By Katie Townsend & Adam A. Marshall
Federal, state and local governments possess a wealth of current and historical information that can be of great use to documentary filmmakers. From emails to photos, and even video footage, public records can be valuable source material for documentarians. Moreover, there are generally few or no restrictions on the use of public records. While the process of obtaining such material under state and federal public records laws isn’t always easy, understanding your rights can improve your chances of getting what you need.
Public Records 101
At the most basic level, public records laws—sometimes called sunshine laws or freedom of information laws—create a right to access records created or used by the government that are not specifically exempt from disclosure. The federal government and every state (including the District of Columbia) have a public records law of some kind. While the basic process of obtaining records under these laws is similar, the laws can vary widely in their scope and how they are applied.
Whose Records Can I Request?
The federal Freedom of Information Act (FOIA) and the public records laws of most states only apply to entities within the executive branch, such as the Environmental Protection Agency or local police departments. Judicial records, while often available directly from courts under the common law and First Amendment, are usually not subject to public records laws. Likewise, records of Congress and state legislatures (or individual legislators) are, by and large, not subject to sunshine laws. There are some states that vary from this general rule, however, so you should be sure to look at the specific state law that applies to your request.
What Kinds of Records Can I Ask For?
Most public records laws allow you to request identifiable, existing records stored in a reproducible format. The scope of what qualifies as a "record" is usually quite broad, encompassing both tangible, memorialized information (memos, photographs, videos, etc.) and electronic information (emails, databases, documents, etc.). You cannot, however, ask for physical objects (e.g., evidence collected in a law enforcement investigation). You also cannot make agencies answer questions (e.g., "How often does the mayor talk to the chief of police?"), or require them to create new records (e.g., "Please write a statement regarding your policy on X.").
Even if a record can be properly requested under a freedom of information law, it may be withheld by the government if it falls within the scope of an exemption. The types and scope of exemptions vary widely from jurisdiction to jurisdiction, though there are some common ones. For example, records (or portions thereof) may be withheld if they would unreasonably violate someone's privacy, interfere with a law enforcement investigation, or expose a company's trade secrets. Information about the types and scope of exemptions that apply in different jurisdictions can be found in the resources listed below.
Drafting Your Request: Describing What You’re After
The first step in obtaining public records is to make a request. Your request should be in writing and (1) include your name and contact information; (2) state that it is a request under FOIA or the applicable state public records law to the recipient government entity; (3) describe the record(s) being sought; (4) identify the format you'd like to receive the records in; and (5) request a fee waiver or reduction in fees, if applicable.
Before firing off a request, it's a good idea to think about what you hope to get out of it, and to consider how the request fits in to your project's timeline. One type of request—a "targeted" request—asks for something specific that you already know exists. For example, you might request a particular photograph or document that you plan to use in your film. Alternatively, you might want to submit an "exploratory" request that asks for records about a particular subject in the hopes of finding something that could open up a new avenue to investigate.
The type and breadth of your request can affect how long it takes the government to respond. Even though FOIA and most state public records laws have deadlines by which the government is supposed to respond, they are frequently missed. FOIA requests are required by law to be answered within 20 business days, but it is not uncommon for more complex requests to take months or years. While state and local entities are frequently faster, regardless of the jurisdiction, a narrower request for specific records will usually be answered more quickly.
No matter what kind of request you submit, be as specific as possible when you're describing what you want. Including information such as titles of documents, date ranges, keywords, authors or recipients, can be helpful. For example, the description in a hypothetical "targeted" request could be: "The memorandum titled [X], from J. Edgar Hoover to the FBI's Deputy Director, dated April 13, 1937." A more "explanatory" request could take the form of the following: "All emails from the Mayor to [Person Y] that were sent between June 1, 2015 and July 30, 2015." Avoid using language like "all records related to," which does not provide as much direction for agencies and can result in lengthy delays in the processing of your request.
Fees (and How to Avoid Them)
There are several types of fees that agencies can charge for responding to a request, depending on the jurisdiction. They include fees for searching for, reviewing and duplicating records. Keep in mind that asking for records in an electronic format (e.g., email or CD/DVD) can reduce or even eliminate duplication costs.
Under the federal FOIA, "representatives of the news media" (which includes documentary filmmakers) are only required to pay duplication fees after the first 100 pages of responsive records. In order to receive this benefit, however, you'll need to include in your request a brief explanation as to how the information you're seeking is of "potential interest to a segment of the public," how you will use your "editorial skills to turn the raw materials into a distinct work" and how your work will be distributed to an audience.
FOIA also has a provision that requires agencies to waive all fees if the requester is primarily engaged in disseminating information and disclosure of the records would significantly contribute to public understanding of government activities. To request a fee waiver under FOIA, you'll want to include in your request a paragraph or two that explains why your request satisfies these requirements. Note that your explanation must show how the records would shed light on government activity, not the activities of private individuals.
State public records laws differ dramatically with respect to fees. Many jurisdictions have fee reduction or fee waiver provisions like FOIA, but those that do not can make some requests prohibitively expensive. If you are making a request under a state public records law, look to that law to see what fees provisions apply before submitting your request.
Whether or not you're requesting a fee reduction or a fee waiver, it's a good idea to state in your request the maximum amount of fees you're willing to pay, and to ask the agency to contact you before proceeding if they estimate that fees will exceed that amount.
Sending in Your Request and Following Up
Government agencies vary widely when it comes to how they accept records requests. Some you can simply email, while others rely on faxes, online portals or even mail. Some smaller entities may have a specific form for you to use, which can usually be found on their website. Keep a copy of everything you send, as you may need it to follow up in the future.
After a request is submitted, set up some sort of tracking system to record significant dates and communications regarding your request. You can use a spreadsheet or an online system like ifoia.org, a free resource provided by the Reporters Committee for Freedom of the Press. You should also calendar the date the agency is required to respond to you.
If you don't hear anything within the time period set out in the law, contact the agency to see what's going on. Be polite and friendly, and see if they need any clarification or additional information from you. If you correspond by email, save copies and add them to your tracking system. If you call the agency to follow up, take detailed notes on what was discussed while the conversation is fresh in your mind.
What Happens if I'm Denied? Self-help and When to Seek Legal Assistance
At some point the agency will make a substantive response to your request, which will take one of four forms: (1) all requested records are released; (2) some of the requested records are released and others are withheld as exempt; (3) no records are released because they are all exempt; or (4) no records are released because none could be located. You should bear in mind that just because the government states that something is exempt or doesn't exist does not necessarily make it so; it is not uncommon for an agency to misapply an exemption or fail to take appropriate steps to locate responsive records.
If you receive less than everything you asked for and think the agency made a mistake in withholding records or failing to locate them, there are avenues of recourse available. Under the federal FOIA (and some state laws), there is an administrative appeal process through which higher-level employees at the agency will review your request again, and reconsider the agency's denial. Administrative appeals provide you the opportunity to make legal and policy arguments about why the records you requested should be released. While these appeals are necessarily legalistic in nature, journalists can and frequently do submit them without the assistance of a lawyer. Helpful resources, including sample administrative appeals, are available at the websites identified below.
Many states and the federal government also have an ombudsperson's office—a separate, neutral government entity that reviews public records requests and denials. For example, in response to a denied federal FOIA request, you can both file an administrative appeal and seek the assistance of the Office of Government Information Services (OGIS), which provides mediation services. The power and effectiveness of these entities varies. While some can compel the release of records denied by an agency, others are limited to making nonbinding recommendations.
If your administrative appeal and/or other attempts at informal dispute resolution fail, you can file a lawsuit to have a court review the propriety of the agency's actions. While it is possible to litigate a lawsuit on your own (pro se), you may wish to contact an attorney licensed in your jurisdiction to provide you with representation.
Even if the public records process can occasionally be challenging, it is also incredibly rewarding. Governments can be a treasure trove of material for documentary filmmakers that should not be overlooked, and a little bit of planning and research will go a long way in making your project a success.
Resources
• General guide to the federal FOIA: the FOIA Wiki (foia.wiki)
• Description of federal records systems: FOIA Mapper (https://foiamapper.com/)
• State public records guides: RCFP Open Government Guide (http://www.rcfp.org/open-government-guide)
• International public records laws: freedominfo.org (http://freedominfo.org/)
• Online public record request/tracker systems: iFOIA (https://www.ifoia.org/) and MuckRock (https://www.muckrock.com/)
• RCFP Hotline: 1-800-336-4243 or hotline -at- rcfp.org
Katie Townsend is the Litigation Director and Adam A. Marshall is the Knight Foundation Litigation Attorney at The Reporters Committee for Freedom of the Press.