When news organizations seek computerized data from the government under freedom of information laws, the bill can run into the millions.
By Russell Shaw
Russell Shaw is an Atlanta-based writer specializing in technology and media issues.
Last year the Houston Chronicle wanted to find out if the local police were treating whites more leniently than minorities when enforcing traffic laws. During its investigation, the paper asked the Texas Department of Public Safety for the records of motorists who had received citations in several suburbs. DPS refused, explaining that it would be illegal to separate out any specific "class" of driver.
Undaunted, the Chronicle tried a different tactic: It requested a copy of computerized records for all of the state's 12.5 million licensed drivers. DPS agreed, but only if the paper paid the standard $6 per record fee – a total of $75 million. DPS offered to lower its price to $60 million, but the paper declined and months later was able to obtain the records legally from undisclosed sources for free.
Stories like this outrage Bill F. Chamberlin, director of the Brechner Center for Freedom of Information at the University of Florida. Government agencies shouldn't try to make a profit from public records, he says. "Citizens and newspapers pay for government computers out of their taxes, and they are asking for what is rightfully theirs."
Unfortunately this scenario is typical. And as more journalists turn to computer-assisted reporting to monitor the government, and more bureaucrats use computer records to keep tabs on citizens, the fight over access will only escalate.
The conflict is due, in large part, to the increased sophistication of computer technology that allows news organizations to access and process massive amounts of data. Despite such advances, government agencies tend to handle requests under the federal Freedom of Information Act (FOIA) or similar state open records laws in the same way they did requests for paper documents. And even though data now can be easily stored on computer disks or tapes, cash-strapped agencies facing huge expenses to upgrade their own computer systems are charging higher and higher fees for access. Journalists shouldn't expect any favors, either. Many administrators don't differentiate between commercial vendors, such as catalog mailers, and the press.
Preparing data for the press is often intrusive and labor-intensive for government agencies, which obviously want to be compensated. The question is no longer, "Can we do that?" but, "How much should we charge?" says Dan Sprague, executive director of the Council of State Governments. "Any wise financial manager who is scrambling to pay for the service he provides is going to [charge]."
FOIA and many state records laws allow agencies to ask for a "nominal" or "reasonable" fee for providing records. But because such laws were written before personal computers were available, many officials still charge per-record fees identical to the prices for hard-copy paper documents. That rankles news organizations, which argue that since these records are now gathered electronically (5,000 pages of paper can be stored on one computer disk), the individual documents are, in essence, elements of one record. They say a charge of a few hundred dollars for a computer tape containing these records would be more reasonable.
The press has had some success in beating back overzealous fees. Three years ago, for example, the Dayton Daily News asked for computer tapes of all 7 million Ohio drivers' license records. Given that paper copies were $3 each, the price tag came to $21 million. The newspaper threatened to sue and eventually got the records for $400, most of it for computer-processing time.
Many journalists argue that agencies are charging huge fees because they don't know what computers can do, they're pressured to raise funds for new technology, or they simply don't want to deal with requests. Here are some common complaints journalists have about government obstacles to access:
G The bureaucrats who set FOIA fees don't talk enough to their agency's technical people, and they may be unaware of the capabilities of their data retrieval systems.
"In some cases, you might not make that much progress until you talk to a tech," notes Stephen Doig, the Miami Herald's associate research editor. Doig recently fought with the Dade County criminal court system over a $9,000 charge for public defender billing records. He suspected that the lawyers were billing clients for more than 24 hours a day. The Herald later got much of its information from another agency, which charged less than $400.
Because no two records requests are alike, it's hard to fashion a standard rate system. But downloading data on computer disks or magnetic tape is often cheaper than paper copies. Investigative Reporters and Editors suggests a per-tape cost that, given tape prices and duplicating time, should often be free and rarely exceed a few hundred dollars.
"In many of these instances, all you are talking about is having them type a command, us shoving our diskette into a slot, and that's it," says Pat Stith, a reporter at the Raleigh News & Observer. "How complicated is that?"
GA few agencies have adopted a novel approach to addressing FOIA or open records requests for large amounts of material. They transfer the records to private, commercial archives, which have fewer qualms about making a profit or "recovering costs."
In the early 1980s, the Justice Department contracted with West Publishing Co. to provide judicial opinions for the department's JURIS online information service, which was available to federal and state employees. West Publishing, which adds case notes and summaries to the public-domain court opinions, offers the data to private individuals and organizations through its online service, Westlaw, at a cost of as much as $240 an hour. Tax Analysts, a nonprofit publishing company, has filed suit seeking to make these federal judicial opinions, without West's additions, available from the government at no cost. "U.S. statutes and the opinions of U.S. judges are public property," says Thomas F. Field, executive director of Tax Analysts.
GNew computer systems are seen as ways for government agencies to make money. In many cases, agencies bought costly retrieval systems only after top officials lobbied for them, so the pressure to justify the purchase can be immense. Some agencies also market their computerized information to insurance companies and direct mail marketers. They consider the media to be just another profit-making client.
"That magnetic tape record has probably been sold to a lot of people who haven't been journalists, and has proven a pretty valuable asset," explains reporter Dave Davis at Cleveland's Plain Dealer. "Then a journalist walks in their door and expects different treatment."
GPublic officials fear what reporters might find out, or they are short of staff and funds and hope high fees will discourage reporters from making requests.
"Bureaucrats are trying to stop access because they don't want to risk losing control," says reporter Christopher Schmitt of the San Jose Mercury News. "When they give up information as raw data, they give up control of that information. They then subject themselves to analysis of information that might in turn hurt that agency."
Some administrators may have good reason to fear losing control. To any reporter who has seen the potential of gaining access to computerized public records, every bit and byte stored at the courthouse or oversight agency becomes a potential scoop. Sophisticated new software can easily compare and contrast various data fields and provide telling statistics.
But Don Mason, the Houston Chronicle's special projects editor, doesn't buy the idea that bureaucrats are control freaks. "I don't read a lot of conspiracy into these instances," he says. "They are probably doing it because it is new, it is a hassle, and they simply don't want to mess with it."
GGovernment managers fear reporters might not be versed in the fine points of the agency's management and will misinterpret the data they're given.
"Since the average reporter considers computer programming 'high math,' there is reason for that concern," Doig concedes. He recalls a 1991 investigation in which the Miami Herald obtained records of all driving-under-the-influence verdicts in Dade and Broward Counties. These records were then integrated with demographic information to see if there were sentencing inconsistencies between counties or judges. According to the newspaper, 2 percent to 3 percent of the judgments indicated no fine or jail term, giving the appearance that the charges had been dismissed. It turned out that the Herald database search did not include statistics for sentences of community service in lieu of jail or a fine. Hence, some judges were seen as much more lenient than their colleagues, when in fact they weren't.
Al Rutherford, former marketing director of the information technology department for Dade County, Florida, argues that many journalists expect too much from agencies while demanding bargain-basement fees. Not only do they want the data, he says, they also want the agency to process and package it for*them. And is it the government's responsibility, he asks, to purchase or write software programs allowing the press to view or interpret data?
"We are not obligated to provide the records in a format you define," he says. "The media would rather push us hard to define a record, and we should write a format for whatever it is they want to see. Our law says if the requester is willing to provide the cost, we may elect to do that."
Many agencies also are concerned with protecting the privacy of citizens. For instance, drivers license data might include the addresses of police officers and judges. Officials argue that someone bent on revenge posing as a journalist could then theoretically gain access to this data. Many journalists argue that the scenario is unlikely.
In most systems, the best way to keep such information from the public is through a process called redaction, or "flagging" sensitive names to prevent them from being released.
Last year, the Florida Society of Newspaper Editors drafted guidelines calling for the inclusion of redaction programs in "all databases that mix public information with material that is exempt from disclosure." If the agency doesn't have a redaction program, the guidelines say it should either edit its databases, allow information requesters to provide their own redaction program or flag requested records.
Rutherford says that isn't a solution. "The media says that adding these redaction routines is no problem," he says. "But it is a problem. It costs money." As simple as redaction might sound, Rutherford says he and other agency heads are put off by news organizations that demand, rather than ask for, redacted files. Agencies are less inclined to cooperate, he says, "if you are going to come at us with a club."
In some cases, however, the key to overcoming resistance to FOIA is not courtesy but determination. In 1993, after conducting interviews with maintenance personnel at several airports, Cleveland's Plain Dealer asked the Federal Aviation Administration for reports on what it suspected was a faulty radar system. The FAA first estimated the cost of the reports at $77,000, but when confronted with information gleaned from the interviews, the agency gave the paper the reports for free.
Reporter Dave Davis recalls that the newspaper told the FAA, in effect, " 'Hey guys, we know more about computers than you think we do.' Usually if you stay at it long enough, you can get stuff for a reasonable price." l