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Underfunding and outsourcing
Underfunding and outsourcing are two major factors driving local government secrecy, according to Spivack. For example, paying somebody to handle public records requests is not necessarily a high priority for local or state governments, especially if they are struggling financially, she said.
To save costs, local governments also frequently outsource public services to private contractors, which might not be willing to share records they are holding.
For example, Spivack said, a person might go to the local government to request to see relevant records about trash collection. If the service has been outsourced, they may be directed to the private company who was contracted with the service.
“For whatever reason the private company may say, ‘We’re not going to give it to you,’” Spivack said.
Political decisions by state or local governments that might benefit from hiding wrongdoings can also reduce transparency. “Florida actually has one of the best public record programs in the country for a state, but it’s getting worse,” Spivack said.
Utilizing public records requests
Journalists have a right to request public records from their local governments. States have their equivalents of the federal Freedom of Information Act (FOIA), which are “basically the same idea” as the landmark act, Spivack said.
“If something is enforced, inspected, licensed or purchased, there is probably a public record,” she stressed.
If a journalist is investigating outsourcing of trash collection to private companies, for instance, they can request to see the contracts, find out who competed for them, how much they are worth, and how many times the private company has failed to do its job — all information that can help determine whether government money is being properly spent, Spivack noted.
Before submitting a request, reporters should zero in on which departments with local or state government might hold the information, Spivack advised. They should ask for records that already exist, not those that will need to be created, such as an analysis of a data set. Officers will likely refuse a request they view as beyond the direct scope of the law, she warned.
Journalists should include relevant personal contact details in their request, and be sure to request a fee waiver in the public interest. They should also make sure the documents they request are searchable, especially if they are in PDF format, as state or local governments may provide unsearchable formats in an obstructionist effort.
State and local governments have different timetables to respond to public records requests, Spivack said. “A lot of states are five to 10 days long. Maryland’s one of the worst in the country. It’s 30 days to respond,” she said.
When requesters receive a decision, they should ensure it contains the following information: whether the record was fully or partially released or withheld in full, name and contact information of the person that made the decision, a reference to the Code provision that is the basis of the decision, and a statement advising the requester of appeal rights.
“That’s where you’ll find out where these exemptions are and then how to appeal,” Spivack said.
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