And your total is $300,000 - will that be cash or charge? That's what the AP's Special Assignment team heard when it requested the Immigration and Naturalization Services database on non-immigrant status, a system that tracks foreigners who enter the country for business or pleasure.
"This is a completely bogus denial," says Drew Sullivan, national news data editor for the AP. "I have been fighting this for two years, first at NICAR and now here."
Sullivan's experience mirrors that of many reporters seeking to obtain electronic records, says Rebecca Daugherty, director of the Freedom of Information Act Service Center at The Reporters Committee for Freedom of the Press in Arlington, Va.
"A large number of (our) calls deal with fee provisions for electronic data," Daugherty says.
The AP's case is doubly complicated. In its wranglings with the INS, a privacy issue arose. The AP agreed to the redaction of the questionable field from the database; however, the INS said the redaction constituted the creation of a new database - which is not required under federal law.
"We have seen agencies give the line that they don't have to create a record. In some cases, it involves only pushing a couple of buttons, but this is not a reasonable explanation," Daugherty says. She also says the EFOIA seems clear: Redacting a field does not equate to the creation of a new record.
Battle for state records
The EFOIA, effective in the coming year, will help reporters get public records, Daugherty says. However, federal bills such as the Boxer Bill may limit access to Department of Motor Vehicle records, requiring states to allow residents to "opt-out" having their driving records open to public scrutiny. This will exacerbate what is already the most difficult battle for reporters: accessing state records.
Leslie Reis, an attorney for the Reporters Committee, says there is little precedent or case law in many states, and records access laws vary widely when you cross a state line.
Residency rule
That's what Geoff Davidian found when he sought to start a small investigative newspaper in Tennessee. Davidian tried to get some records through the state and was denied. The attorney general said that Tennessee law provides access to public records for state residents only. Since Davidian had just moved to Tennessee and was not yet a declared resident, he couldn't access the information. He got the information through his son who is a resident, but not without a fight.
Davidian has filed a federal suit claiming that the state is violating his right to privileges and immunities granted by the Constitution.
Reis says there is not much a reporter can do in such a situation.
"Many papers have argued that since they represent a considerable public interest in the state, they should be allowed to get information, but this approach hasn't been particularly successful," Reis says. "We have seen an increasing number of cases where residency is being used to deny access to records."
Some cases are not a question of fees or residency. When a male nurse was fingered in the suspicious death of 165 patients at Vermillion County Hospital, the Indianapolis Tribune-Star began to request death certificates from the state. They discovered that many records were kept at the county level and were open. They also found that some counties opt to forward death certificates to the state. But at the state level, the same records are no longer considered open, says Tribune-Star City Editor Jim Lewers. The Star-Tribune sued.
Thousands of dollars later, the state settled out of court and the paper got the records.
Lewers says it is important to pursue these matters legally. "These are complex suits that are breaking new ground in the state and establishing some precedent," he says.
The Reporters Committee agrees and offers some recourse for reporters.
"We will give advice on cases where reporters have made requests for public records and have been denied," says Daugherty.
John Sullivan can be reached at (573) 882-0684, or send e-mail to john@nicar.org