In America, the government belongs to the people. Freedom of information (or FOI) law is simply one means by which citizens, the owners, have given themselves the ability to keep tabs on what their government and governmental officials are doing. FOI law is based on the fundamental belief that a democratic people do not and should not give their government the right to decide what the people should or should not know. While most recognize the need for some secrecy in government (for example, battle plans), FOI – or “sunshine” laws, as they are often called – recognize that most of what the government does should be subject to public review. Student journalists often fail to take advantage of freedom of information laws. When the university refuses to reveal the president’s salary, trustees eject a reporter from a budget meeting to discuss controversial department closing decisions or the campus police chief locks up all records about a sexual assault that took place on campus, FOI laws can provide a remedy. The freedom of information laws most relevant to student journalists typically fall into four roughly defined categories: (1) the federal Freedom of Information Act, (2) state open record laws, (3) state open meetings laws and (4) miscellaneous state and federal FOI provisions. The federal laws are typically used to obtain access to the meetings of federal governmental bodies or records in the possession of a federal agency; state laws are used to obtain access to the meetings or records of state or local government agencies. The miscellaneous laws can apply to either state, local or federal government agencies – some even apply to non-governmental bodies such as private schools. What rights do freedom of information laws provide?
Generally, FOI laws say that all records generated or meetings conducted by a public body are open to the public unless the law specifically exempts them. Even when a specific exemption does exist, most laws still leave disclosure up to the individual government official. In other words, an official usually can disclose exempt records or grant access to exempt meetings, but is not required to. Although FOI laws generally do not cover private bodies (such as private schools), some laws ensure compliance by private entities by threatening to withhold government funding if certain information is not disclosed. When requesting access under federal law, the exemptions are uniform across the country. Under state law, however, the exemptions can vary. For example, while Connecticut’s open records law makes certain arrest records available to the public, Delaware’s law apparently exempts that same information. No matter what type of information or meeting to which you are trying to gain access, every newsroom should have a copy of your state’s open meetings and records law and the federal Freedom of Information Act available for consultation should questions arise. If your newsroom does not, contact a local Society of Professional Journalists chapter or state Sunshine Chair (listed later in this issue of Quill), your state press association, a local newspaper or attorney or the Student Press Law Center to assist you in obtaining copies. How do I make use of freedom of information laws?
Fortunately, public officials who recognize the importance of open government often grant access to government meetings and records on an informal basis. Therefore, before waving your copy of the law in front of a government official and demanding compliance, you will often find officials more receptive to your request by simply asking for their assistance. When the informal approach is unsuccessful, however, an FOI law may need to be invoked. Open Meeting Laws
Using FOI law is simple. For meetings of governmental bodies, just show up. If the meeting is small or if your presence is questioned, you should identify yourself as a reporter and politely explain your interest in attending the meeting. Remember that you are not looking for a confrontation; you are looking to gather news for your readers. If you are told that the meeting is closed, ask why. This is also a good time to professionally explain to the meeting’s chair why you think you should be entitled to attend, being sure to cite the relevant open meetings law. If the officials still tell you the meeting is closed and demand your departure, ask that your objection and their response be read into the minutes before you leave. Upon leaving, be sure to record the names and titles of everyone you talked to and carefully note what was said. If after leaving you still feel that you were wrongly denied access, you may wish to consider following the course of appeals prescribed by your specific open meetings law. If you need help at this stage, you may wish to contact an attorney experienced in FOI law or call the Student Press Law Center. Open Record Laws
To request records, most state laws say that all you have to do is go to the person responsible for keeping the documents you are looking for and ask for them. To formally request records from a federal agency or to request records from a state agency when you think they might not act on an oral request, a written request is required. Again, the process is fairly straightforward. A sample FOI records request letter, containing the basic information you should include in your request and citing the relevant provisions, is available on the Student Press Law Center’s Web site. A similar version for the federal Freedom of Information Act can be found on the site for the Reporters Committee for Freedom of the Press. In writing your letter, be sure to cite the relevant FOI law and note the specifics relating to how much time the law gives an agency to respond to your request and any penalties associated with non-compliance. Also, make sure that you “reasonably describe” the material that you want. If you want police incident reports relating to an assault committed in front of Memorial Library on Sept. 4, 2001, say so. A letter that merely requests access to “all crime information” will probably only delay your getting access to the information you want. You do not need to know an exact document number or title, but your request should be specific enough so that a public employee familiar with the subject area can locate the records. Courtesy and professionalism may speed compliance. As with meetings, if you feel your request for access to records has been wrongly denied, you should consult your open records law to determine the procedure for appealing the decision. Usually, you will be required to write a formal letter of appeal to a higher authority. Some states, however, do allow for immediate review by a judge. And again, if you have questions, seek professional guidance. Other sources of FOI law
While open meeting and open record laws are the primary tools of most journalists when trying to obtain information from and about their government, they are not the only source of law available. Scattered throughout various state and federal laws are pockets of FOI law that, once you know where to find them and how to use them, can provide a journalist with other valuable information about how the government or your school conducts its business. For example, as part of a large body of law regulating federal financial aid for students, Congress also included a section requiring that schools provide statistical information regarding campus crime as well as campus police logs. And buried deep within the voluminous federal tax code is a provision that requires private schools and other non-profit organizations to provide, upon request, some of the nitty-gritty information about where their money comes from and where it goes through their federal tax return. Descriptions of these FOI laws are provided below. Many student journalists either do not know about or have not taken the time to learn how to use freedom of information law. You don’t have to be one of them. FOI law can be an invaluable ally in fulfilling one’s duty as a journalist to inform readers about the performance of their government and in obtaining other interesting and useful information. In addition to this basic introduction, check out the Legal Resource Center on the Student Press Law Center’s Web site for additional information. Remember that FOI law can be a potent tool in a journalist’s arsenal – but first you have to use it.
FOI laws of interest to student journalists
Federal Freedom of Information Act (FOIA)
(5 U.S.C. Sec. 552)
This law provides a right of access to records of federal agencies unless those records fall within one of nine categories of exempt information that agencies are allowed (but usually not required) to withhold. Unfortunately, interpreting the federal FOIA has become increasingly complex, and questions or record requests that seem fairly straightforward often are not. The federal FOIA applies to Executive Branch agencies of the federal government. It does not apply to Congress, the federal courts, private corporations or federally funded state agencies. However, documents generated by these bodies and filed with a federal government agency become subject to the Act unless they fall within one of the exemptions. For a detailed discussion of this law, see the Reporters Committee for Freedom of the Press publication “How to Use the Federal FOI Act,” available on their Web site. State Open Record Laws
Although every state has some kind of open records law, these laws vary significantly from state to state. The general idea is that all records of state and local government agencies (including public colleges and universities) are open to the public unless they fall under a specific exemption in the law. Many state laws – unlike the federal Act – allow requesters to make a simple oral request to the person that holds the records. In these cases, the state official must provide reasonable and prompt access to the requester during normal business hours. If your oral request is denied, it is important that you note the name, title and response of any official you deal with. In those states where oral requests are not recognized – and any time such a request has been denied – a formal written request should be submitted. (See the Student Press Law Center’s Automated Open Records Request Letter Generator on the SPLC Web site). Penalty provisions vary by state, but almost all states provide the opportunity to request a court order in which improperly concealed records are required to be opened. Many states also allow a prevailing requester to collect money for attorney fees and court costs. Additionally, many states also allow for the imposition of monetary fines (and some even prescribe jail sentences) against a state agency or officer who improperly denies an open records request. For a detailed discussion of your state’s open records law, see the Reporters Committee for Freedom of the Press publication “Tapping Officials Secrets,” available on their Web site. State Open Meeting Laws
These laws also vary by state, but generally they guarantee the right of the public to attend meetings of public bodies during which official business will be discussed. Every state allows agencies to discuss some matters in closed session. The kinds of meetings that can be closed vary by state, but many laws permit discussions in secret for personnel matters, court cases, negotiations and collective bargaining sessions and discussions regarding the acquisition of real estate. Most states – but not all – require a meeting be open only when a sufficient number of the body’s members are present to constitute a quorum. However, officials cannot hide behind the pretext of a social or other “non-official” gathering if the agency is meeting to discuss public issues and make decisions. Non-governmental groups may fall under an open meetings law where they are supported in whole or in part by public funds, are created by a government body, use public facilities or perform traditionally governmental functions. In some states, action taken at an improperly closed meeting can be declared null and void, requiring the agency to take the action again in an open meeting. In other states, government officials may be liable for criminal or civil fines. Also, attorney fees are often available to those who successfully contest a closed meeting. For a detailed discussion of your state’s open meetings law, see the Reporters Committee for Freedom of the Press publication “Tapping Officials’ Secrets,” available on their Web site. Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (The Clery Act)
(20 USCS Sec. 1092(f))
This federal law gives current and prospective students a right of access to a wealth of information about campus crime and safety including annual crime statistics and campus police or security department logs. (For public schools, this information and much more may also be open under a state public records law.) Schools that fail to comply with the law can face financial penalties of up to $25,000 per violation or loss of federal funds. Some states have enacted similar campus crime reporting laws. See the SPLC publication “Covering Campus Crime,” funded by the Sigma Delta Chi Foundation available on the SPLC Web site for more details. Federal Internal Revenue Service Form 990
(26 U.S.C. Secs. 6104, 6652, 6685.)
Private school student journalists, in particular, should know that most not-for-profit organizations, including private colleges and universities, must make their annual tax returns open to the public. The IRS Form 990 and its supporting schedules disclose a wealth of information about the inner-workings of tax exempt bodies. Among the information included: (1) the amount of money the organization has taken in during a year, with a break-down indicating the general sources and amounts of that money; (2) a comprehensive listing of where the money was spent, how much was spent and for what; (3) a detailed balance sheet indicating both the assets and liabilities of the organization; (4) information on the sale or purchase of the organization’s investments (e.g. stock portfolios, bonds, trusts, endowment funds) and how they have fared each year; (5) the identities and salaries of the top organization employees, consultants and professional service providers being paid more than $50,000 a year and (6) any legal fees paid by the organization. Tax-exempt organizations are required by law to make the Form 990 available to any member of the public who requests it. Copies can also be obtained through the Internal Revenue Service. If you are refused access by an organization, keep a careful written record of who turned you down and when and where it occurred. The IRS can impose heavy penalties on those who ignore the law ($20 for every day they don’t provide the form plus a $5,000 penalty for willful non-compliance). Official complaints – along with supporting documentation – should be sent to the IRS Key District Office.
For more information, see the Student Press Law Center’s Web site Web site. Other useful resources are available on the Web site of the Reporters Committee for Freedom of the Press.
Tagged under: FOI
