capitoldisclosure

How Some States Put the Lie to the Public’s ‘Right to Know’

For the past few months, I’ve been working on an investigative story that requires filing public records requests in several states. I tend to file more federal than state requests, which means I’m used to waiting, and waiting, to get my hands on documents. Sometimes they’re never produced.

So I was pleasantly surprised when several states produced the information I asked for within days or a week of my request. But then I ran up against the laws of Arkansas and Tennessee.

I knew a handful of states prohibit out-of-staters from obtaining records. But it wasn’t until this past week that I had to personally contend with laws that limit freedom of information requests to state residents only — even if the consequences of those actions cross state lines.

An attorney with an Arkansas state agency told me that he had the records I wanted, but was denying my request because I don’t live there. (I checked with a lawyer at the Reporters Committee for Freedom of the Press to make sure the residency requirement was still in effect. He confirmed that it is.)

I filed two public records requests in Tennessee, one to a university and another to a state agency. Jason Miller, an agency attorney, emailed me this message: “The Department denies your request pursuant to Tenn. Code Ann. §10-7-503(a)(2) on the basis that state records are open for personal inspection by any citizen of Tennessee, and your request does not appear to be submitted by a Tennessee citizen.” A university administrator told me she would deny my request unless I produced a valid Tennessee driver’s license or current utility bill.

Enterprising reporters can find proxies to file requests on their behalf. I found someone in Arkansas willing to help me through the Arkansas Press Association. I’m still working on finding a proxy in Tennessee. (For more tips on how to access public records from state and federal agencies, check out “The Science Writers’ Investigative Reporting Handbook.”)

Virginia also has a residency requirement, though it does allow exemptions for journalists whose outlets publish in the state.

Residency requirements impede journalists’ ability to do our jobs by blocking access to public documents that may be critical to investigations that cross state lines. They interfere with our ability to inform citizens about issues that affect them. 

States have defended their residency requirements by saying out-of-state requests strain resources that should be reserved for their citizens. That’s what Virginia Solicitor General Earle Duncan Getchell argued in 2013 before the Supreme Court in McBurney v. Young.

The case was brought by two out-of-state residents, Mark McBurney of Rhode Island and Roger Hurlbert of California, who challenged Virginia’s denial of their request on constitutional grounds. Getchell argued that handling out-of-state requests creates a financial burden because the state has to hire people to do the work but can’t charge for overhead. “As one who is subject to FOIA requests,” Getchell argued, “we have a finite number of officials and employees who have to address these things.”

Several justices questioned whether fulfilling out-of-state requests really constitutes an added burden, since the state has to maintain the databases for Virginia citizens anyway. But in the end, they ruled in a unanimous decision that denying out-of-state residents access to government records does not violate the U.S. Constitution. “The Court has repeatedly stated that the Constitution does not guarantee the existence of FOIA laws,” Justice Samuel Alioto wrote.

Supreme Court decisions notwithstanding, there’s no doubt that states routinely make decisions that affect citizens beyond their borders. Consider the ongoing efforts by New York, Pennsylvania and other Northeastern states to curb air pollution from coal-fired plants in several states in the South and Midwest — including Virginia and Tennessee. Reporters and citizens in upwind states have every right to know why Tennessee, Virginia and neighboring states have failed to implement pollution controls.

Access to information may not be a constitutional right, but it’s essential for journalists to monitor government and serve the public interest. “Events that occur within Virginia are newsworthy beyond its borders, and non-citizen journalists across the country require access to state records in every jurisdiction,” a coalition of journalism groups argued in an amicus brief in support of McBurney and Hurlbert. “Access to state public records by non-citizens aids comparative and macro-analysis reporting thereby allowing the press to fulfill its watchdog role.”

Residency requirements make a mockery of the transparency that open government laws are meant to embrace. State officials who enforce these restrictions in effect say, we have the documents you want, but you don’t meet our arbitrary requirement, so we’re just not going to give them to you. That attitude undermines the public’s right to know what our government is up to.

The vast majority of states respect that right, with no residency restriction. We can continue to find people to file requests on our behalf in the few outlier states that don’t. Or maybe it’s time to push for an end to hollow talk by elected officials, and make state governments embrace both the spirit and intent of open records laws.

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Investigating Science: All Hands on Deck

Health and science reporters received a shock a few weeks ago, when they learned they’d soon lose one of the smartest resources out there for covering health care. “It appears that this unique project’s span of more than 12 years of public service to journalism and to the general public will end in December, when HealthNewsReview.org ceases publication,” wrote the site’s founder and editor, Gary Schwitzer. “Our current funding ends then with no replacement funding in sight, and I will slip into retirement.”

The site’s experts and journalists analyze health care research and claims made in studies and press releases — often by calling out those who parrot hyped results — to help reporters avoid common pitfalls. It also provides a database of experts with no affiliation to industry, a particularly valuable tool, given the body of evidence showing that industry-funded research tends to favor the sponsor’s interests.

HealthNewsReview has long provided the type of critical oversight of health research that I wish we had for science reporting as a whole. (The Knight Science Journalism Tracker offered a similar service, peer reviewing science stories, until it shut down in 2014.) There’s no denying that it’s fun to write about the strange beauty of the natural world. And there’s certainly a need for those kinds of stories. But at a time when climate-change deniers occupy the highest offices in the land, it’s imperative that more science-savvy journalists spend time scrutinizing science, to uncover cases where it’s abused to serve private interests.

Many of the science reporters I interviewed for “The Science Writers” Investigative Reporting Handbook” have long covered science as they would any other beat. Deborah Blum, who runs the Knight Science Journalism Program at MIT, worries that science journalists are too often trained to think the official version of an event is the truth. Yet the truth is multifaceted, she told me, and in the end science is really just about people trying to understand the world around them. “That doesn’t elevate it from being a human enterprise just like everything else, full of hubris and ego and mistakes and cover-ups and all the other things that attend to every human enterprise.”

Journalists play a critical role in democracy by giving readers the information they need to be good citizens. Science journalists can do the same by treating science, and scientists, with skepticism. News stories about the latest science developments are important, said Charles Piller, an investigative reporter for Science magazine, but that’s just part of how the public should understand science. “That’s why investigations into all the elements that might undermine or corrupt or influence the way in which scientific work is understood and interpreted are really vital.”

Every day brings new details about the many ways the Trump administration is trying to delegitimize the science that underpins critical health and environmental regulations. We need all the tools at our disposal to monitor and expose abuses of science to serve powerful interests. I hope someone with deep pockets steps in to save HealthNewsReviews.org. But I also hope more science journalists are moved to dig beneath the surface to reveal when individuals and organizations distort science to subvert the public interest. That involves unearthing information of public importance that someone doesn’t want revealed. And making, rather than reporting, news. Now, more than ever, that’s exactly what democracy needs. As Zen radio reporter Scoop Nisker used to say, “If you don’t like the news, go out and make some of your own.”

Learning from the best

The annual Investigative Reporters and Editors conference, which wrapped up Sunday, is always jam-packed with tips, tools and advice for both novice and veteran investigators. But if, like me, you weren’t able to make it this year, there’s plenty of wisdom to be soaked up simply by scanning the #IRE18 feed on Twitter. Like this:

It’s well worth reading through the 2,000-plus tweets posted by reporters eager to share what they’d gleaned from some of the best in the business. But of course that takes time, so I’ve pulled out some pearls to ponder and resources to explore. 

It’s inspiring to see the camaraderie and generosity of journalists trying to help their colleagues up their game and find and tell the best stories they can. They’ve offered tips on tracking this administration’s daily assaults on science, human rights and democracy, and encouraged reporters to figure out how those abuses are playing out in their communities and how to give voices to those struggling to be heard.

The sessions covered an incredible diversity of topics, from tips on reporting techniques (software for data reporting, investigative interviewing tips, data visualization programs) to advice on covering specific issues (guns, healthcare, crime labs) and much more. I’ve highlighted below some tips and resources to introduce science journalists to the mindset and tools investigative reporters learn. But I encourage you to scroll through #IRE18. You might find just the tool you’ve been looking for to add depth to your reporting. 

Of course, virtual tips from the conference are great, but there’s no substitute for being there. Look who showed up this year.

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Investigative science reporting is good for us all

 

A quarter-century ago, a hard-nosed Chicago Tribune investigative reporter named John Crewdson excoriated science journalists, in a piece headlined “Perky Cheerleaders,” for covering their beat as true believers, anxious for great scientists to perform great feats. “When Professor Schmidtlapp says he’s discovered something big, the science writers, their collective belief reaffirmed (and their own stature enhanced), don’t draw their guns and make him put his cards on the table,” Crewdson argued. “They don’t flyspeck his raw data, don’t check his funding sources, don’t scrutinize his previous articles for mistakes … They like science, they probably admire Schmidtlapp and they’re excited by the prospect that he’s right. So they just ask him how to spell whatever it is and write it down.”

A variation on the “science writers as stenographers” trope has emerged periodically ever since Crewdson landed this first blow. I appreciate the call for greater scrutiny of science, and make a similar plea in The Science Writers’ Investigative Reporting Handbook — the third in a series of how-to guides published by members of SciLance, the science writers’ tribe who brought you this blog. (See below, for more on this series.)

But — and this is a big but — I believe this perennial knock on science writers deserves greater scrutiny as well. It overlooks the many examples of tough-minded stories that have revealed how individuals and powerful interests have used and abused science in pursuit of private gain. I also believe, based on countless conversations with colleagues over the years, that many science writers would like to try investigative reporting but haven’t done so because they weren’t sure how to start.

That’s why I sought — and gratefully received — a Peggy Girshman Idea Grant from the National Association of Science Writers. I wanted to demystify investigative reporting for my fellow science writers and give them both the tools and confidence to launch their own investigations. I wanted to share the knowledge I’d picked up on the fly as a greenhorn, and later gleaned from workshops, tutorials, my own accumulated experience and sage advice from veteran investigators. The grant gave me the opportunity to revisit all the materials I’d benefited from over the years and talk shop with veteran investigators who’d parlayed their indignation at injustice into reform-sparking exposés. (It’s not a coincidence that the acronym for Investigative Reporters and Editors is IRE.)

Some reporters believe there’s no real difference between investigative reporting and other types of journalism. For them, it’s all just good reporting. But investigative reporting carries risks you don’t have to worry about with other types of stories. Consider the definition an early mentor of mine, Joe Bergantino, uses in his trainings: investigative reporting is “making something public that someone would rather keep secret that’s of public importance.”

To break that down a little, you’re revealing something someone doesn’t want revealed. Something that has consequences for a lot of people — which means that “someone” probably is in a position of power. And that means there’s a lot riding on what you publish: it’s not just your subject’s reputation that could suffer but yours too, if your story turns out to be wrong. Even if your story is airtight, you’re likely to be extremely unpopular in certain circles. You might even get sued by subjects with the time and money to drag you through a frivolous lawsuit.

On the positive side — and I believe this is a big positive, which is why I wrote this book — you can change people’s lives for the better with these types of stories. And when you make every effort to nail down the facts, and ensure that you have legal protection, you start recognizing blowback for what it is: a sign that your story uncovered something someone would rather keep secret.

In the coming months I’ll share tips and insights from the book on this blog to help journalists — at least those with no intention of being perky cheerleaders — treat science with the same scrutiny they would any other human enterprise.

The Science Writers’ Investigative Reporting Handbook is available on Amazon. The other two guides in this series — The Science Writers’ Handbook and Michelle Nijhuis’ The Science Writers’ Essay Handbook — are also available on Amazon. All three handbooks were supported by NASW Idea Grants.

(Cross-posted from pitchpublishprosper.com.)