By Tara Sheehan

As the chairman of the national Freedom of Information (FOI) Committee for the Society of Professional Journalists (SPJ), David Cuillier maintains the blog FOI FYI, which discusses current trends in government information policies and practices. As an assistant professor at the University of Arizona’s School of Journalism and an SPJ trainer, Cuillier teaches both current and future journalists the ins and outs of public records law—and the best ways to get access to the documents they need.

Communicator recently spoke with Cuillier about how Freedom of Information Act (FOIA) laws and practices have changed under Obama and the FOIA regulations every reporter should know.

Has government transparency improved under the Obama administration? Or has there been more talk than action?

So far, it’s been kind of hard to tell. I think there have been glimmers of hope that we’ve seen with the Holder memo. It tells people, ‘Hey, release documents, unless there’s a law that says we cant.’ It’s always good when the leaders at the top stress transparency and I think there’s a little trickle down that we might see from that.

We’ve had eight years of secrecy engrained in the federal government, and trickling down to state and local governments, so it’s going to take a while to change that culture. I don’t think we’re going to see a lot of things turn around right away.

But, one bright light is the Dover photos; allowing photos of the coffins, at the family’s wish, of soldiers who are killed. That’s a change and that’s a direct result of Obama being elected. I think the military leadership was open to that change but wasn’t allowed to do that under the Bush administration. So, there are those instances, but I still think we’ve got a lot of work ahead of us and that a lot of people are really expecting the president to do a lot more than he has so far.

What are the biggest challenges you currently see blocking greater access to information for reporters?

Well, there are tons of challenges. The first one is that a lot of government officials just ignore requests for information. Or come up with all sorts of creative loopholes for denials. A lot of that is because there are no penalties for violating the public records laws, or the penalties are very minor. So, there’s no incentive to give information out and follow the law.

Why do government agencies want to keep so much information secret?

Well, aside from the political pressures—they don’t want information out that might make them look bad or create controversy. There are also a lot of laws that will punish an agency for giving out information it isn’t supposed to give out. For example, in Arizona, it’s a misdemeanor if you violate the public records law unknowingly. So, it’s like littering if you don’t give information out. But if you’re a government official and you accidentally give out the home address or phone number of a police officer or a judge, it’s a felony. It’s equivalent to rape and the penalties that go with that. So, there’s a lot of incentive to keep things secret and err on the side of secrecy.

I know you do FOIA trainings with reporters across the country. What is the number one thing you teach journalists about FOIA that they don’t already know?

Well, surprisingly, I’d say most journalists don’t know much about FOIA at all. Most of them don’t submit public records requests. And most of them certainly don’t submit freedom of information act requests. Only about maybe about five to 10 percent of FOIA requests are submitted by journalists according to several studies.

I think a lot of journalists are so stretched thin, especially with cuts nowadays; they don’t have time to mess with it. They see it as an extra burden. Many of them don’t know how to request records and a lot of them don’t know how to follow up and pursue denials. A lot of them just give up.

So, I think journalists need to a) understand the law—and there are a lot of resources for them to get good explanations about it. And b) they have to get in a document state of mind, a habit of thinking about what records could verify or discount the information someone’s giving them.

There are awesome stories to be told based on documents if you just take the time to go get them. Most of the Pulitzers and award winning stories are heavily based on information based on documents and public records and data. So, journalists just need to get in the right frame of mind and do it. That’s the biggest thing.

What is the best way to fight a denied FOIA request if you’ve done everything appropriately?

There are a whole lot of ways to go about it. You first want to appeal. Under the Federal Freedom of Information Act, you have the right to appeal, and a third of the time when you appeal you get at least part of your records.

You also want to find out why they’re denying your records. By most laws they’re required to cite the exact statute that allows them to keep it secret. Then you can go and check and see if their reason is valid.
Sometimes it’s a valid reason, but check with an expert. Seventy-one percent of the time police agencies will illegally deny a valid public records request. So, they’re going to come up with bogus denials all the time.

Once you figure out whether it’s bogus or not, you can go up the ladder to the elected officials that report to the public and ask them, ‘Why is your agency keeping this secret? It makes it look like you’re hiding something.’ Say, ‘You’re not saying no to me, you’re saying no to the million people in our community.’

You can go to your state ombudsman. A lot of states, about half the states, have a public records ombudsman through the attorney general’s office, or separate, and they’ll often talk with the agency and work it out.

You can, of course, sue. And litigation can be timely and expensive, but it’s actually easiest at the federal level. All you have to do is fill out a form and file a fee with the U.S. district court in your area. That pries things loose all the time. If you get the records, they have to pay your fee, so it’s free, as long as you’re right. At the state level it becomes a little more cumbersome, but you can still do it.

The best thing you can do is write about it. A lot of journalists are reluctant to do that. They’re afraid that it looks like insider baseball. But that’s the wrong way to look at it. They’re saying no to the public, not you, the journalist. So, tell the public.

I mean, we write all sorts of stories about how mayors embezzle money. They violate the law, we write a story about it. We write a story about when a police officer beats somebody up when they shouldn’t have. They violate the law, we write stories about it. Well, why don’t we write stories about when they violate the public records laws? We should.