Open records game show

by

schwager-newBy Mary Schwager

Though I work in TV news, I never intended to sign up as a contestant on a game show where tenacity, negotiating skills and determination are how you win. No, casting directors aren’t beating down my door– and I certainly never won $64,000 in cash and a RV– but after I fax in a FOIA or hit ‘send’ on an public records request email, I hear game show theme songs playing in my head.

Why? Let me replay some of the “greatest hits” of replies I’ve gotten from state and federal offices.

Recently I asked a state agency for data about complaints it received about employees. Below is their first reply to me. Cue the theme to Fear Factor:

“I got a pretty good idea that this request will be quite costly
and quite lengthy to gather. We’ll get you an estimate.”

Oh, this old trick: Try to scare me away with the threat of some big price tag for the request. Cue the song for: Let’s Make A Deal. I immediately blasted this agency for giving similar data to another media outlet and requested the same info. About a half hour later an excel spreadsheet showed up in my inbox – free of charge.

A co-worker of mine put in a request to a state agency for actual copies of complaints about employees. Here’s the response he got:

“We submitted a estimated cost to Legal for copies of complaints for February 2008-March 2008 only. The total for just the Customer Support Services portion was estimated as $15,961.50.”

Whoa! Cue the song for: Deal or No Deal because there doesn’t appear to be much negotiating room in that statement. (And how many complaints do they have? Yikes! That’s a pretty big price tag).

I told my colleague how to play Let’s Make a Deal. Call the agency up and say, okay, let’s figure out a way to handle this request reasonably. How do you keep the complaints? Are they available electronically? Can I just come look through them? How about copies of the last 20 you received? Finally, you hear the theme song from The Price is Right.

Though the Massachusetts Public Records law allows state agencies to charge fees for researching, redacting and copying records, I feel the law is sometimes abused to dissuade people from getting what they requested. That is clearly NOT what was intended by the law’s sponsors. In fact, the Massachusetts Secretary of State’s interpretation of the law states (from its online guide):

“In the interest of open government, all records custodians are strongly urged to waive the fees associated with access to public records, but are not required to do so under the law.”

So if an agency wants you to shake you, they turn your request into a game. And how the players engage by the rules determines what kind of prize you may get.

Federal agencies have a completely different game show–cue the song to Survivor. Who can last the longest is how you win.

Shortly after I started working at WHDH-TV the guy from the mailroom called. He said, “There’s a big box down here addressed to the old investigative producer, it’s from the FDA, maybe you should come down and see what is in it.”

I wandered downstairs and opened it. Inside were the results of a Freedom of Information Act request my predecessor made about three years before. I couldn’t believe it. The story they were working on had long aired and the documents in the box were now about 10 years old, outdated for any kind of current story. But the feds won, those records certainly didn’t arrive in time for her deadline.

In 2004 I sent a FOIA the FDA asking for inspection records of certain mammography facilities. Here’s the response I received:

“Generally, you will receive an acknowledgement of your request 10­14 days after it is received. However, I cannot tell you how long it will take for an actual response. FOIA requests are answered in the order received, but I know there is a significant backlog.”

1014 days? Exactly? Really? How in the world did they come up with that one?

In 2005 I sent a FOIA to the US State Department for complaints they received about au pair agencies. They put us off and put us off. Finally, we just ran our story with what we had. (See my last blog posting for tales on those scenarios.)

Fast forward to 2008. One day the phone rang at my desk, I picked it and heard, “Is this Mary, Sch-wa-ger? Sc-hwag-gner? Schwa…? “

“This is so and so from the US State Department, I’ve just gotten your FOIA request, did you still want the complaints about au pair agencies?”

I burst out laughing and said, “are you serious, you’re calling me 3 years later?” The woman did not find it as humorous.

What’s up with the feds? Are they really so inundated with FOIA’s they just can’t keep up? Not only fielding media inquiries, but other public requests asking for info on what aliens are being held at Area 51? (Hmmm, not a bad idea… wonder if there’s video?) and all documents pertaining to the disappearance of Jimmy Hoffa?

Recently, The Federal Transit Administration was quick to turn some reports around for us. I actually wrote a note to the person’s supervisor telling them how grateful I was for the fast turn around and how impressed I was with the agency, I think I used the words “shocked” in my email.

Walter Robinson on this site, referred to journalists and public officials existing in a muddled arena. He’s absolutely right. I see more and more of my requests being thrown into that arena and then the games begin. Can they get rid of us? Can they scare us away? Can they outlast us? To have turned open record requests into a game is a shame because that certainly is not what the spirit of the law calls for.

You know what I just realized? It’s now 2008, and I still never heard back from the FDA about those inspection records…

Signing off now to go compete another day. And as Bob Barker would say, “Please spay and neuter your pets.”

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3 Responses to “Open records game show”

  1. Orville Seymer Says:

    As frustrating as the process can be, please don’t give up. The Open Records/FOIA process is the most powerful tool that individual citizens have to hold their government accountable.

    Thank you for keeping the pressure on.

  2. Elaine BK Says:

    I made a request for emails between board members from both our local school committee and local board of selectmen for the period Jan 1 2008 to present.

    The Town Administrator said there were over 700 emails and I would be charged $5000 for “legal review” to ensure no attorney client privilege would be breached. I was told by the school committee superintendent that she would charge $400 for legal review of the 114 emails sent by the school committee members. Clear intimidation.

  3. Mary Schwager Says:

    Oh yes, I’ve heard responses like that before.

    Just a thought to try to help– is there a specific topic in the emails that you are looking for? So you wouldn’t need all 114 emails? If you say only the emails pertaining to the “budget” or the “new school proposal”?

    Don’t give up, negotiate! Also check out this online guide published by the MA Secretary of State’s office to help:
    http://www.sec.state.ma.us/pre/prepdf/guide.pdf

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