 Shall we get started Stephanie? Yes, I think we should. Okay, great. Hello, I'm Denise Dunbar, publisher and executive editor of the Alexandria Times newspaper and a board member of the DC Pro Chapter of the Society of Professional Journalists. I'll be your moderator for today's discussion on freedom of information in Virginia. I'm joined today by a terrific panel of journalists that includes lawyers, a former SPJ national chairman and investigative reporters. If democracy dies in darkness as the Washington Post motto states, then it's the role of journalists and the purpose of journalism to shine lights in the corners that many in power would prefer stay shrouded in shadow. It's also the role of journalists to present often complex information about topics that greatly impact the lives of ordinary residents, and in so doing help them make informed decisions as they vote and engage in their communities. Journalists can only present information that they can access. The Federal Freedom of Information Act was passed by Congress and signed into law by then President Lyndon B Johnson in 1966, and took effect the next year. The Virginia Freedom of Information Act was passed by the General Assembly in 1968. Both the federal and state law have been updated numerous times in the past 50 years. The topics that we will discuss during the next 90 minutes fall into three basic categories. The process of FOIA best practices for effectively obtaining and using FOIA, and how FOIA relates to other types of government transparency. I want to introduce each panel member as I asked them their initial question. We'll start first with Paul Fletcher, who is publisher and editor in chief of Virginia's Lawyers Weekly. Paul is also former national president of the Society of Professional Journalists. He received his law degree from Washington and Lee University, and also holds degrees from the College of William and Mary and Emory University. He won numerous state and national journalism awards, including honors for editorial column and feature writing. He is an adjunct journalism instructor at the Robertson School of Media and Culture at Virginia Commonwealth University. So Paul, as a legal expert, can you please take us through the basic provisions of the Federal Freedom of Information Act and briefly explain key ways in which Virginia's freedom of information law differs. Sure. Thanks, Denise. It's a real pleasure to be here today. I think this is a great program. I'm really pleased to see SBJVA and SBJDC coming together to put on a program such as this one. And the question you raise is a good way to set the table for today. And so I'm going to be somewhat broad in my discussion of the two acts because they are quite different. And the interesting thing that some of you may know, some of you may not, is that the Federal Freedom of Information Act was the work of SBJ. It actually was back when it was known as Sigma Delta Chi, later became known as a society professional journalist. Leaders from Sigma Delta Chi were the ones who pushed and pushed and pushed to get a freedom of information act to bill through Congress. Based on the basic notion that the government should be open to the people and that the citizens of this nation should be able to know what their government is up to. The leaders of SDX tried in the early 60s, tried again. Lyndon Johnson hated the idea, and he hated it when it was ultimately passed in 1966. There were some questions about whether he was going to sign it or not. But he ultimately did, you know, where he liked to have these grand programs with flourishes and he'd sign, you know, use 86 different pens to sign a piece of legislation. It probably was done kind of on the side in the back room. But he did sign it. And it did become law. As you noted in 1967. The leaders of SDX said, okay, time to fan out. And so they went through many other many state legislatures seeking to get state freedom of information laws passed. In Virginia, it was relatively quickly. It was two years later, 1968, when it was passed. The bills or the laws as they exist have changed quite a bit over time. Most of the time it's finding ways to not comply with the FOI laws on either a federal or a state level. The Federal Freedom of Information Act provides you access to agency records. And that's really about it in terms of, you know, that's not understating that but that is where it is aimed you have the ability as a journalist but as a citizen, because it's important to note that the freedom of information laws in both the federal and state level are usable by any citizen. You don't have to be a journalist writing a story to justify it. You as a, a Virginia as an American are entitled to those records. The federal FOIA has nine major exemptions that have to do some personnel some with personal information. The exemption five is the one that you'll read a whole lot about and it's used pretty widely that has to do with opinions conclusions and recommendations in inter and intra agency memos. And so you'll find government actors trying to use that one in particular. The three exclusions have to do with national security or criminal law matters. But other than that there's there's laid out in the law a whole procedure where you can make an FOI request. You can go online and find quite a few forms, any number of places that would be very helpful and to help you make the, the request. Now the Virginia FOI passed again in 68. The preamble, you know the way that they put out the past laws they'll say they usually say something like this bill. This measure will be known as the Virginia freedom of information act and then it provides a preamble that more or less gives you the rationale for the fact that the General Assembly are represented representatives in Richmond are passing it. This one says by enacting this chapter the General Assembly ensures the people of the Commonwealth, ready access to public records in the custody of a public body, or its officers and employees, and free entry to meetings of public bodies, or in the business of the people is being conducted. So let's pause a minute that gives you two things right off the bat, you have access to public records in the custody of a public body, and it's officers employees that's more than an agency. And then the second part is not to be found in the federal FOIA, you get free entry to meetings free mean they're not going to charge you anything to meetings of public bodies, we're in the business of the people is being conducted. The affairs of government are not intended to be conducted in an atmosphere of secrecy, since at all times the public is to be the beneficiary of any action taken at any level of government. And then less public body or its officers or employees specifically elect to exercise an exemption provided by this chapter or another statute. There's the rub. Every meeting shall be open to the public, and all public records shall be available for inspection and copying upon request. All public records and meeting shall be presumed open, unless an exemption is properly invoked. And as the others on this panel on no no no doubt get into. There are really quite a few exemptions that have been passed, many of which apply to specific factual patterns or specific groups. But in a nutshell, Denise there you have it. That's the the difference between federal FOIA and state FOIA they have a lot of the same purpose that they do operate a little bit differently. Thank you Paul just one quick follow up to that it isn't another difference that the federal government cannot charge media organizations but the state of Virginia and localities can. Yes. Okay. I'm sorry they can charge. They just have the authority to wave. And who do you mean by they in the federal in the federal law. Okay, interesting. Okay, and we'll get back to that in a minute. Let's go on to the next. First, Jeff south is president of the society of professional journalists Virginia pro chapter. He worked more than 20 years as a reporter and editor at newspapers in Virginia, Texas and Arizona, then taught journalism for more than 20 years at Virginia Commonwealth University. As a full bright scholar and newsroom trainer. He has worked with journalism students and practitioners in Asia, Eastern Europe and Latin America, and across the United States. Yeah. Nice. Um, so a question I would like to pose to you as a follow up to Paul is, can you explain what constitutes a FOIA request is there a specific form. And can you talk about the difference between a FOIA request and just a basic request for information from the Virginia state government or a local government. Okay, thank you. I would be happy to talk about that my guess is Megan and Paul may have more expertise in the area but my understanding and the way I have taught journalists and journalism students about FOIA is that a FOIA request is any request for information it can be over the it does not have to be a formal written request. When you ask a government official for something that constitutes a FOIA request and the law then requires them to respond. Having said that, um, when I was either leading a newsroom in Austin, Texas for example I was a state editor. And overseeing a group of reporters covering the capital and state government and every Monday at our staff meeting, we would file or we would decide what to FOIA that week we kind of just built into our staff meetings you know let's kind of have a FOIA of the week and and those were always formal letters. Nowadays, of course, FOIAs can be filed electronically. So an email constitutes a FOIA request. There are FOIA letter generators. Megan's organization the Virginia coalition for state for open government has a really good one for state level FOIA requests. The first committee for freedom of the press is a national organization, as is another project called muck rock. That both have national level FOIA letter generators, make it very very easy to simply plug in what information you want, who has it, and it then generates a letter that sites the law. And gives you kind of a, I don't know some gravitas in terms of knowledge of the law and knowledge of what's expected of that government official receiving the request. The, I, I've been using a service called I FOIA.org. It's created by the committees, the reporters committee for freedom the press. Why I like about that is that it not only generates the letter and helps you find who to email it to, but also databases for a request. And so, when you, when you file that you create a free account, you file the, your, your FOIA requests, it then keeps track of how many days that agency has to answer your request, and if they haven't answered it then sends you a reminder that they, you know, they've, they've, they're not complying with the law should we send a follow up request. And so, there are a number of really good resources nowadays for helping both prepare your FOIA request and, and get it into the right hands, and then monitor what happens. So, I'll, I'll, I'll kind of stop there. That sounds great. There's one thing that I would mention to follow up a follow up comment to what Jeff had to say. In 2016. Congress passed. Basically, the fixed FOIA bill. There's a large movement of which SPJ was one member there's a coalition called the Sunshine and Government group, it was SPJ RT DNA, the broadcasters group, the AP, a number of major journalism groups and entities, all work together to fix FOIA by 50. And that was to get a number of updates to bring FOIA into the 21st century essentially. And one of the things that was supposed to happen was to create a common portal. And now you have so many different federal agencies that have so many different ways of requiring a requester to make the FOIA request. This was going to make a single portal. It would be easy for citizens and journalists to make a records request. In the past, Obama was about as thrilled to sign it as LBJ had been to sign the original bill did. And then of course the following fall, Mr Trump got elected and I haven't heard a whole lot about fixing FOIA since then. It'll be interesting to see what happens with that moving forward then. Yes, agreed. Moving moving ahead. Our next panelist is Megan Ryan, who is executive director of the Virginia Coalition for Open Government. Megan received her undergraduate degree from the University of North Carolina and holds a law degree from the University of Colorado in law school. She teaches classes on FOIA and the legislative process at Osher Lifelong Learning Institute at the College of William and Mary. Megan has been executive director of the Virginia Coalition for Open Government for the past 12 years. Welcome Megan. If you could explain a bit about the Virginia Coalition for Open Government's mission and how reporters and individuals pursuing public records can use your organization as a resource. Well, thank you Denise. Thank you so much for including me on this panel. Thank you to the people that I know and the respect and like and the Virginia Coalition for Open Government is fortunate to have on its board of directors, two of these panelists here, Paul and Jeff are both on on our board. I'm the sole employee but I wouldn't be able to do it if I didn't have very helpful and influential board members to direct me. The coalition started in 1996. It was funded primarily by the Press Association, Virginia Press Association and the Virginia Association of Broadcasters, as well as individual media outlets. And the notion was that at the time there was a perception and it lingers. It's probably not as strong now as it used to be, but there was a perception that the Freedom of Information Act was a media law and that why should legislators try to improve it when all it was going to be used for was by nosy journalists to, you know, play gotcha with politicians. And so the coalition was started to be the voice of the public to the two legislatures, as well as to the public so as to let them know that the Freedom of Information Act is a law for everyone. So we day in and day out we while we're a member supported organization. And we provide services for anyone who calls even if you're not a member even if you haven't donated we are always available to take calls and questions. I've jotted down some figures. I've had, you know, just since the beginning of November I've had seven calls which isn't a whole lot, but considering there was an election in the middle of it it's actually kind of a lot. But they've spanned six different localities they've covered local government schools courts police a meeting's question and six records questions so that's just in a week, a little over a week. To date, we've received 408 calls emails tweets slack messages and Facebook questions, roughly half of those are from reporters, and almost half of those have to do with records requests. To date, those services are available to anyone. And it's, and by anyone I and that also includes government because I think the coalition has made it pretty clear that training government employees is as important as training journalists, we all need to be on the same page. And so when I get calls from reporters, oftentimes they're ready to you know ready for a fight or you know they can't do that kind of thing. And it's, it's incumbent on me to say no this is actually you know what they've done here is actually the right way and it stinks and I know I'm. I don't want to get in a position where I'm trying to, you know, find some way to bend the interpretation nor facilitate some sort of adversarial process it's really, and everyone's benefit for us to approach the FOIA process in a non adversarial kind of way, and with a strong foundation of knowledge of understanding of how the law operates. So, in addition to those kinds of questions and stuff we do provide training for general for government employees or for anyone else who asks. We do an annual conference we do some, you know, a couple webinars and other events throughout the year we do Sunshine Week events, do newsletters very active on social media, we also have internships. One in the general assembly because another part of our job is to lobby the general assembly for better, better access laws. We have that internship for a college student during the legislative session, and we have an internship for a rising second year law student during the summer to do research for us. Thank you. In your, your comments about striving for a non adversarial relationship actually is a good segue to our next panelist Jim Macklehatton. Jim is a freelance investigative reporter who previously worked for the Washington Times as a staff investigative reporter. In addition to the Washington Times his work has appeared in US News and World Report, the Washington City paper and the Alexandria Times and other publications. He has won two Virginia Press Association awards for his investigative series on the integration of Alexandria City Schools that ran in the Alexandria Times over the past several years. Jim as an investigative reporter. Can you please share your thoughts on the most effective way to approach FOIA, and also how can the concept of basic civility be your friend in the process. First of all, thank you for having me because Denise, I happen to live in Alexandria and Denise is kind of, I've, I've been on the outside looking in for a couple of years now. I used to be a reporter for many years. Jeff, I used to work at the Beaumont Enterprise. I probably sent you my resume at some point, but I'm, and I've been up in the DC area. I worked as a reporter for many, many years and now I work as a as a private investigator and mostly my work involves working for attorneys who represent whistleblowers and federal employees who are subject to some sort of discrimination and that sort of thing. But I, but I still do stories now and again, and, and I miss it a great, great deal. And before I, before I answered Denise's question, the thought came into my head, which was that being on the outside looking in, I can tell you that that the most powerful thing that the press has is the ability to contact the federal agent and the federal local state agency and email them call them up and say, hey, you know, PIO or whoever you are I found out about X, and you have 48 hours to tell me an answer to my question. I miss that. And because, because I can have access to different databases and, and all kinds of stuff but but but that, but with that comes great responsibility and maybe someday I'll get back to journalism but but anyway, and answer to Denise's question. What today when I went on my phone, I saw a story about the newborn panda bear at the Washington Zoo. And many years ago, I think it was the panda Taishan or one of the pandas that was about to be shipped back to China. I ended up doing a FOIA to the Washington Zoo for all correspondents to and from the Smithsonian to the State Department about mentioning the word panda and it was a good story and they talked about all these sort of back channel attempts to get Obama to mention the panda so we could keep the panda. The point of that is, is that once I sent that FOIA in the FOIA officer who was assigned that case called me back immediately. Excited and happy, because he had been bombarded with boring FOIAs having to do a treaties and all kinds of stuff and he was legitimately excited to be working on this on this FOIA, and he wanted to help me, and, and it turned out to be a good story. But the point of that is, is that FOIA officers are not in many cases different from reporters they're, they're overwork, they're underpaid, they work at offices that don't get enough money and they, and if they do a good job for us, then their bosses are mad at him and vice versa. So, I found a good strategy was always following up my requests with a phone call, asking, you know, not for going any information I want, but, but asking if there's anything I can do in terms of tailoring my request to make their job easier. And I wasn't, you know, I think it is oftentimes too much of an adversarial relationship, and, and just even just just calling up the FOIA officer to introduce yourself and staying in touch and keeping contact over the phone over a couple of weeks. It can do wonders. I mean I had FOIA officers that I knew that became, you know, sources for me that would tell me about incoming FOIAs from competing media organizations by virtue of that. And just by treating them like people, because they are and so that that's sort of that doesn't mean you don't go to court that doesn't mean you don't, you know, go legal if you have to. But, but, but treating folks with, but some, you know, humanity and compassion and empathy, it goes a long way. Anyway, thank you for having me. Thank you. And that is also a segue into Evan Watson, our fifth panelist. It's tough when your name begins with W. I'm sure you've gone last your whole life, Evan. But Evan is an investigative reporter for WVC TV in Norfolk. He joined the 13 News Now team as a reporter in July 2018, and he tells stories throughout Hampton Roads. Evan grew up in Oberlin Park, Kansas and graduated with a journalism degree from the Bob Shiper College of Communication at Texas Christian University. He started his broadcast journalism career as a multimedia journalist at WGXA in Macon, Georgia. And Evan, you've had considerable success these past couple of years, obtaining information via FOIA for your stories for 13 News Now. What are your tips for success with FOIA? Yeah, thanks, Denise. And thank you all for, for having me to talk today. This is really wonderful. Two things first before we do that. I'll echo Jim, I think that the saying is you catch more flies with honey than vinegar, right? And just by being, by being kind or having that open relationship, I've had good luck with that as well. And sometimes pre-COVID, I guess, walking into the office and saying, hey, you know, that name that you see emailed to you all the time, that's actually me. This is my face. This is what I look like. And then they're like, oh, okay, I definitely will respond to you next time I get it or be more aggressive that way, which is great. I can also echo what Megan said earlier. I've called or emailed her a couple of times over the past few years and she's been very helpful. These tips as well. So if anyone is out there doing on the ground reporting, like myself, definitely use that resource and attribute what you can. So to your question, Denise, on success in the past few years, I wanted to kind of talk about it on the, on the ground level or on the daily. You know, the best way to get better at FOIAs is to file FOIAs, in my opinion, just keep doing it and continue. And I've had something where about every Friday, I make sure I send some kind of FOIA out to keep an Excel spreadsheet where you're aware of the deadlines, because if you're not checking up sometimes, oftentimes those deadlines are blown. So just insert that information about what, what documents you're going to get and be persistent with it. And I've also used FOIA and just open records as essentially an extension of my curiosity in a lot of cases and it doesn't have to. I guess what I want to say is that the reporters I work with at my station and some other stations or other places in the market, a lot of them are seemingly intimidated by FOIA or open records requests that they come to me and say, hey, can you help me phrase this or word this, which I'm always happy to do. But I always view it as something that, you know, you have to, you have to look at excitedly, not intimidatingly, it shouldn't be something you begrudge doing. And even if it's something small, you can find interesting pieces of information with that. And if it's an extension of your curiosity, you can find a lot about it. There was a story last year that I was, I came in in the morning and saw the morning show at a story on a house fire in Portsmouth. And the fire chief was on our interview and he said, you know, we were late to put it out because the fire hydrant right next to the house was broken so we had to go down to the one down the street. And I thought, well, that seems curious to me that a fire hydrant is just out of service like that. Journalist mind, how many fire hydrants are out of service and where are they, because if I was living in the neighborhood or living in that home down the street I'd like to know that information. So just me I sent boy request that next day to all of the main cities and Hampton roads in our area, Portsmouth Norfolk Beach, Chesapeake, Suffolk. And asked for their out of service fire hydrants and reports of service requests and a couple of different things in there and found that Portsmouth had twice as many broken fire hydrants as all the other cities combined. And they were the systemic problem with them. And just from a curiosity point, throwing kind of a dart at a map area able to find a good local journalism piece and then you can find your sources from there about people who've had some house fires and past years and so it wasn't any groundbreaking investigation. It did do really well and made a good impact and they changed their policies from the city government level. I also tell people that, you know, you can FOIA what seems to be small stuff to you at the time, like, like Jim with the with the new animal at the zero whatever that is and then continue finding good information and it builds up from there and your stories will will grow that way so on the ground level that's what I definitely encourage, encourage everyone. Basically, it sounds like what you're both saying is you build FOIA sources just like you build any other type of source as a journalist. Absolutely. Yeah. Okay. All right, so we've talked about sort of the collegial way of approach to FOIA. So, what happens if you you've tried your honey and you, you know, you get in your routine you've cultivated the FOIA officers, but you're still not getting anywhere. Your reporter or a resident's attempts are unsuccessful with FOIA, or the reporter thinks that information has been improperly withheld. Can you talk about the mandamus petition to circuit court and how and when reporters should use this tool. I think you're muted. Are you muted Paul. I am. Sorry. What's what's the zoom line of the year sorry I was on mute. Anyway, I would echo both Jim and Evan that, you know, endorsing the, the collegial approach to getting information because it is so easy to make a request under the Virginia FOIA statute. I know the, you know, the main agency that my newsroom deals with is the Virginia State Bar. And they're very good at providing information and a lot of it is when necessary we've run into this as well is education. You're letting people know that. You know, I am entitled to this this is how the law works. Please let's let's work together on this. And I, you know, if you don't get the information, I would counsel trying that again. Before going to litigation, which is, you know, ramping it up real quick and in a hurry. The. If you have two. Two options under the Virginia statute, you can either seek an injunction or you can get a writ of mandamus, which sounds very, very serious and very legalistic. But it's simply this, you know, I think a lot of people know what an injunction is. That's where you go to court. And you say, judge, I want you to get, I want you to stop this, I want you to make them stop. And if the court so decides they will enjoy, they'll issue an injunction and they have to stop. A writ of mandamus is the opposite. It is judge, I want you to get them to do something. And if you get it granted, the court is saying yes, you must do must do something. The statute provides for a procedure where you can go to court and seek mandamus against an agency against a government against anybody who is subject to the Virginia Freedom of Information Act. The, the upside and the downside is the upside is you've got this procedure. And one of the things I found as I was preparing for today is that like for general request of both the state and federal level you can find forms. The Justice Law Center has a particularly good form pleading to go to general district to go to circuit court there are two different two levels of court that you might go to in Virginia general district court is the lower level court it's kind of the people's court smaller conflicts are brought circuit court is a court of record. That's where you're going to have jury trials and that kind of thing. And you can find forms, there was a fill in the blank form that you can use in general district court because a lot of the the pleadings and by that I mean the papers that you end up filing. Check some boxes or you fill out blanks, and that's your your document in circuit court it's a little more formal. And a little more complicated frankly because you've got to make sure you plead all the right things. The student press law centerpiece covered a lot of the basis and I thought was quite good. It's written for students but I think anybody could use it. The advantages of filing a mandamus. It gives the, the governmental entity, the idea that you're serious. And you might be able to file it, and then use that as kind of a negotiating tactic to say okay look I don't really want to go forward with this, can we talk. This is what I'm seeking. This is what I why I think I'm entitled to it. You'll get their attention, because if they have to spend money. I mean the whole thing about going to court is going to cost money. See they're going to cost the government money and they've got, you know I ran across one pleading that was against the city of Norfolk, the city of Norfolk's got a city attorney's office is full of lawyers. The only thing is their expert on dealing with these kind of things. So you might end up talking to him or her and trying negotiating your way to it or the problem for you as the person seeking the, the records, it costs money, just like it costs the defendant money. So it depends on what kind of news organization, you might work at, if you're a journalist if you've got one of the larger ones that might have one of the, the big law firms on retainer. They might be interested in, you know, writing the necessary letters to move things along. If you're a smaller operation or a freelance person. You're going to have to rely on your own ability to try to sweet talk them because it's going to cost you cash. And that's often why people don't pursue these kinds of requests, but those are your options in terms of what you might be able to do. So there's a follow up to that Megan. I know there's also a mandamus form on your organization's website. As the other lawyer on the panel, would you like to add anything to Paul's comments there. I, yes, one of the things that I'd like to add is the power as well as to emphasize the power of actually filing something in general district court and I know. So citizens are much more likely to use the general district courts, and they have used it many, many times successfully, they've used it unsuccessfully, sometimes because they had bad facts, but not because of anything a judge did. But the point, but, but for some reason, media folks have been reluctant to use general district courts. And they do, especially the bigger organizations, the bigger the news organization, the more they think that if we're going to go into this, we have to do it big, we have to go the circuit court route with an attorney and we have to be prepared to take this all the way to the Supreme Court of Virginia Supreme Court and hundreds of thousands of dollars. But it, it there is symbolic action in filing a report say a reporter filing agent claim in general district court that said, this is what happened, because that that becomes news that becomes the story. It can serve as leverage, because sometimes people as Paul said people don't necessarily think the reporter serious. Because general district court is non binding, I mean, if that turns into something more it could go into circuit court and I guess that does have to be taken into the calculus as well but it's not an automatic appeal they would have to start the case. If you won, and the government lost the government would have to initiate the case which I don't think they can. So I guess, you know, it's easy for me to say hey you guys should sue you guys should file for in general district court. But I wouldn't underestimate the power, the power of that as an arrow in your, your quiver essentially that, you know, you've got that power so maybe you should use it. So as a follow up question I've got, I'm going to direct the next one back to you Megan and then we have actually a few people from the audience who are asking related kind of questions so I think we should stay on this general topic of non compliance because a lot of people who are tuned in here today are frustrated if for various reasons with their attempts to FOIA so one key way Megan in which Virginia State government as well as local jurisdictions withhold information is by claiming exemptions that that Paul mentioned earlier. How can reporters and individuals push back if they think exemptions are being improperly used to suppress information. So guess court. But a couple of things to remember. For one, attempts to suppress is different from the proper exercise of an exemption. If the law allows for an exemption or prohibits disclosure. I think this kind of gets to Jim's point of these are these are just people. These are people applying the law. And how far, you know, and the question then would be, have they applied this. They applied this exemption in a way that comports with the policy statement that Paul quoted at the beginning that says that exemptions are to be narrowly construed in favor of access so you're going to be asking. That's the question you're going to be asking is, is this a proper invocation of this particular exemption. The reason why I'm making this distinction is because the notion that they are suppressing information does automatically put a gloss on it that you that says that they are acting in bad faith. And they may not be acting in bad faith they're just applying this. This exemption in the way that they interpret the law. Maybe that's splitting hairs but I do think it's it's part of the adverse, you know, trying to ratchet it down to a non adversarial kind of process. But should you be confronted with the use of an exemption that you think is improperly being applied. I think it has throughout the throughout it many provisions that encourage requesters and government to work together to arrive at a mutually beneficial solution. So sometimes that might include you talking with them to kind of figure out well if I can't get this, you know, what can I get. And I get answers. These are the questions that I have and how do I get the information that I need to answer these questions. The exemptions do exist. It's also as Paul mentioned at the beginning as well it's there are a lot of them, but a lot of them are agency specific. The number can be misleading because it looks like a whole lot, but really there are only there's a fairly narrow number of exemptions that any agency could use. So Florida gets gets gets put up as being, you know, one of the best, if not the best states for for access, but they have 1000 plus exemptions, they're very, very narrow but they have, you know, they are there are a lot of them but they're. So, you know, rather than get hung up on the number of exemptions. Let's see how they're being applied. And find so you, in addition to court, and I mean in addition to talking on one end in addition to court on the other is using your other resources as a reporter and I have to say I'm not a reporter so I don't. I never have been so I can't really advise on how you exactly do that, but I do know that men that oftentimes the records you have that you look are looking for are held by multiple parties, and not all of those parties are going to interpret the law in the same way, and some of them can't interpret it in the same way. And I'm going to give two examples here. One was when Tim Cain was governor, and he was also his last year, head of the Democrat National Committee. And Republicans wanted to know that when he traveled out of state was he traveling for Virginia business, or was he traveling for DNC business. And so they spoiled his, his travel schedule, and he, he used the working papers exemption which you know there was some, you know, there was some precedent for using it in that way. But so then the AP got ahold of it and AP said well you know what when he travels he has to have a security detail. So they went to the Virginia State Police and asked for records related to the security that they had provided came during, you know, the month certain and they were able through, you know, just some, you know, cross referencing and using other sources they were able to figure out where he was going when he was going out of out of state and make drawing some conclusions. The second example comes from Newport News, former Newport News delegate Phil Hamilton, Republicans, so I want to make sure I'm, you know, got a Democrat who did it and the Republican who did it. He was being Democrats got wind that he was helping Old Dominion University secure money for the creation of a teaching center at ODU and he was on the Appropriations Committee at the General Assembly, and he was also lobbying to become the director of the center once it was created. And so they asked for his email and he again properly invoked the working papers exemption. But then again the AP said well you know the people in at Old Dominion, they don't have the working papers exemption so they asked ODU for those emails and they had to turn them over. So there are you know with all apologies to the cat you've got you've seen walking around here there are multiple ways to skin the cat. When you are trying to get hold of records is that sometimes you just have to think of who else might have them and how you might get them from those people. All right, and I think your response Megan is is actually a good segue to one of our questions from the audience so that's a little bit easier to do when you're at the federal level or the state level when you have multiple entities, but when you're dealing with the local city government and basically everything goes in through the, the one PIO or the one FOIA office, or there are perhaps two sometimes there's one is in our city in Alexandria, there's one for the overall city government and then the other one has their own FOIA officer. So this question comes from an Alexandria resident who says, What legal recourse do citizens have when a locality increasingly redacts a large amount of information, claiming attorney client privilege, when it would not be attorney advice would be a part of the information in the request. When so much is redacted how can the citizen know whether this is legitimate or an abuse of the ability to redact. And I think it might be interesting if the two reporters kind of on the ground, Evan and Jim respond to this first and then maybe we get more of a legal response. Evan or Jim. I don't know what, what records folks are seeking. But, but one thing I used to do would be to ask for the same, you know, when I, when I was dealing with a federal agency, sometimes I would ask for the same set of records from other federal agencies and sort of, you know, use other agency's compliance against the federal agency that was withholding the records. We're, we're, we're in a presidential transition right now. There's every single federal agency provides binders and binders full of transition briefing books to what will be the Biden transition team. And after Obama came into office, I filed 150 requests for those same set of records from every single agency and some agencies literally provided me boxes and boxes of records. Others said there's no way you'll ever see these records and others just never bothered to respond. And that that was always a good FOIA audit story and you can talk about, you know, lack of widespread compliance and those records would come in handy years later for reasons I couldn't have known at the time. But, but if you're seeking records from a local government agency or a city government asking for those same set of records from five or 10 other government, you know, nearby governments, and then if nine out of the 10 produce the records. At the very least you can sort of apply pressure saying, you know, ours is the only city government that is refusing to provide these records. Why is that and just hammer and hammer away. You know, there's the press has other powers beyond going to court. I always ended up in media organizations that were very loath to, you know, sue and go to court and back you for things like, you know, I remember doing stories about corruption in the DC government road paving industry. And I asked for records about the literally the per the square footage unit price of asphalt DC compared to other surrounding jurisdictions and I believe Alexandria refused that many years ago but you know, lawyers have to pick their battles and I did everything I could do to sort of avoid that and but but there's other ways of sort of drawing, you know, drawing public attention to the lack of compliance is one thing but if you can do it in a way that shows that other governments are more than willing to give these records to you, but your government won't. That can sometimes do something so Evan did you want to add anything to that we could we could segue if not into you know sort of how you used for you with sort of along those lines with adjacent governments. Yeah, yeah I can I can talk about that that exact thing that we're talking about on the point I think Jeff mentioned in the chat or someone did but what Jim saying there is before litigation is obviously to call attention to the lack of records lack of transparency the actions and and to use that to your advantage as leverage which definitely the same thing for me I've had some success recently with using voice kind of a comparative analysis tool of getting similar records from different cities and then creating my own database for my own analysis of that to show a larger story or larger picture. I think Denise what you're referring to because we talked to yesterday a couple days ago is the story. I just ran a week or two ago. This summer we had a lot of talks on industrial form of course the Virginia special session, the role of police, the question of funding is what that looks like so I was thinking about how I could frame that in a way to be useful for our localities and so what I requested was the 911 calls for service by category for all of our local police departments and dispatchers. And then was able to take that information, compare it between those seven cities I mentioned earlier and break it down into subcategories showing this is how much of the 911 calls for violent crime. It's for property crime. This is for buyer alarms or threats for medical or person in need the increasing number of crisis intervention training things that we're talking about and hearing about. These are property crime, something like that, because on the surface, I think a lot of members of the public and a lot of us believe that, or may think that violent crime is a very large statistic because you hear about that a lot but in Hampton roads was about the fact that all calls for service were related to violent crime and the rest and all these other categories so the natural questions that led to was okay so these officers are being used these 10 areas. Here's the breakdown of that is that what we are looking for and intended and what what do we do with that information kind of presenting it in that way so for me I had a couple cities that were better giving records and others. But then when I was able to show them like Jim said that, hey, I got this from Virginia Beach, I got this from Chesapeake. Here's that kind of an example, because also the other thing you run into a FOIA request open breakfast quest is they may say, oh, we don't have a database ready for that, or, or we don't have and which like Megan's laughing I can see but you know, you have to work with them and say let me let me work with you and see a way that you can present this, and so I was able to show them an example and say like here's something I got from Chesapeake. I'm looking for this from you I know you have this information how can you get it. Also requested for me in an Excel format not a PDF, not a small tip, because then you can actually do analysis, instead of looking at the cheat but it helped to have that comparison right there and it helped me get into a much better story, and I was able to use that leverage so with Carter's question about citizens and legal recourse with a city government maybe try that route, try to try to publicize the difficulties for having and the inability to to give out that information and then see what happens from there. And a bit of a follow up to what you just said Evan and also to Carter's question is from Christopher Waymont, who's also from Alexandria that he's a part of a group of over 2000 Alexandria and they're trying to get more transparency in the city from the city on a number of topics, and they fully of the city multiple times on various subjects and they continue to receive redaction after redaction. When it's really not clear that the redactions are are warranted. Um, you know so I mean I guess just, I'm going to sort of push that question back again so we've talked about. Just some of the strategies right that Jim you talked about in your chat response of actually FOIA in the, the email trail internal email trail as a way of finding out what they've said about your request you want to talk more about that maybe. Um, I guess, first of all my initial reaction is if there's a group of 2000 residents who are denied a FOIA request if each one of them gave $5 they'd be able to sort of bypass all this and hire an attorney, and, and, you know, go to court because because the city is sort of engaging in, you know, practice you know sometimes unfortunately, you know, I sometimes unfortunately I think agencies and governments do engage in bad practices and do redact when they knew they shouldn't. And unfortunately, legal recourse is the only way to go about it. And if it's happening to this extent, and if you have a group of 2000 residents, and each one of them gave $5 you can go out and hire an attorney. That's, that's honestly, you know, it shouldn't come to that. But, but one thing I would always do when I was denied a FOIA or or there would be redactions I didn't, that didn't make sense is I'd file a subsequent FOIA for the administrative tracking file for my original FOIA. So, you know, my original FOIA would have a number attached to it FOIA number dash dash 394. And then I would ask for the administrative tracking file for that FOIA all emails and papers associated with it and you know sometimes that would actually be even more newsworthy than the original thing I was seeking. But, but in the case you're describing it sounds like, you know, I don't I don't know what they're asking for so so it's really hard to, it's hard to hard to know I always gave FOIA officers the benefit of the doubt, and assume that they were not unlike me overworked and underpaid. And, but, but there were cases where that wasn't the case and, and, you know, I would reach out to my local press organizations. They would help me draft FOIA appeals. I, you know, there are, there are many organizations out there or even if you're not a member who will be willing to help you draft a really good appeal. And, and I would go that route. And then if it was still denied. You know, I don't know, I don't know, you know, it's hard to say what I would do if I was this sound. This is a different sort of, you know, situation but it's hard to know without knowing what they're asking for anyway I'm right. Just as a sort of follow up to that for for Megan and Paul from the sort of legal perspective. Um, it seems like a lot of times local governments claim either attorney client or personnel. You know, and so, you know, what if you're, you're trying to find out information that in emails back and forth. Somebody was, you know, perhaps there was some sort of a threat to somebody's position. You suspect that in emails that have gone back and forth. And they claim these exemptions that really don't necessarily seem to apply. Um, you know, there was no attorney present. And anyway, what do you do when you, I mean, I guess we're sort of asking the same question over and over again to a certain extent but is there any other recourse or, you know, any other thoughts on that. I'm not sure how Paul might want to respond, but I do need to make clear that the communications director at the city of Alexandria is on the VCOG board of directors. So, I wouldn't say anything differently, but I do think it's important that your, your questioners know that that's that that's how it goes. Two points though to an addition is to also say that remember that, you know, redactions are the same as exemptions and so they can apply and they may apply and as Jim said it so it really is going to depend whether or not it's legitimately being used depends on what's being asked for. Um, and then secondly is, yeah, just like anything else, your enforcement mechanism is in court. Okay. All right, and a follow up to that was a Josh from the audience asked at what point our penalties pursued for foil violations. So, you know, not just an injunction, but are there actual, you know, true penalties that can be imposed on violations. Yes. So FOIA does provide for a civil penalty of between 500 and 2500 for a first violation subsequent ones. I think that's doubled for willful and knowing conduct. That sounds good. But it does, unfortunately, have to be acknowledged that judges are very reluctant to impose civil penalties. I think they identify with their fellow public servants and don't want to think that they acted intentionally. In the case of this. That's why this, you know, the civil penalty imposed against the speaker last month was, you know, exceptional not just because of who it was against but because it was actually imposed at all. But yeah, that can be part of it and fines have to be paid out of the public officials pocket and they go to the state literary fund. Huh. Okay, that's nice. How often do you think that happens. I just said that, you know, it doesn't happen very often. Yeah, yeah, okay. Um, all right, a bit of a more practical question for Evan and Jim is you filed your FOIA request. And what you get is a thousand email dump with multiple email chains sort of saying the same thing over and over again. How do you wade through all that or not be sort of so discouraged by the volume of what you've got. You want to take a shot at that Evan. Yeah, I don't know if I have a great tip for that I wade through it with patience and a little bit of excitement because if I'm getting that many records that are not redacted that means that I have the opportunity to find something so But yeah, your normal search tools and everything like that. The one frustrating thing is when you get those email FOIAs and they have the stack of a response and then when someone replies they copy that stack of responses go through but Yeah, it's just with the with the opportunity and with a little bit of patience for me. I don't know if Jim has a better answer than that. I don't. I will say that I have Adobe pro and that many years ago I would sometimes be able to sort of copy over the big chunks of redacted material and then go into a text document and actually paste. And the words would show up but that doesn't happen too often these days, but the first thing I would do is say, you know, thank you if they supplied that those, you know, thousands of pages of records I'd thank them and, you know, get to work so Sounds good. Well, and related to that is is a question about cost. Jeff or really any of the panelists who want to respond to this is do you have tips for keeping FOIA costs down, while still getting the information that you need, you know, whether it's a newspaper TV station or, you know, private company or a local or a citizens group. None of these entities are particularly flush with cash in general, or, you know, have money that they want to just spend, you know, on on FOIA is particularly you know what's discouraging is you spend $300 on a FOIA and then you look through the, you know, material and there's really nothing there. How do you recommend trying to keep the cost down. Well, I can I can kind of start the discussion there and the first step, of course, is to include in your FOIA, your written report FOIA request, a line that says, if the estimate or providing these records exceeds a certain dollar amount $50 $100 whatever you need to use is what you're comfortable with, you know, let me know in advance. And that way at least you know what you what your what your costs are going to be. And if those seem excessive, and sometimes government agencies do use the cost. So, you know, you might be able to get that number down. So, I mean, I would start there by certainly insisting on being notified if the estimate for records are going to exceed some dollar amount. Evan how does it work at your station do you have a FOIA budget or how do how do you do that how do you manage the cost. Everything's a negotiation for me. And it's it's up to me first I negotiate with the FOIA officers and then when it comes down to the cost that I would have approached our management. Here's, here's what this looks like for me right now but the same thing I have that line in my template FOIA request Jeff that says this amount, please notify me. Also knowing the Virginia State Code is important about when you would be required to pay in advance and when not, and also when a public body may require the requester to pay any amounts that are owed to the public body for previous requests. The records it may remain unpaid. That's an interesting one that I've run into a couple of times where, say, another person that my organization FOIA, but then they didn't get the payment. And once they have information they're saying this, you have to backtrack with that or for me, there is one with Norfolk public schools a couple months back where I'd void three different things. Another tip I have is to kind of separate out what you're foying if you can, because maybe they provide one faster than the other. If you just lump everything into one email, they're going to say hey we're going to take all the time and all the extensions to try to do everything at this but if you send three different emails maybe you get one faster. And it's less cost or whatever that is. So another tip there but I'd sent two different FOIA requests to Norfolk public schools. And based on the first one was more extensive they require a lot of payment in advance. I was negotiating back with them. I wasn't agree with how they were interpreting state code. And the second one they said that they would not fill because I hadn't paid for the first one, which is actually not part of Virginia State law either and I got to just throw the code right back at them and say that's not how this works, which is very fun and satisfying so you can read that section if you haven't enjoyable but in terms for me and payment negotiate negotiate with them, ask for for proof I don't know the exact language but I believe that if they're giving you a cost estimate and it's the head of the department the executive director I think if there's language in there that says it's the lowest. No there's not Megan, it can be anyone they can say anyone can fulfill it. I've been from previous day that I worked in but that cut you can negotiate and ask for proof of how much time will take and what the hourly rate is for that time, and then go back and forth with them that and that's generally how it works. That makes sense. But if I could just chime in just for a second on that because Jim mentioned earlier that you can FOIA, a log of FOIA requests and you can see what has been fulfilled, and how much was charged for previous times that that this kind of request that you're looking for my, you know, my, the government agency is charged. Sometimes you can find that information also on muck rock, one of the FOIA resources that we put in the chat box muck rock has a database, the requests that people using muck rock. You have submitted, if the if the requester allows it, if you're a journalist and you don't want anybody to know that you filed a request, it doesn't go into the muck rock database, but you have the option of putting it in there. And if you, you can then look in that database and see how much an agency charged for somebody else asking for a particular set of data. Plus, if the data has been, or the records have been provided to somebody else that that request has already been fulfilled that you know that you can you can then piggyback on that and say I just really, you know, I see that you fulfilled this three months ago, I just want the records that you gave to so and so you should be able to get that for free because it's already been paid for. I'm going to jump in and I would say that you know copycat requests I used to think that I was really smart but I'm not. And, and generally speaking, things that I asked for other people may have already asked for. And there's no reason at all they've already done the redacting. They've already sent it out. There's no reason why they can't turn that around in a day. So FOIA the FOIA log, see if you know other people, not not all media organizations have asked for the same thing you're asking for. And then you can get that same records production in a day if it's electronic there's no, they can't in good conscience charge you again. So that's a good point. I will say that in our in our city they actually Craig that Megan alluded to is very good about number one steering us toward non charge, you know, to people who can provide us information so we don't have to go through the FOIA process and there's no charge involved and definitely if we ask for something that's exactly what has been requested, then they provide that for free so they definitely work with us on that. And I think you've done some research on comparative costs. Well, just actually two weeks ago I went through the reporters committee for freedom of the press is open government guide, which has all the state open records laws broken down into and sort of plugged into an outline and you can compare various sections across topics. And so I was looking at that about how Virginia approaches fees, because some states do have a media fee waiver and the federal government does having media fee waiver that they can grant grant. So we don't have it in Virginia and I've actually, I don't want it in Virginia because it allows the government to decide whose request is okay and who's is not or who's is better and who's is not. So, or what you're going to do with the records which is usually something we don't like to see. But at any rate, I compare various states and what I found was that 13 states do not allow for any charges for the labor. In providing the records no search no review know nothing they just allow just the cost of the copy. Or if you have a you know if they're all electronic maybe the cost of a flash drive or something. Three, don't allow labor, generally, but have some very specific circumstances when they will allow it. And two, allow labor charges but have some sort of cap. You know it might be as Evan was referring to it might be you have to charge the lowest lowest rate hourly rate of the person capable of doing it in the office or it might say the first X number of hours are free in Colorado there's a limit. You can't charge more than 3850 I think it is an hour. So various limits like that. Three statutes were unclear there wasn't any case law that really helped explain the provisions there and the outline was just kind of vague. And that left nine, including Virginia, and that don't place any limits whatsoever on labor. I can charge you to search for it to have the lawyer review it to have another person redact it. And in the case of a reporter I was talking with two weeks ago, the cost of a second person to review and redact it. So that's where costs can really, really ratchet up, and we're looking I'm working with some folks right now to see if we might be able to get some reform going in Virginia about how fees are imposed. That sounds great I think every media outlet in the state would join you in that effort. So we are almost at the end of our time here today I guess I would just like to just open it up. Do the, any of the panelists have anything that you would like to add, you know, based on the discussion that you've heard or the questions that have been raised. Let me just say one thing, you know, I'd left full time journalism about five or six years ago. And, and I started to work for attorneys who represented. Again employees, federal employees who are subject to some sort of discrimination and part of part of building a case is getting interviews with other colleagues and coworkers. And so my first assignment was to go out and interview high ranking federal employees of a certain federal employee who was wronged and, and, and as a former, you know, current whatever I am, journalists, I thought there's no way these people are going to talk to me. But, but the fact is, the one thing I wish I knew as a reporter that I do know now is that people are inherently polite and friendly. And if you show up at their door whatever issue you're looking into. If you identify the five or six or seven people near or around that agency or issue, and you show up at their door at 630 at night. You knock on their door and you're respectful. And, and you tell them listen I didn't want to bother you at work. But I think this is an important issue. And I'd really like to talk to you, nine out of 10 times they'll talk to you. And, and that's not something you can FOIA. And, and, and I didn't probably as a reporter I didn't knock on enough doors. And so for what that's worth. I think that FOIA is a valuable tool. And, and I did not as a reporter I knocked on a lot of doors, but in retrospect not enough. So that's that's the only sort of thought that germinated into my head as best we talked about all this. And it's interesting another way of saying it in another life I actually worked for one of the US intelligence agencies and, you know, it's the difference between SIGINT and human. And, you know, I think one of the themes that has come out today is the human element of this that it's not just forms of human, you know, suing or whatever not that those aren't needed at times but it sounds like the sort of overarching theme is build the relationships. Anybody else want to chime in or anything else from the audience before we I kind of I'd like to pick up on on what you just said Denise and that even though we, you know, VCOG exists, you know, as the public's voice and we still advocate on behalf of journalists as well. And I hope that folks who do work as as working reporters remember that for all the problems that they may have in getting records. They are, they're in a better position than most citizens in that, you know, it is part of Evan's job to file regular FOIA versus a citizen who is doing it on the weekends or after work. Media organizations might not have much money but they probably have more money than an individual citizen to pay for FOIA requests. And also, the big theme, like Jim and Evan are developing their relationships and their resources, citizens typically don't have that they don't know where they don't know how government structure they don't know who does what they don't have a relationship that can bank on to kind of help them through that. And in some some places, especially small towns I've been messaging with a woman out in far Southwest Virginia who they won't even send her notice of their meetings and they post Facebook messages that say, you know, she wants she wants notice of a meeting and she's just wasting taxpayer money by requiring us to put a stamp on an envelope. So there's a lot of retaliation that can go on when a citizen tries to exercise their rights under FOIA so I'm not saying that to put a guilt trip on the media folks but to say just how important it is that you are using FOIA and and and looking for records and holding a government accountable because the public doesn't, it may be a law for everyone but the public doesn't have the ability to use it in quite the same way that the press does. Thank you. Denise one of the things that this this will a slight segue off of what Megan was just saying. The point that a couple of people have brought up is I think for the people who are journalists on here, getting information out in a creative way. Using FOIA creatively thinking of, you know, I know Jeff when you were VCU you did a lot of data journalism and getting numbers and doing comparative stuff. It would be very valuable for getting information to folks or do the panda story, which is, is kind of fun. It's a government story, really. And it's not not to overstate this but I you know, a lot of people who are working in government really are folks, just folks. And if you treat them well, and you might punch their button, the way Jim did with asking for the panda records. There's a lot of good stories out there I guess is what I'm saying. And FOIA can be a way to uncover them. It's not confrontational it's just helpful for all of us. Thank you. Before we sign off today I'd like to recognize the person who actually made all of this possible that's Stephanie Oberman, who is the, the technical coordinator of this webinar and is also the region to coordinator of SPJ. Stephanie has extensive experience covering the business of managing people, and she's the author of next generation wellness network so thank you very much Stephanie. And she's, she's muted. Well thank you so much to our really terrific panel, and to all of the people who have tuned in here today. You know we didn't even get to the public information officer facet of this maybe we need to do another, another webinar and, you know, sort of do the little recap of this one like at the beginning, you know like each episode of the Mandalorian we'll have a little what happened on the last one and then we can, we can go right into the related but different topic. So thank you all very much for being with us and we'll try to put to use what what you all have said today. Thank you. Thank you. Thanks. We're done. Thanks, Stephanie. Thanks Paul. Thanks everybody. Bye bye.