This week, the Poynter Institute is publishing installments from “Shut Out: Strategies for good journalism when sources dismiss the press,” our report from a symposium by the Craig Newmark Center for Ethics and Leadership about the growing trend of sources bypassing independent reporting.
You can read the full PDF of the report here, or return each day for a new topic of discussion.
On March 16, 2020, the first Chicagoan died from COVID-19.
Using information from the daily Cook County medical examiner’s report, newsrooms identified the victim, a 61-year-old retired nurse. WBEZ published a story about her life and the impact of her death.
“Days later, Cook County stopped providing the report,” said Tracy Brown, chief content officer at Chicago Public Media, which includes WBEZ and the Chicago Sun-Times.
By April 1, at least 141 people in the state had died, and at least 7,000 people had been infected. After much back and forth with the county seeking the records, Brown told them WBEZ planned to sue.
“After weeks of blocking the report, the county relented and released the data quietly on (a) Friday evening,” Brown said. “We worked through the night and next day to analyze the data and produced what became the first story in the country about who was dying. We showed that 70% of COVID-19 deaths in Chicago were Black people. We thought it and suspected it, but we didn’t have proof until they gave the data to us.
“Shortly after our story, the mayor’s office announced health initiatives targeting Black populations and low-income populations,” Brown said.
Some sources deny or delay access to records as required by law because they are trying to control the narrative. Another reason, according to Stern from the Freedom of the Press Foundation, is that FOIA offices are understaffed and undertrained.
In 2022, the federal government received more than 928,000 FOIA requests — a record high and 90,000 more than in 2021. The number of backlogged requests also soared over the previous year, to nearly 207,000, according to the most recent Office of Information Policy report from the Justice Department.
The delays are happening at the local level, too. In Louisville, Kentucky, for example, open records requests more than doubled in six months, from 955 unfilled requests in May 2023 to more than 2,000 in December 2023. The mayor blamed staff shortages.
Beyond never-ending backlogs, Stern said he observes regular abuses of open records laws, including government agencies’ baseless assertions of exemptions and exorbitant charges for compliance.
“We’re seeing more and more where people get a response to a records request that says something like, ‘The research time it’s going to take us to comply with that request, we’re going to have to charge you $40,000,’” said Stern.
Recommendation: Tell your audience details about records denials
Stern’s No. 1 recommendation for dealing with access issues, including public records denials, is to write about it.
This could be explicit, like the “What Are They Hiding?” series from the Las Vegas Review-Journal, the “Revealing Records” column from The Washington Post’s first FOIA director, or even this follow-up story from the team in Louisville affected by record denials.
Be specific and add context, he said: Specify how many times a request for information was made, how much money the news organization had to pay, and whether there is a precedent for this kind of request.
“Stories about the newsgathering process are oftentimes separated from the actual news report. Oftentimes, it’s an editorial about the obstacles that journalists are facing in getting the news,” said Stern. “And some people do read those editorials or those separate reports and do react to them. But the way news is consumed and spread around these days, you can’t just assume that somebody who read the news report is also reading the editorial.”
Better connecting the how-we-got-the-story column to the actual work it references has implications for both digital and print design. And reporters should include more of these details in the story itself.
Recommendation: Consider legal action
News organizations have sued to gain access to public records for years — and it still works.
“We get denied records all the time,” said Brown, the leader of Chicago Public Media. “We do have a lawyer who specializes in FOIAs. He mostly only takes cases that he believes he can win, which means he doesn’t have to charge us. If we get stuck, we’ll do that.”
Letting sources know you’re considering legal action might be enough to wriggle the records free.
Stern agreed calling a lawyer for a consultation, at minimum, is beneficial to weigh options. Sometimes, setting a bad legal precedent for future journalists is a concern with a particular case. Even so, beginning the process could persuade sources to reconsider, and cases can be dropped before getting to a point where precedent can be altered.
He also recommended that reporters get familiar with resources like the Reporter’s Committee for Freedom of the Press’ legal hotline, the Society of Professional Journalists’ legal defense fund, and similar resources that may be available through local organizations.
Actually suing for records can pay off, literally, and put public pressure on government agencies to rethink denials and delays, according to a WBUR report from September 2023 about local governments in Massachusetts. For example, the city of Worcester paid the Worcester Telegram & Gazette $180,000 for illegally withholding records.
Forming consortiums with other media outlets to split the costs of suing for records is another tried and true tactic that can help get around these challenges.
This report was edited by Neil Brown and Jennifer Orsi.
Coming Wednesday: Barred and blocked: When physical barriers get in the way
