Seven Habits of Highly Effective Open-Records Users - Frank X. Mullen - Las Vegas NewsTrain - Oct. 10-11, 2014
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Longtime investigative reporter Frank X. Mullen of Reno, Nevada, discusses why and how to be an effective open-records hunter, with special emphasis on the Nevada open-records law. This presentation -- Seven Habits of Highly Effective Open-Records Users -- was part of the Las Vegas NewsTrain on Oct. 10-11, 2014. Please see associated handouts: Document Scanners, FOIA Tipsheet from IRE, Nevada Open-Records Law Procedures, Open-Records Resources and True-False on Nevada Public Records Law. NewsTrain is a traveling workshop for journalists sponsored by Associated Press Media Editors. For more information, visit http://www.apme.com/?AboutNewsTrain
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Seven Habits of Highly Effective Open-Records Users - Frank X. Mullen - Las Vegas NewsTrain - Oct. 10-11, 2014
- 1. By Flickr user Bell Telephone Magazine (1922) SEVEN HABITS OF EFFECTIVE PUBLIC RECORDS USERS Frank X. Mullen | Las Vegas NewsTrain | Oct. 10-11, 2014
- 2. RECORDS FLESH OUT BREAKING NEWS 2 By Flickr user Internet Archive Book Images
- 3. PUBLIC RECORDS ARE TIME MACHINES 3 Nevada Historical Society; By Flickr user Steve.
- 4. 4 DOCUMENTS PIERCE THROUGH THE SMOKE OF OFFICIAL BS By Flickr user Kevin Dooley
- 5. PUBLIC RECORDS CAN HELP CHANGE PUBLIC POLICY 5 y By Flickr user Fotos GOVA By Flickr user Robotclaw666
- 6. WHY USE PUBLIC RECORDS? THAT’S WHERE THE FACTS ARE. 6 •What about you? •Have you used them? •What happened?
- 7. TO BE A PUBLIC RECORDS HUNTER: 7 • Know the law • Identify the records you need • Defend your request Photo by Susan Skorupa Mullen
- 8. TIME FOR A POP QUIZ! 8 By Flickr user sea turtle
- 9. 9 By Flickr user Darrow21 ALL GOVERNMENT RECORDS IN NEVADA ARE PUBLIC AND OPEN FOR INSPECTION, EXCEPT… KNOW THE LAW: NRS 239
- 10. SOME STANDARD EXEMPTIONS ARE: 10 • Open criminal investigations • Medical Records • Employee records • Exemptions in other statutes By Flickr user Library of Congress
- 11. 11 By Flickr user Zeus and Hera ID WHAT YOU NEED AND FIGURE OUT WHERE DOCUMENTS ARE KEPT
- 12. 12 By Flickr user L’oeli estranger Know the law Be nice Use verbal aikido Kick it upstairs Confrontation is a last resort DEFENDING YOUR REQUEST
- 13. By Flickr user Pepe Medina WAYS AROUND OBJECTIONS
- 14. 14 WWW.reporter.org/desktop By Flickr user Bunnyrel QUICK SEARCHES
- 15. LETS DO SOME ROLE PLAY 15 Photos by Steve Davis
- 16. DEFEND YOURSELVES! 16 By Flickr user Edzed Photography
- 17. 17 By Flickr user MattysFlicks BRAINSTORM IDEAS
- 18. 18 Photo by Steve Davis PUBLIC RECORDS RULE!
Editor's Notes
- In ancient times, about 15 years ago, it was thought that reporters had to be experts to dig out public records Documents were hard to find and the effort took too much time. The internet has made it easier, but not everything is available digitally. Not to worry. You already own the best public-records-seeking machine ever invented: your brain. The important things: know the law, figure out what you need, and know where to look and how to overcome obstacles between you and the documentation you want. But you’re as busy as a copy editor in a writing class for 100 second-graders. So WHY BOTHER? Well, because…(click)
- It’s not just a bad pun. One day a police scanner report about a “dead body in the road” got me over to Taylor Street in Reno. The “victim” was a human skeleton found by a utility crew – entombed five feet beneath the asphalt. “Freezing cold case,” the homicide cop said. “Remains of a robust male, in his 20s, and the skull has Asian features,” the coroner told me. “He’s been there maybe 100 years. That’s probably all we’ll ever know.” Nahhhh…not necessarily. (click)
- At the Nevada Historical Society in Reno an 1871 Sanborn fire map showed a Chinese railroad workers’ camp 60 yards from the future location of Taylor Street, which became a street in 1904 and was paved with a 10-inch concrete roadbed in 1928. City and utility company records showed the spot was relatively undisturbed until the utility crew started digging that day. The research took about three hours. The subsequent story became the key part of the police report and, as an unexpected bonus, the previously-aloof homicide detective returned my calls on cases thereafter. Public records also serve as pillars in support of enterprise stories. Documents cut through the he-said, she-said fog of controversial issues…(click)
- For decades, the U.S. Army had been annually burning or detonating millions of pounds of unstable or obsolete munitions in the open air at a base on the Nevada-California border. The Army said pollution “never gets past the fence line” and the toxic clouds were of danger to residents downwind. By accessing and analyzing the Army’s own records and reports, it was irrefutable that the Army routinely violated federal and state laws, county air pollution permits and its own safety regulations. As a result of the stories, the Department of Defense banned open detonation of unwanted munitions throughout the nation. Safer methods now are used. That’s the bottom line: documents make stories stronger and strong stories often help people…(click)
- Cover a beat? On the health beat, Nevada public records proved inadequate hospital sanitation helped spread “superbugs” from patient-to-patient. That resulted in stronger laws and tighter policies for health-care facilities. From hospital rooms to the halls of the Legislature, documents made peoples’ lives safer. (click)
- Who here has used public records? What did you learn from the experience? ……………… OK. Let’s talk about what you need…(click)
- To get what you need. We’ll give you a list of Seven Habits of Effective Public Records USERS, but you really need just three to be able to get records when you get back to your jobs: (click) Know the law and its exceptions; (click) figure out what records are available and which ones will help you; and (click) know how to defend your requests and overcome obstacles. But for now…(click)
- Let’s take a few minutes to see how much you may already know about Nevada’s open records law…(click)… (3 minutes) Thanks. All open records requests begin with the state open records statute. Let’s see what the law says. (Click)
- Nevada Revised Statutes Chapter 239 mandates all records produced with public money are public and should be open to inspection during regular business hours. The public has a right to inspect, copy and/or obtain such records UNLESS OTHERWISE EXEMPTED BY STATUTE…(click)…
- Exceptions to the law include employment records, records of (click) ongoing criminal investigations, (click) medical records, (click) and other specific types of records exempted by other statutes. If you are denied access to records, the first question to ask is “what is the exception to the open records law in the state statutes that covers this type of record?” The agency may charge a “reasonable fee” for releasing copies of records. The law says, “Such a fee must not exceed the actual cost to the governmental entity...” Make them itemize costs. You also can ask for a waiver of the fees “in the public interest.” Digital media – including emails -- falls under public records law. The agency may also use a “balancing test” to decide whether the records should be released, weighing the public’s right to know against any harm that could result from releasing the records. What are they balancing? The law limits such defenses to criminal cases but agencies try it anyway.
- Public records must be made available for public inspection during business hours in the office where they are held. Know what your questions are… Such as “Which nursing homes are safer than others?” Then find out who regulates nursing homes, what inspections are required and who controls those reports. Are the documents available on line? If not, where are they? Go in person if possible. Write a request letter if need be. Try to narrow down the request to the records you need, but don’t make the request so broad they can “haystack” you by claiming you want 100s of thousands of pages. If you need just a few records in a very big haystack and cost is an issue, consider using a hand-held scanner. They are available from $90 on up. Records unavailable from one agency are often duplicated at another. Redundancy rampant in government. Redundancy is rampant in government! Think! Narrow it down. Then….go get them…(click)
- You will often meet resistance. Avoid meeting it head-on. As in some martial arts, go in the direction of the your opponent. They are too busy? Yes, you understand the office is overworked, understaffed and underpaid. Can you return a bit later? Make them understand you are like them. Your boss is a maniac, too, but the law says the records are open and you are expected to get them, no excuses. Your job is on the line. If an agency claims it doesn’t have records that show how much money was collected, taxes paid, violations found, …whatever. Be happy! A story about an agency that isn’t accountable to the public is even better than the story you are working on. Thank them for the tip! Wow, that’s Pulitzer material! (The implication is that heads will roll.) Usually, a bureaucrat will do anything to prove they and their agency aren’t as inept as you are making them sound. Go over their heads to their supervisors if need be. Involve a friendly lawmaker or local elected official. Only become confrontational as a last resort. When county clerks complain records are in archived storage, remind them the law says such records must be produced within three days. (click)
- Often, the people in charge of records will tell you that because the records contain SOME off-limits information, such as people’s social security numbers or references to medical conditions, the entire documents are off-limits. Not so! Ask that the sensitive information be redacted (and if the agency claims an exorbitant fee, ask for an itemized accounting to back up their claims). Protest if the redactions are obviously rampant in the documents. Make the agency prove its case. The agency isn’t required to create new records in the format you want. Get what they have and sort the data yourself. But searches don’t have to take a lot of time and effort. (click)
- (click) Often you need background information on deadline. You want to quickly check for monsters under the bed. Some newsrooms subscribe to Lexis-Nexis, a search engine used by lawyers that quickly provides access to public records from names and addresses to real estate transactions and other valuable data. If you have access to it, learn how to use it. PACER is the federal court system and has filings on line. Nevada Courts usually have only name searches for case numbers on line. You have to go to the county courthouse for documents. A good resource is the Reporter’s Desktop by investigative reporter Duff Wilson. The “Who is John Doe” function provides some basic information on people without having to spend a lot of money on commercial databases. Zaba Search is an excellent, free people finder. But the main thing is being able to defend your open-records requests against objections from people who just don’t want to give you what are clearly public documents. (click)
- (click) (German accent) You don’t have to be Albert Einstein or (Broadcaster voice) Edward R. Murrow to obtain open records in Nevada. This is NOT quantum mechanics or the Battle of Britain. But you do have to think on your feet. Let’s do some role-playing. Your jobs are to….(click)
- (click) Defend your open records requests against the following objections: --“Those records aren’t public.” – {The burden is on the record custodian to establish they are not public. “Please tell me in writing, under what other statute, do you withhold the records?” Is there another agency (local or federal), that might have the records? Are there any documents or files to which access could be given if privileged portions were removed?} --“The copying charge is going to be $5,000.” – {Request a waiver. Buy a hand-held scanner. The law says, “Such a fee must not exceed the actual cost to the governmental entity to provide the copy of the public record.” Make them prove their costs. “Oh, we don’t have a breakdown of the fees and penalties we collected at the DMV. We just know we collected a total of $3.2 million from Nevada drivers last year.” {Yippee! That’s a better story. You are unaccountable to the public! Thanks so much. I smell a Pulitzer!) --“We don’t have time to pull those records for you.” – That’s not a legitimate reason to withhold records under the law. Can I come back tomorrow? Go over their heads. Get a lawmaker or elected official involved. -- “You can’t have those (closed case) police reports because they contain the names of sexual assault victim” -- {Redact the victim(s) name(s) and turn over the reports. --“That record is in storage.” The county recorder has three days to produce the microfilm. -- “Sorry, the search warrant affidavit is sealed by the court.” – {OK, I need to see copy of the request to the judge that resulted in the afidavit being sealed.” “Oh, that’s sealed too.” – {OK, where the request that got that one sealed?} -- “I’m withholding the records under Nevada’s “balancing test.” – The balancing test applies only in limited circumstances. What is being balanced against what? “Children will die!” Oh, don’t be an idiot. THESE WOULD GO ON FOR AS LONG AS TIME ALLOWS. Now, let’s….(click)
- OK. Let’s take a few minutes to brainstorm with a partner about what story they will pursue that involves public records and what their first step will be when you get back to your newsroom. One partner should be ready to present the ideas in about three minutes. (Three minutes later) What did you come up with? (Offer feedback.) That wraps up our session. I’ll be available for questions and comments afterwards. Thanks for your attention. And please remember… (click)