10 HABITS OF HIGHLY EFFECTIVE

OPEN-RECORDS USERS

Joey Senat, Ph.D.

Associate Professor

School of Media & Strategic Communications

Oklahoma State University

LET’S START WITH ATTITUDE

Develop …

1. An Open Government State of Mind

■Don’t be shy about asking for public records or attending public meetings.

■Access to governmental records and meetings is the only way we can study and challenge decisions made by those elected or hired to govern.

1. An Open Government State of Mind

■ Information = Political Power

■ Secrecy = Corruption, Incompetency & Inefficiency

• “Openness in government is essential to the functioning of a democracy.

• “To verify accountability, the public must have access to government files.”

– Okla. Pub. Emp. Assoc. v. State ex rel. Okla. Office of Pers. Mgmt., 2011 OK 68, ¶ 36

1. An Open Government State of Mind

■ Secrecy = Corruption, Incompetency & Inefficiency■ “Public access to government files …

1. Checks against the arbitrary exercise of official power and secrecy in the political process,

2. Gives private citizens the ability to monitor the manner in which public officials discharge their public duties, and

3. Ensures [performance] in an honest, efficient, faithful, and competent manner.”

■ Vandelay Entm’t LLC v. Fallin, 2014 OK 109, ¶ 26

2. Documents State of Mind

■Why records are important:

– Tangible evidence

– Verify or contradict what sources said

– Provide details that sources can’t remember.

2. Documents State of Mind

■Why records are important:

– Provide more information than reporter could gather alone

– Contain verbatim accounts

– Make historical comparisons using records issued at regular intervals

2. Documents State of Mind

■Questions to ask about records:– How was the information obtained?– What motivated the writer of this

record?– How complete is it? What’s missing?– What might be wrong about the

analysis?

2. Documents State of Mind

■Assume that somewhere a record exists with the information you need.

■Think of the paper trail in your life.

Circle of LifeBy Duff Wilson & Deb Nelson

■Background a person:– Write the person’s name in the middle of paper or

white board.

– Around the name, write down roles the person has in life (e.g., married person, business owner, driver, pet owner, property owner, pilot).

– Then write the records available for each role.

JoeySenat

Husband

Faculty Member at Public

University

Property Owner

Registered Voter

3. Be Lucky, Not Lazy

■ “I’ve met a lot of lucky reporters. I’ve never known a single lazy lucky reporter.”

– Jim Polk

■ Pulitzer Prize for his coverage of Watergate

■ Sigma Delta Chi national reporting award

■ Raymond Clapper award twice as best reporter in Washington, D.C.

■ NBC investigative reporter

■ Senior producer for CNN's Special Assignment

3. Be Lucky, Not Lazy

■Why aren’t there lazy lucky reporters?

– The lucky reporters never quit trying.

– They always keep looking for records and sources.

– It is the drudgery of making sure of details that uncovers the unexpected.

– Just ask Sean Hill.

MAKE YOUR OWN LUCK

BE a LUCKY

REPORTERPhoto under a Creative Commons license by Flickr user John

4. Know the Open Records Act

■Boone State University officials in Toad Lick, Okla., are negotiating to purchase Moose Mall, a shopping center adjacent to campus. Reporters for The O'Golly, learned about the negotiations, but university officials are refusing to be interviewed.

4. Know the Open Records Act

■O'Golly reporter Suzy Sophomore asked to inspect all university records regarding the decision to purchase the mall. University officials said she could not have the information unless she filled out a form explaining why she wanted it.

4. Know the Open Records Act

■Officials then refused to release the records until BSU Vice President Larry Birdbrain returns from a conference in a few days. Birdbrain is the only person authorized to release the records and also should be on hand to answer her questions, university officials explained.

4. Know the Open Records Act

■Sophomore also asked to inspect all shopping mall-related emails that officials had sent or received on their private email accounts. Officials refused her request, saying emails on private email accounts are just that --private -- and that BSU doesn’t have access.

4. Know the Open Records Act

■Officials also said Sophomore would have to pay for copies of any records she wanted to inspect. The copying cost would be $2.50 per page. They also charged her a search fee of $100 per hour.

4. Know the Open Records Act

■Sophomore learned that Toad Lick PD had used its drone to shoot video of the shopping mall and surrounding area. BSU officials had viewed the video at the TLPD. Sophomore asked TLPD for a copy of the video. Officials refused, saying drone video isn’t in the ORA’s definition of public record.

4. Know the Open Records Act

■Presumption of Openness– All records are PRESUMED OPEN

UNLESS statutorily exempted.OPEN

Exempted

4. Know the Open Records Act

■Presumption of Openness

• Always assume a record is open.

• It’s up to the government official to explain why it is not.

• Ask the official to cite the exemption.

• Check the exemption! Does it apply?

5. Find Records Pertaining to Your Beat

Statutes

• Federal: Library of Congress (www.loc.gov/law/help/statutes.php)

• State: OSCN.net (Click: Legal Research / Okla. Statutes Citationized)

Regulations

• Electronic Code of Federal Regulations (www.ecfr.gov/cgi-bin/ECFR)

• Okla. Secretary of State (www.sos.ok.gov/oar/)

5. Find Records Pertaining to Your Beat Court cases:

• Federal: Legal Information Institute (www.law.cornell.edu/federal/opinions.html)

• State: OSCN.net (Click: Legal Research / Oklahoma Cases)

Reports:

• U.S. Government Accountability Office (www.gao.gov)

• Okla. State Inspector and Auditor (www.sai.ok.gov/)

Read them! Don’t rely solely on the interpretation of others.

6. Map the Agency

Read its website to find out what it does.

Statutes and regulations often prescribe what records must be kept and how they must be published and stored.

• Oklahoma General Records Retention Schedule (libraries.ok.gov/state-employees/records-management/records-scheduling/)

6. Map the Agency

What records does this agency produce? Who has those records?

• Master list of records?

• Ask for blank forms

• Government programs funded by higher governments must issue progress reports or audits to those higher governments.

• During interviews, always ask government officials for documentation.

7. Get in the HABIT(SPJ’s Access Across America)

■ FOI First on Fridays – Every Friday (or whatever day of the week works

best for you), submit a public records request.

– Track your requests in a spreadsheet. Follow up.

– What records should you start requesting?

7. Get in the HABIT (SPJ’s Access Across America)

■ Train the Agency– Get the agency used to you asking for records. Ask first

for tame records, such as reports, expenses and contracts.

– Ask for emails of the mayor for the past week.

– When you find you really need those email records, they’ll be accustomed to providing that kind of information.

7. Get in the HABIT(SPJ’s Access Across America)

■Get Inspired– During lunch, visit FOI websites to see the great work

other journalists are doing with documents.• IRE’s Tipsheets and Stories (www.ire.org) • SPJ’s Quill magazine (www.spj.org/quill.asp)• SPJ’s Open Doors (www.spj.org/opendoors.asp)

– See the challenges they face. Even though it seems like your readers and sources might not seem to care about access, know that you aren’t alone. Others like you are out there.

7. Get in the HABIT(SPJ’s Access Across America)

■ FOI Poaching

– Routinely request all the FOI requests an agency has received.

– Learn: • What tips or projects other reporters are working on.

• What records the public seeks.

• If the agency routinely denies access to records lawfully open.

8. Remember the 3 I’s■ Individual

■ Institution

■ Issue

■Different records available for each one.

■ Focus on appropriate level of government to find the records.

9. Politely (but firmly) Request Records

■Ask in person.– A clerk behind the counter can be more helpful than

accessing records electronically because clerks can frequently provide records not available online. (Remember Sean Hill.)

9. Politely (but firmly) Request Records

■ Look for FREE first before asking for copies.

• Use your smartphone to take photos or scan the documents.

• Ask for electronic files on CD or emailed for free.

• Remember: No search fees for news media, scholars, authors and taxpayers seeking to determine if government is doing its job honestly and competently.

9. Politely (but firmly) Request Records

■Be polite (but persistent).

9. Politely (but firmly) Request Records

■ If the agency official seems unsure:

• Argue for your interest (I wish to analyze ambulance response times to find trouble spots), not positions (I want your database).

• Allow face saving by suggesting that the legal department examine the issue.

9. Politely (but firmly) Request Records

■ If the agency official seems unsure:

• Apply negotiation jujitsu (David Cuillier & Charles Davis)

– Invite criticism and advice for how to analyze the information.

– Use questions instead of statements.

– Use silence after an unreasonable attack.

– End conversations with a compliment.

10. Don’t Just Take No For an Answer

■ “The record doesn’t exist.”– Ask the officials who would have generated the

record.

– Don’t rely on the word of a single person.

– Ask the supervisor or other person in charge.

10. Don’t Just Take No For an Answer

■ “The record doesn’t exist in an electronic format.” (or a specific electronic format)

– Does that make sense?

– Ask how the information was generated.

– Does the agency use a pencil and paper? Typewriter? That would be NEWS.

10. Don’t Just Take No For an Answer

■ “Copying the data with fields redacted would create a new record, and we aren’t required to do that.”

– Not creating a new record. It’s copying existing data.

– No different from getting a copy of a paper file with some information (fields) redacted with a black pen.

10. Don’t Just Take No For an Answer

■ “Our proprietary software doesn’t allow us to copy data.”

– Confer with the agency computer technicians.

– Call the software maker. No doubt the company will want everyone to know how useful and versatile the software is and explain how to copy the data.

10. Don’t Just Take No For an Answer

■ The agency hasn’t responded to your request.– Go by or call every day to find out what happened.

– Address another letter or email to the agency head, elected officials overseeing the agency, and your state legislators.

o Note that you haven’t received a response.

10. Don’t Just Take No For an Answer■Get help.

• FOI Oklahoma (foioklahoma.org)

• Tell your readers or viewers.– They’re not saying “no” to just you. It’s to the

public as well.

– Explain what the law says and why access to the record is important.

10. Don’t Just Take No For an Answer

■Don’t get mad. Get busy!– Where else could the information be found? Go find it.