.)

Tagged: newsgathering, public records