Open Records

  • Insightful FOIA tips from ‘FOIA terrorist’ Jason Leopold at NICAR 2016

    Jason Leopold

    It’s impossible to say enough good things about NICAR 2016, a journalism conference in Denver where more than a thousand attendees honed their data-wrangling skills. NICAR is all about finding good stories in data.

    But what stood out for me was a talk by investigative reporter Jason Leopold of Vice News about using the Freedom of Information Act to get your hands on that data in the first place.

    “The Freedom of Information Act has become a very important tool for me,” said Leopold, who writes about the secretive world of national security where few people are willing to speak on the record.

    To bypass those road blocks, Leopold began relying on FOIA to dig up public records and unearth good stories. Over the years he’s learned about the intricacies and pitfalls of FOIA. He’s been so prolific, a federal bureaucrat referred to him in an email as a FOIA terrorist. Leopold liked it and the nickname stuck.

    “I file FOIA requests probably several times a week,” Leopold told several hundred journalists who packed a conference room at the Denver Marriott City Center on March 10.

    Here’s what Leopold learned about FOIA, a law written nearly a half century ago that has its flaws — but can still be a powerful tool:

    Speed up the FOIA process

    One downside of FOIA is the backlog of open records requests at many federal agencies. It can take months, even years, to get anything.

    It’s crucial for reporters to build a template — a template that describes exactly where you want these agencies to search.”

    To speed up the process, Leopold said it’s important to explicitly explain in your FOIA request not only what you’re looking for, but where it’s located at the agency.

    “It’s crucial for reporters to build a template — a template that describes exactly where you want these agencies to search,” Leopold said.

    Every federal agency has “systems of records” that are usually public and list where they are keeping certain databases and documents in their vast bureaucracy.

    Let’s say you’re looking for emails about the German auto manufacturer Volkswagen and how it rigged emissions tests. You send a FOIA request. “The EPA is a large organization, obviously,” Leopold said. “So just sending it to the EPA would not necessarily get you the info you’re seeking in a timely manner.” Leopold said you could speed up the process, potentially trimming off months of delays, if you tell the EPA where to search.

    This tip is also a bit empowering. Once the agency notices you know what you’re doing, it’s harder for it to blow you off.

    For the FOIA analysts handling your requests, “if you’re not telling them what to do, they have to figure it out,” Leopold said.

    Leopold also singled out the FBI.

    “The FBI is the worst agency in the government when it comes to responding to FOIA,” Leopold said. The FBI has a 100 million records, and how it searches those records matters.

    “Whenever you file a request with the FBI, you should always ask them to conduct a cross-reference search,” Leopold said. “That’s a separate filing system. And an ELSUR search — electronic surveillance database search. And oftentimes, the FBI will have documents in cross-reference files.”

    For example, after Maya Angelou died, Leopold filed a FOIA request to see what files the FBI had about her. “They responded by saying, ‘We didn’t find any records.'” Leopold said. “So I appealed and said, ‘You guys did not conduct a cross-reference search.’

    “And they went back, the did a cross-reference search, and the gave me these cross-reference files, which were actually really fascinating because these cross-reference files had to do with an investigation into communist activities in the ’60s. And there was Maya Angelou in this file.

    “So it really sort of helps to get those documents and get that type of material,” Leopold said. “It will really also help, if you’re reporting on a story, to gain a wider knowledge of how the FBI conducts its activities.”

    Appeal everything

    I cannot stress enough how important it is to appeal every response that you get.”

    FOIA has an appeals process, and Leopold uses it all the time.

    “I cannot stress enough how important it is to appeal every response that you get,” Leopold said. “Even if the agency turns over everything you want. There may actually be more. I appeal everything.”

    An example: For a story about the Obama administration scuttling FOIA, Leopold heard rumors about the Federal Trade Commission being involved. He filed a FOIA request and they sent about 30 pages.

    “I appealed it. They said, ‘Oh, we found 900 more pages.'”

    When you appeal, you don’t need to make a compelling legal argument. Simply write, “I appeal the integrity of the search.” It’s also very important to appeal any and all redactions. “You will really be surprised by some of these responses,” Leopold said.

    The meta FOIA

    File a FOIA request for the processing notes to see how the government agency is handling your initial FOIA request. It’s a way to gain a great understanding about how the FOIA process works.

    Leopold said there’s a paper trail from the moment your request lands on an analyst’s desk that shows how your request is being handled. Processing notes sometimes have names of databases that are undisclosed, which could be valuable to your reporting.

    “You get a good understanding of what’s going on behind the scenes,” Leopold said.

    Leopold advised to wait about three or four weeks after receiving your FOIA case number to file this “meta” FOIA request. “I think those processing notes are hugely valuable,” said Leopold, especially for reporters who cover national security where it’s so difficult to obtain information.

    A great resource

    One thing that frustrates Leopold is that many reporters don’t know about a great resource: OGIS, the Office of Government Information Services.

    This office is the “federal FOIA ombudsman” that provides mediation services for citizens dealing with federal bureaucracies. They can help you if an agency is stonewalling.

    “They’re waiting for that phone call,” Leopold said of OGIS. But all too often, journalists aren’t picking up the phone.

    “It’s not used as often as it should be,” Leopold said. “It does not cost anything. I’ve used their services before suing. They’ve actually been able to get documents for me.”

    Expedited processing

    Under FOIA, the burden is on the requester to prove there is a need for the information to be released immediately.

    The easiest office to be granted expedited processing is the Justice Department, even though they suck at FOIA.”

    “Each agency is different with regard to expedited processing,” Leopold said. “The easiest office to be granted expedited processing is the Justice Department, even though they suck at FOIA,” Leopold said.

    It doesn’t always work out the way you want. For one request, Leopold was granted expedited processing but still had to wait two years to receive what he asked for.

    “So much for expedited processing,” Leopold joked. But he said it’s always a good idea to ask for expedited processing and figure out how to make that case. What is that pressing need? How would the public be harmed if that information was not out immediately?

    Do your homework

    FOIA logs: Read them regularly. Most agencies post their FOIA logs of past requests and responses on their website. You can actually see what other people are asking for, get ideas, and save yourself some time.

    You can also check a website called FOIA online, which allows you to conduct keyword searches of multiple agencies and read any documents that were released.

    It’s OK to sue

    Leopold said there’s a myth that it costs hundreds of thousands of dollars to sue the government to resolve a FOIA dispute.

    “If you are looking for a highly classified document, yes, be prepared for a fight that’s going to take many years,” he said. But otherwise, it’s not so bad. You or your news organization file a suit, and then life gets better. The litigation helps speed up the FOIA process if the agency is dragging its feet.

    It’s a sad reality about FOIA. It remains broken. We’re left having to litigate for documents that belong to the public.”

    “Basically what happens after filing a lawsuit, you kind of go to the top of the pile,” Leopold said. “You end up working with a government attorney, and you come up with a production schedule.”

    Leopold said FOIA litigation doesn’t cost as much as some people might think.

    “The costs are really minimal,” he said. “I mean, four digits. It’s a sad reality about FOIA. It remains broken. We’re left having to litigate for documents that belong to the public.”

    Fee waivers

    To save money in open records costs, you need to ask for a fee waiver and make an argument as to why you’re entitled to it. You can write: “I’m a reporter. I publish regularly. I am going to use these documents to write a news story about this issue. I should be entitled to a fee waiver because it is in the public interest.”

    When writing your request, be sure to use the phrase “any and all records relating or referring to …” That’s very important language, Leopold said. Don’t say you want documents “about” something. Agencies can deny your request, claiming they don’t know what you mean.

    By law, every agency also has to provide you with an estimated date of completion. You can request that, and if they fail to provide it, that can help your cause if you need to later appeal or file a lawsuit.

    Keeping track of it all

    You know, I’m not patting myself on the back here. I’m really successful.”

    “I have more than a thousand outstanding (FOIA) requests,” Leopold said. He makes sense of the chaos by using a “very simple” spreadsheet that includes the date of the request and when responses are due.

    What’s Leopold’s success rate?

    “You know, I’m not patting myself on the back here,” Leopold said. “I’m really successful. I turn all of this into news.”

    What’s amazing about getting records through FOIA, Leopold said, is that sources are suddenly willing to talk once documents are unclassified and released publicly. It’s tedious work — but it pays off.

    “It has become a very important tool for me,” Leopold said. “But yeah, I have a very good success rate.”

  • Why is open government such a big deal?

    Open Records RequestsSome readers — and government officials — wonder why journalists are so nosy and make such a big deal about getting access to government records. Sure, transparency matters. But why make such a big fuss if an agency wants to withhold e-mails or something. Who cares?

    Here are five shining examples of why this pesky-open government thing matters.

    Last week, the Freedom of Information Foundation of Texas held its annual conference in Austin and announced the winners of the Gavel Awards, which go to journalists who produced stories that shed light on the legal system. A common thread runs through all these stories: They relied extensively on public documents, and uncovered important, previously unknown problems and issues in the community.

    So if you think public information isn’t really that big a deal, check out the winning stories:

  • Steve Thompson and Tanya Eiserer of The Dallas Morning News discovered the Dallas Police Department was under-counting serious crimes, creating the perception that the city was safer than it actually was. The reporters uncovered the story by examining piles of police reports.
  • Jeremy Roebuck and Jared Janes of the McAllen Monitor relied on public documents to tell the tale of how Hidalgo County was struggling to pay for millions of dollars in indigent defense costs. The reporters discovered the county’s system cost more per capita than any other urban county in Texas.
  • Leslie Wilber of the Victoria Advocate revealed how an innocent man was jailed for 62 days based on a questionable “scent identification lineup” overseen by a dog handler and his bloodhounds. The obscure law-enforcement technique answers to no laws or regulations and critics call it junk science. But the lineup is still admissible as evidence in court.
  • Cindy V. Culp of the Waco Tribune-Herald used court data to analyze the track record of a district attorney running for office. The news stories gave voters a clearer picture of a controversy surrounding how many criminal cases were dismissed.
  • David Schechter and Mark Smith of WFAA-TV uncovered how illegal immigrants who are accused of felonies in the United States — including murder — are routinely deported back to Mexico and set free.
  • Somebody explain to me again why public information doesn’t matter.

  • How to keep a secret if you’re a crooked politician in Texas

    County Commissioner Tommy AdkissonHand it to Bexar County Commissioner Tommy Adkisson — his feud with the Texas Attorney General and the San Antonio Express-News is, at the very least, exposing a flaw in the state’s open-records law.

    Adkisson doesn’t want to release private e-mails in which he discussed public business. The attorney general’s office told him he has to release the e-mails. However, there’s an important caveat: Adkisson is the one who’s responsible for identifying the e-mails that pertain to the public’s business.

    Adkisson. The guy who doesn’t want to give up any e-mails. He’s the one who’s supposed to go through his Hotmail account or whatever and turn over copies of e-mails that can be deleted with a mouse click.

    In related news, a public interest group, the Corrupt Regime of Associated Politicians (C.R.A.P.) announced today that they’ll be conducting all business on Yahoo! e-mail accounts.

    Nothing to see here. Move along.

  • Open records quiz: Can officials question your motives and withhold documents from you?

    County Commissioner Tommy AdkissonCheck out this open-records story by Josh Baugh: A Bexar County official wants to sue the attorney general in an effort to withhold e-mails from the San Antonio Express-News — because the official believes the newspaper is biased:

    Bexar County Commissioner Tommy Adkisson refuses to comply with a Texas attorney general’s ruling that ordered him to release e-mails in his private accounts that contain public information. This week he instructed the Bexar County district attorney’s office to sue the AG.

    The San Antonio Express-News submitted an open-records request under the Texas Public Information Act on Feb. 17, seeking all e-mails between Adkisson and grass-roots toll opponent Terri Hall regarding business of Bexar County and the Metropolitan Planning Organization, of which Adkisson is chairman.

    The request sought e-mail correspondence from Adkisson’s county-provided e-mail address as well as from two private accounts he maintains. The newspaper is seeking the e-mails because they would offer insight into Adkisson’s management style at the MPO.

    The story raises two issues that ought to trouble open-records advocates:

    One is that public officials are keenly aware that their government e-mails are public documents, and they are turning to private e-mail accounts to conduct government business.

    The other is Adkisson’s explanation for seeking to withhold his e-mails from the newspaper: He believes the Express-News is biased and has a pro-toll road agenda.

    Even if Adkisson’s claim were true, the point is irrelevant when it comes to public information. In Texas, a government record is either public, or it isn’t. In order for an agency to withhold a record, it must cite a legal exemption. For example, a section of the Texas Public Information Act says investigative files of law enforcement agencies don’t have to be made public.

    The motives of the person requesting the information has no bearing on whether a document is public. In fact, under the law, officials aren’t even supposed to ask why someone wants the information. Otherwise, government officials could withhold everything from the public simply by saying they don’t trust the people asking for the information. Or they could play favorites and give information to preferred journalists and bloggers.

    So now the county is going to spend taxpayer money on a legal effort to withhold information from taxpayers. Maybe Josh can find out how much money the county will spend on the case — assuming no one questions his motives for asking.

  • Government official shocked — shocked! — when public data is posted online

    Texas state officials surprised when public data is posted online by John Tedesco

    Karisa King and I were cleaning our corner of the newsroom last week, and I rediscovered this gem of an e-mail written by an official for the Texas Department of Insurance.

    The state agency oversees the amusement-ride industry. When a patron is seriously injured, the ride owner is supposed to report the injury to the department of insurance, and the information is typed into a database.

    For a story I wrote about the safety of amusement rides, we obtained a copy of the injury database, and the Express-News posted the data online.

    Texas state officials surprised when public data is posted onlineThat disturbed at least one state official.

    “Tedeso has put together a searchable database of injuries from our data,” department spokesman Jerry Hagins informed his colleagues in the July 2009 e-mail.

    “Can he do this?????????” replied Richard Baker, a manager at the agency.

    A question with nine question marks deserves an answer: Yes, we can do this. In fact, news organizations and blogs ought to do this.

    Government agencies collect reams of data about important issues. When journalists find that data, analyze it, and share it with the public, we help readers make sense of a complicated world. That’s our mission. And that’s why news sites are publishing “data centers” with unique and useful information.

    Want to learn the salary of the city manager of San Antonio? Check a public-salary database.

    Curious what litterbugs have been dumping on roadways? Check the state’s “Dont Mess with Texas” database.

    Wondering where it’s safe to drive in San Antonio during a downpour? Check a map of low-water crossings, which was created from a city database.

    Can we post this data?


    Should we?


  • Reporter’s notebook: Tips for putting together the pieces of a puzzling, complex story

    Jigsaw puzzleOn March 26, City Hall reporter Josh Baugh got an adrenaline-pumping tip: FBI agents had seized files at the office of Fernando De León, a city official who reviewed permits for real estate development in San Antonio.

    The tip sparked a frantic series of phone calls that afternoon as Josh and I tried to figure out what was going on. Authorities said they couldn’t discuss many details — there was still an active investigation, and De León hadn’t been charged with a crime. It was an understandable response, but we had to tell readers what was happening at a city department funded by their tax dollars and permit fees.

    Trying to find answers in a story like this is like working on a jigsaw puzzle, only you have to go out and interview people and dig up records to find the missing pieces. And even then, you’re only going to see part of the picture. But after a lot of work, here’s the gist of what we know today:

  • Authorities are scrutinizing at least two players: De León and a permit-expediting company called Rapid Permit Services. Federal officials subpoenaed records last year at Pape-Dawson Engineers Inc., one of the largest engineering firms in town, to gather information about Rapid Permit Services and possibly others. Pape-Dawson is not the target of the inquiry;
  • Rapid Permit Services got a plum job at the Rim, an 800-acre shopping center;
  • De León reviewed and approved some of the paperwork for the Rim that had been filed by Rapid Permit Services;
  • De León’s sister and possibly one other family member are tied to Rapid Permit Services.
  • There’s certainly far more to this story, but it’s a start. If you’re digging into a murky topic like this for a blog or news organization, here are a few tips that can help you find the missing pieces of the puzzle:

  • Follow the bread crumbs: Knowledgeable people and pertinent documents can lead you to more people and more documents. For example, once we learned about Rapid Permit Services, we turned to the Texas Secretary of State’s office. That’s where companies file incorporation papers. For a small fee, you can search those records online, and look up pdf files of the original documents:

    Incorporation papers for Rapid Permit Services by John Tedesco

    These records lead to other people and records — in this case, the name of Rebeca Lopez, who turned out to be De León’s sister. Keep following the bread crumbs and see where the lead.

  • Request the licensing file: When you’re backgrounding someone and learn the person works in a profession that requires a professional license — such as an engineering license — contact the state agency that regulates that profession, and request a copy of the person’s licensing file. The records in the file are usually public and contain things like the license application, educational history and any reprimands. De León is an engineer, and the Texas Board of Professional Engineers quickly provided us with a pdf of De León’s complete file. His license application listed an address in Laredo that proved to be pertinent.
  • Connect the dots: In many investigative stories, you’re trying to find connections between people and organizations. In our case, the goal was to find connections between De León and Rapid Permit Services. As we examined documents and interviewed people, we kept track of every name, date, phone number, address, and other tidbits. Then we saw where the information intersected.

    When De León applied for his engineering license, he listed an address in Laredo. That turned out to be a key piece of information — in another document tied to Rapid Permit Services, that same address was mentioned. A woman named Marcela Alicia Marquez had filed an assumed name certificate with the county to register Rapid Permit Services as a proprietorship, and she listed the address in Laredo:

    Assumed Name Certificate for Rapid Permit Services by John Tedesco

    She could be related to De León — and we might have missed that connection if we hadn’t typed in every address we came across.

  • Build a chronology: Plug all the dates you find into a chronology, and interesting angles might emerge. Rapid Permit Services was incorporated around the same time the Rim was being developed. Was the firm specifically created to get a piece of the pie at the Rim?

    Who knows? It could be another piece of the puzzle.

  • (Photo credit: liza31337)

  • The free version of Netflix: FedFlix

    When I worked on this short article about CPS Energy and its incorrect claim that no one had ever been killed in an accident at a nuclear plant in the United States, I came across this YouTube video about a fatal accident at the SL-1 military facility in Idaho.

    The free version of Netflix  FedFlix   John TedescoThat video was obtained by Public.Resource.Org as part of FedFlix, a clever term to describe a vast collection of videos created by federal agencies that Public.Resource.Org is obtaining and posting online, through partnerships with federal agencies and open-government advocates. Copyright claims don’t apply to material produced by the U.S. government, so Public.Resource.Org, led by Carl Malamud, can use the videos however it wants. And it wants to share the treasure trove of material with the public:

    FedFlix is a joint venture with the National Technical Information Service (NTIS) in cooperation with other government agencies including the National Archives. They send us government videotapes, we upload them to the Internet Archive, YouTube, and our own public domain stock footage video library— then we send the government back their videotapes and a disk drive with their digitized video.

    Here are a few examples of the cool educational and documentary videos available:

    True Glory (1945)

    An award-winning documentary about World War II, “told by the guys who won it.”

    Top 10 Coast Guard rescues

    Laser Safety

    This psychedelic video by NASA should have won an award for its groovy soundtrack.

  • A new Web site for Freedom of Information

    In the process of blogging about WOAI’s open-records battle with the Texas Department of Transportation, I had a chance to revisit the Web site set up by the Freedom of Information Foundation of Texas. The foundation has completely revamped its old, sleepy site — check out how it looked as recently as 2008 in the Internet Archive.

    A new Web site for Freedom of Information   John TedescoThe foundation erased that static page and replaced it with social media offerings. The home page is a WordPress blog, and the foundation now has a presence on Facebook, Twitter, Flickr and YouTube.

    The new site makes it easier for people to see the foundation’s good work, and it offers tips for people interested in open government. For example, Executive Director Keith Elkins gives advice on YouTube about how to effectively use the Texas Public Information Act to obtain government records.

    Social media still gets a bad rap in some circles, especially in the media. But look at the before and after shots of the foundation’s Web site. It’s not hard to tell which one is more engaging, and which one does a better job explaining to people why open government matters.

  • New blog: The Art of Access

    The Art of AccessIf you’ve ever had to deal with a government agency that tried to withhold public documents from you, check out Steve Myers’ interview with one of the authors of a new book and blog, The Art of Access.

    Instead of focusing on the intricacies of open-records laws, David Cuillier and Charles Davis write about the social dynamics between people who ask for records, and the gatekeepers who decide whether to release them. Cuillier says:

    It’s crucial to understand the constraints agencies work under to be more effective in getting what you need. Those folks don’t come to work with horns and cloven hooves. There is a whole bureaucratic world that thinks differently than requesters. Understand that world, and you’ll navigate around it much better.

    One technique the pair discuss on their blog is checking the job postings at government agencies to understand the agency’s attitude towards open government.

    By coincidence, the same week I learned about this open-records blog, there was local news about BexarMet’s ousted gatekeeper T.J. Connolly, who pleaded guilty to campaign-finance violations. We had written many stories about Connolly, one of which detailed his efforts to delay an open-records request at BexarMet. “I want to be as uncooperative as possible … without being obvious,” Connolly wrote to BexarMet officials.

    How did we learn about these stonewalling tactics? After Connolly and his supporters left the agency, we asked for their e-mails under the Texas Public Information Act. Under the new leadership at BexarMet, the agency was eager to appear more open, and handed over thousands of e-mails.

    So the authors of The Art of Access are making a very important point: The culture of an agency plays a huge part in determining how much access you get.