No longer able to baffle the press with talk of bytes and bits, bureaucrats are now using access laws to play the old shell game with reporters requesting electronic records.
How far will they go?
When Philadelphia Inquirer systems editor Al Hasbrouck wanted four years of criminal court dockets from the city, he had to fight for them. Then he had to fight for a copy of the codes for the more than 17,000 lawyers in the Philadelphia area, which he got in the form of a six-inch thick printout. Then he had to continue fighting for the codes on ninetrack magnetic computer tape, the way he had originally requested the records.
Boston Herald staff writer Dave Armstrong was familiar with the old-fashioned method of record redaction: the black pen marks that eliminated the parts of a paper record a journalist was not allowed to see. But Armstrong was not prepared for the new redaction "logic" that would prevent him from seeing any part of a computer tape, even the fields that hadn't been redacted.
Journalists are not alone in recognizing the potential of computer-assisted reporting. Government bureaucrats with whom reporters must deal to get tapes also see what journalists can do with personal computers and are learning new ways to deny or delay access to electronic records.
Sometimes the resistance comes in an unsophisticated bluff, in which the reporter is told the records are not public, in the hope he or she will simply go away. But new strategies, some depending on various state access laws, can keep reporters busy just trying to get tapes.
"They've gotten real creative," Hasbrouck says. "Public servants understand what we can do to embarrass them through computer records."
Pennsylvania law is unclear on how public records are to be provided, and Hasbrouck says bureaucrats have stalled him in several ways. One time, an agency gave him a record layout in COBOL code, which Hasbrouck is unfamiliar with, so he needed to get a translator.
In the case of the court dockets, Hasbrouck had to go through endless negotiations. After he "finally wrung it from the hands of the good civil servants," he spent several weeks to get the codes he needed to understand the dockets.
Even in states where the requestee cannot determine what form public records are released in, reporters can still get the runaround. In Massachusetts, where the law says bureaucrats must give records in the forms requested if possible, interpretation makes the difference.
"There's one trick in particular we have a problem with," Armstrong says describing the redaction ploy. Another part of the Massachusetts law says that bureaucrats do not have to create records for reporters, just turn over what they already have. Certain Massachusetts agencies have decided that redaction in computer records creates new records, because of the programing required to provide records with certain fields deleted. So, the agencies say, the reporter cannot see the original records, because of the confidential fields. However, the reporter also has no right to see the records without the confidential fields because the "new" records aren't covered under state law.
"It's interesting, and at the same time it's bothersome," Armstrong says. The Herald does have a court case pending that will address this interpretation. Armstrong says he's optimistic about winning, though it may be the start of a long legal battle.
Jerry Uhrhammer, a reporter with the Tacoma (Wash.) Morning News Tribune, is skeptical of a new state public access law. Under the law, which went into effect earlier this year, Washington agencies have five days to respond to requests. The previous law mandated a non-specific "promptly."
Before, when he could insist on a prompt response, Uhrhammer says he often got answers within 24 hours of his requests. Now, with the new law in effect, Uhrhammer says the five-day rule may actually slow his requests down. He is finding that bureaucrats often wait until the last possible day to start working on a request.
"[The] most common stall is the delay, the foot dragging," Uhrhammer says. For him, the new law may give more excuses for foot-dragging officials.
Texas access laws were good, until electronic records became predominant. The state can determine the form the records will be provided in. Allen Pusey, assistant projects editor for the Dallas Morning News, says that many times, the paper receives huge printouts of records.
"I think that's been done specifically to make it harder," Pusey says. The Morning News uses data entry to create a database if it receives paper records. "Until we fix the law, it's the only thing we can do."
Cost is another factor that agencies can use to keep reporters at bay. Hasbrouck, at Bucks County, Pa., found that agencies charged six cents per record, which is good for lawyers who want specific records but costly for reporters interested in spotting trends. Hasbrouck notes that it doesn't cost any more to store six or 6,000 records.
In Washington, Uhrhammer has also found cost to be a problem. One agency offered to provide tapes, but wanted to charge $40 per hour of programming, and said the duplication will take 40 hours. Uhrhammer says this is "outrageous and it's not legal." Under Washington law, agencies can only charge the cost of reproduction, and Uhrhammer says both the price and time estimates are way too high. The matter has not been resolved yet.
But regardless of new strategies, the favorite bureaucratic tactic remains the bluff. These battles are often easily won in court, but can be costly and time-consuming. Letters are exchanged by various attorneys, and if the requestor consulted the access laws before making the request, the bureaucrats will give in.
"A lot of times it's like taking a sledgehammer and banging them over the head," says Armstrong.
Pusey has his own strategy for waking up the civil servants. The Morning News has a well-known policy of pursuing legal fees as well as access. "That I think gets their attention." While Pusey concedes that some bureaucrats are getting more sophisticated about computer-assisted reporting, many will rely on the bluff because they don't know the access laws and don't care.