I’m honored to receive the 2017 Peter S. Popovich Freedom of Information Award from the Minnesota Society of Professional Journalists. Below are my remarks at the banquet on June 15, 2017.
I want to talk about a phrase that makes me cringe, and that is: “documents obtained.”
About a month ago, a reporter for a local TV news station walked into the court records center on a mission to find a search warrant for a story he was working on for that evening. Search after search, and he couldn’t find it. Documents were filed inconsistently, it would sometimes take minutes for the results screen to load, and just when he got the hang of things, there would be an obscure error message and he’d have to start all over again. This reporter begged court staff for help, frantically called his station, and I think he might have been on the verge of tears—but he finally found the document and sprinted out the door.
When his piece aired on the evening news with those search warrant documents dramatically sprawled across the screen, this entire frustrating process of getting these court records was reduced to the phrase: “documents obtained by the news station reveal…”
I see the same thing with public records requests. A reporter uses our freedom of information law—the Data Practices Act—to ask for memos, invoices, or emails, but when stories get written, the sometimes months of delays and excuses, bickering with records clerks, phone calls to state agencies or attorneys for advice: that, too, gets boiled down to “documents obtained by the newspaper show…”
If you were to say ‘Data Practices Act’ to a random sampling of Minnesotans, their eyes would glaze over with indifference. They’re just not exposed to, or aware of, what the law is and does. But you can change that.
As you all know, when you bring attention to something with your reporting, people get held to account, decisions get re-examined, and laws get enacted. Things change for the better. So, you should bring attention to the lengths you and your colleagues have to go to in order to get access to access to records.
The public wants to know what their government is doing for them with their money. And if stonewalling journalists is one of those things, that’s a story. Not everyone will agree, but if you don’t report it, there’s no debate.
So you should report to the public each and every time you’re denied records. You should report exactly how long you waited to get your hands on the data.
You should report when government lobbyists try to limit the effectiveness of our sunshine laws, and you should report when the Legislature does nothing to fix longstanding deficiencies in the law.
You should report that the courts use frustrating case management technology and have extremely limited public access rules that results in you spending your entire day two floors underground staring at a courthouse computer screen because for some reason, in 2017, that’s just how things work.
If a police department tells you the only way to get an Excel file is for them to print it out to physical paper and scan it back in, charging you money for the privilege, call the police chief and ask them why. If you don’t get anywhere, here’s your headline: police want hundreds of thousands of dollars for high-tech gear, but they don’t know how to email a spreadsheet.
And when someone—even a competitor—sues for access to data and government turns it into an attempt to have the courts restrict public access for everyone, it is not nerdy media ‘inside baseball’, it’s a threat to democracy deserving of attention.
And we know attention works. Just this week, the U.S. Senate Rules Committee banned reporters from doing interviews in Capitol corridors. After journalists tweeted and wrote stories about it, a wave of angry constituents embarrassed the Committee into changing their minds within hours.
And there’s a local example, too. In the wake of the police shooting death of Jamar Clark and the 18-day protest occupation that followed, the Minneapolis Police Department asked the City Council for $600,000 in extra funding. Activists stormed the Council chambers eager to speak their mind, and the proposal was scrapped. This was newsworthy by any measure, and MinnPost’s Peter Callaghan had some questions. Chief among them: what was the $600,000 going to pay for?
MinnPost submitted a data request that ultimately took an unbelievable 16 months for the City to fulfill. But unlike most journalists, Peter was not quiet about it. He tweeted about the delays, and wrote an entire article about the delay itself, which named names, and quoted excuses from records staff. He even asked the mayor at a press conference about the status of his data request—something I’ve never seen happen before. And when he finally got the data, he devoted a huge part of his story to discussing the City’s delays.
I’ve been told by City staff that this article caused intense embarrassment and has led to internal discussion about how to do better. This would not have happened if MinnPost’s story had reduced the experience to “documents obtained.”
Some in government want to burn down the Data Practices Act. If for no other reason, because it’s not fun for them to do extra work. But nothing is a better firewall against threats to our sunshine law than news story after news story referencing how the law was used to break news—or in some cases, stifle news.
When your public interest stories of extreme policy importance were only possible because of a strong Data Practices Act—but you don’t say so—don’t be surprised when nobody goes to bat in the courts or at the Capitol to protect a law they don’t know is important or effective.
It’s been said a lot recently that press freedoms are under attack. But not all those attacks are going to be sudden and obvious. Sometimes, it will be a slow, years-long erosion of the effectiveness of our sunshine laws because nobody shakes things up, asks tough questions, complains to the Legislature, or sues to force compliance with the law.
So consider that sometimes you have to go to bat for yourself. Your organization probably doesn’t have the resources to sue everyone into compliance, but as prominent users of the law, you should feel it your duty to tell your audience what you’re going through to bring them news, and to talk to legislators and to show up to committee hearings to share your experiences.
If you don’t, who will?
In the spirit of talking about challenges accessing government data, I wanted to talk a bit about a lawsuit I’m involved in.
I’ve been doing this work for about a decade, but a couple years ago I decided to stop taking no for an answer, and I started challenging when my records requests were improperly denied.
In 2015, I asked the Hennepin County Sheriff for data about its use of biometric technologies, and eventually learned they had been using facial recognition technology and kept it secret for over three years. But unlike most law enforcement and surveillance technology that we know about, there are no laws on the books for how police can use this really powerful technology; it’s completely unregulated. So, these emails I asked for are pretty important to seeing how it’s used—but I didn’t get to see them.
Hennepin County said my request was too burdensome, estimating that it would take over 10,000 hours of work to perform an email search. I completely disagreed, but I wanted to see something, so I reduced the scope of my request by about 90%. After asking repeatedly if they would do the search or if there was some way we could work together to finish the request, I never heard back. So, I sued.
County staff took the stand and admitted to delays, errors, not having required policies and procedures, and they pointed fingers at one other. Now under oath, the County’s previous 10,000-hour estimate suddenly changed to just 18 hours.
I won, and the judge ordered them to hand over the emails. But the County appealed, again arguing that my data request was too burdensome, because I was asking the County to perform “research services” for me because they’d have to look through emails to find only ones relevant to my request.
Well yeah, that’s the point of a data request—but you know, searching emails is really quite easy. We do have the technology. But to that, the County said that they don’t file a copy of each email into a million folders corresponding to every word in the English language, so searching for emails: impossible.
But these emails are legally public. If data exists that is public, government must find it and produce it upon request. That’s the law. If I’m asking to see the data in the wrong way, what is the right way? The County Attorney won’t say.
As the case goes on, I’m still waiting to see data I asked for two years ago because pending appeal, the County obtained a stay on having to comply with my request. This means: if government doesn’t like your data request, they can buy years of delay through appeals, until your reporting is no longer relevant.
But again, this data is public. It’s one thing if government has a genuine dispute over privacy or something, but everyone agrees this is public. So I should be able to ask to see it in a different way, or someone else should be able to ask to see it. But Sheriff Stanek’s office has actually been denying all requests for these public emails, saying it’s part of my litigation. There’s no exception in the law that says public data is made private because you don’t like how one person asked to see it. That’s just not a thing.
As my case has been pending, I found out that the Sheriff—as a result of my lawsuit—had decided to start automatically deleting emails after just 30 days. This wasn’t announced to the public or the media; I found out through a source. This sparked intense debate at the Legislature this session about new minimum retention requirements on government correspondence, which would have been a great thing. But ultimately the Legislature did nothing.
Earlier this year, I also won at the Court of Appeals, and about two weeks ago the Minnesota Supreme Court accepted review. Whatever happens, it will be of huge impact to public records access in Minnesota, especially electronic data.
Oral argument will likely be this autumn. So, I encourage you to stay updated with the case, because it will impact you.
I’m out of time, but I wanted to briefly mention in closing that I’m starting a non-profit called Goverage to help journalists and the public learn how to send data requests, figure out what to say when denied access, to see examples of requests that have been successful in the past, and learn about how to enforce their rights, including developing a network of attorneys interested in taking on these cases pro-bono or low-bono. If you follow me on Twitter – I’m @webster – there will be more information in the next week or so on that.
Photo: Oliver Thomas Klein on Unsplash