David Cuillier: The Freedom of Information Act becomes more restricted

  Spotlight on Research  

Freedom of Information Act: exploring issues, solutions

Four Questions with David Cuillier

David Cuillier, Associate Professor, University of Arizona

One of a regular series of articles that highlights research in the academy and the profession on the emerging threat of news deserts or changes in media ownership.

Can reporters adequately inform citizens about important policy issues or major news events if they cannot get access to public documents?  A new report released this week examines the state of the freedom and accessibility of information in the United States. The 50-year-old Freedom of Information Act (FOIA), which gives the public – and journalists – the right to request access to most government documents, is being weakened, particularly at local levels.  This investigation explores the consequences and solutions.

Through surveys and interviews with hundreds of journalists, lawyers, activists and government officials, author David Cuillier sought to identify major issues, as well as solutions. He found that a significant portion of journalists and experts report that getting access to government information has gotten much more difficult in recent years and will continue to get worse under the next presidential administration.

Cuillier is Director and Associate Professor of the University of Arizona’s School of Journalism. Before earning his doctorate from Washington State University in 2006, Cuillier covered government as a reporter and editor at newspapers in the Pacific Northwest. He has been active nationally in Freedom of Information (FOI) issues, including as president of the Society of Professional Journalists during 2013-14. He has testified before Congress about FOI issues and is co-author of “The Art of Access: Strategies for Acquiring Public Records.”

His report is supported by a grant from the Knight Foundation.  It is being released this week, which marks the tenth anniversary of national Sunshine Week, sponsored by a variety of journalistic and legal organizations as a way to remind the public of the importance of FOIA.

Results of the study can be found by clicking here.

How did you become interested in this topic and research?

Like many journalists, I was torqued when told by government agencies that I could not have records that the public should see. I saw firsthand how critical it is for journalists to reveal important issues through government records.  Over the past 30 years, I have witnessed how increased secrecy and constricted newsroom resources have made getting access to government documents more difficult for journalists. This is a troubling trend and the actions of the new administration have made this report even more timely at all levels of government. We need solid research to identify key issues and potential solutions. I do not think it is too hyperbolic to say democracy depends on it.

What is some of the major research that preceded and contributed to your report?

I have enjoyed trying to figure out how people think about freedom of information and secrecy. Some previous studies have found that those most supportive of FOI tend to be skeptical, civically engaged, online news users, who are well educated. I also reviewed the history of the FOI Act and results of other recent research, trying to find ways of improving access to records.  For example, one experiment found that legalistic, threatening request letters are actually more effective than neutral or friendly letters.  There is so much more research that needs to be done on the topic and so little time

What did you learn?

In this particular study, I focused on a convenience sample of FOI experts, including a cross section of journalists, advocates, lawyers, government, civil society groups and others active and knowledgeable about FOI. I surveyed 228 people online and interviewed an additional 108 people, primarily by phone, during December 2016 and January 2017. I found out that a significant proportion of journalists and experts say access to government information has gotten worse during the past four years.  Nine out of 10 predicted, access would get even worse the next four years, primarily because of the Trump administration’s attitude toward the press and disclosure of government information.  But it was also apparent that there has been a gradual tapering of interest in aggressively pursuing FOIA requests over the last dozen or so years, resulting from government secrecy in the post-9/11 era and strained government and newsroom budgets since the recession.  The top complaints from newsrooms and other FOI-connected groups and individuals included delays in receiving documents from government agencies, excessive redaction of material from the documents, requests that were ignored, and search and redaction fees and charges.

I collected hundreds of suggestions for improving FOI. The major big-hit ideas included:

  • requiring attorney-fee provisions in state laws so attorneys will have incentives to go to bat for small news organizations,
  • more litigation assistance for small organizations,
  • training for custodians and journalists,
  • increased public advocacy and education,
  • better coordination among FOI/journalism groups, and
  • more digital tools that make documents easily accessible and searchable.

I learned something from every person I talked to, making it difficult to boil it down into a succinct report for funders and organizations to act upon.

What are some of the major implications of your research? What are you focusing on next?

We have seen times like these through history when threats to the First Amendment cause journalists to push back and sometimes advance press freedom, such as the backlash to Cold War secrecy that led to passage of FOIA in 1966. We are at one of those times, potentially, when we could have Watergate times 10, leading to an infusion of funding and passion in fighting for FOI and community journalism. I could see several activities emerging in the next six months:

  • Redoubling of efforts to bolster state coalitions for open government, including better coordination of litigation centers to help community journalists.
  • Creation of a research consortium of FOI scholars to team up on pressing topics and questions that need answering.
  • More structured partnerships between journalism groups in litigation and advocacy, such as making Sunshine Week into a year-round effort to educate the public.
  • Creation of more university law clinics to assist freelancers, citizens, and community journalists.
  • Expanded online tools for requesters, such as additional partnerships with MuckRock.

All of this could bode well for community journalists and the public’s right to know. If the Trump administration goes too far, as John Adams and Abraham Lincoln did with the jailing of critical journalists, then perhaps even more backlash would lead to additional improvements in FOI. At that point journalists might push for a “right to know” to be part of the U.S. Constitution, as it is in many other nations and even some state constitutions.

This summer I would like to map out the FOI community using social network analysis tools. We need to understand more about how the access-structure currently works and how it could work better. Stay tuned and buckle up. It’s going to be a bumpy ride!