It’s Sunshine Week, the annual celebration of access to public information, coordinated by the Joseph L. Brechner Freedom of Information Project. To commemorate the power of public information, we’ve asked experts to share their tips for requesting open records and responding when facing roadblocks to access.
Kicking off our spotlight on open access is an interview with Miranda Spivack, a veteran reporter and editor who specializes in stories about government accountability and secrecy, and urban development. Her new book, “Backroom Deals in Our Backyards: How Government Secrecy Harms Our Communities and the Local Heroes Fighting Back,” will be available this May.
Your book chronicles five “accidental activists” who fight back against government secrecy. Their stories demonstrate the importance of transparency in state and local governments. Can you briefly explain why open access is so important to everyone, not just journalists?
Spivack: The people in the book, who are from different regions of the country, discovered problems in their communities — poisoned drinking water, tainted firefighter safety gear, dangerous roads, failing sewers, flawed data used in criminal justice settings — and went to their local and state governments thinking they would find answers.
Instead, they hit information blockades, some erected to protect private businesses, and learned that they had to find ways to extract information their tax dollars had already paid for. Many used their local and state public records laws to pry loose important information about health and safety in their communities.
The recent firings of FOIA officers have experts worried about open access across the country. How do you see this impacting access at the local level?
Spivack: The illegal dismissals of many federal employees — including those who handle the federal Freedom of Information Act, which allows the public to obtain public records, data and documents — will have a broad and lasting impact on Americans and others seeking to extract information from the federal government.
But many federal agencies are communicating directly with the states and local governments to issue orders, and so anyone looking for federal information should ask their state and local governments for those communications and the data, documents, and other public records that accompany those orders.
This type of triangulation is always useful in public records requests: Figure out who else has the information you are seeking and ask for them to provide it.
What are some examples of public records that journalists might not think to request when covering local government?
Spivack: Always ask for public officials’ calendars and who they spoke to on the phone, by video call, and in person. Ask for notes from those contacts. Ask for reports that lead to the issuance of an occupancy permit. Ask for contracts with outside vendors on a regular basis and crosscheck those contracts with campaign finance reports at the local, state, and federal levels.
Also: restaurant inspection reports, school health and safety reports, nursing home and care home safety inspection reports, fire marshall reports. Any type of environmental report that the states and localities compile themselves and also must supply to the federal government. Same with education data.
Figure out what reports the states and localities have to make to the feds and ask for those. Do this regularly, so that the state and local governments begin to become accustomed to these requests and have them ready for you. (Hope springs eternal!)
How do you narrow a request without losing the scope of what you’re trying to get?
Spivack: Despite the many difficulties people in my book had at the state and local levels getting information, there are many people in government who actually want to help you and have a good sense of what their agency possesses that addresses your needs. Find those people, visit with them in person if possible, call them if not possible to go in person.
Last resort, email them. But don’t assume they will answer emails unless they have met you some other way first and have an understanding from a conversation what you might want that they have.
What are the biggest access issues you have faced in your recent reporting?
Spivack: One of the biggest dodges to avoid disclosure of information used by state and local governments is the “trade secrets exemption” to disclosure, which almost every state law includes. The problem here is that government employees who handle records requests from the public are usually not equipped to figure out what is a trade secret. “Trade secret” usually refers to some type of information that could harm a private company’s position in the market or tip off competitors about such things as salary, benefits, and vacation benefits, or the formulas they use to make a product.
So the governments often seek guidance from the private companies. And the companies often claim that whatever the public is seeking is actually a trade secret. And the government employee is not in a position to challenge that.
States and localities also have agreements with private companies warning them that a public records request has been made for information about them.This is a courtesy that others who may be subject to public records requests aren’t ordinarily provided. Amazon got that agreement from Arlington when it located its second headquarters there.
Here’s a small item from the book that discusses the uses and abuses of trade secrets:
“William Alsup, a federal judge in California, wrote in a 2019 case that companies frequently cite a need to keep information secret, even information that ‘contain[s] standard fare blather and even publicly available information.’ He could easily have been referring to West Virginia American Water’s decision to withhold the names of public officials and the state public utilities commission’s toll-free number, public information that presumably exists so that people can actually contact the utilities commission and obtain information from this arm of government.”
Tags: Sunshine Week