In honor of Student Press Freedom Day, today’s throwback takes a look at how to get important public records released when folks in power are reticent to do so. The folks at the Student Press Law Center have a number of great things happening today, including open virtual sessions with Mary Beth Tinker (of Tinker v. Des Moines) and Cathy Kuhlmeier (of Hazelwood v. Kuhlmeier).
A few tips on how to fight the good fight for open records
Open records and open meetings laws are among some of the most powerful tools available in trying to figure out what is really going on with many public institutions. Many big stories come out of open record requests and document digging. My favorites include the Journal-Sentinel’s “Cashing in on Kids” series, which looked at the way some people were gaming the state’s childcare system, and a series the Sun-Sentinel did years ago on deaths associated with plastic surgery.
Open records requests are great tools because while people can deny things or decline to comment on issues, documents are pretty much the unvarnished reality in black and white (if you’ll pardon the pun). Here are a few recommendations for you if you are taking your first steps into this area or you are a pro at this and want some validation:
File frequently: Much like any other mechanism or muscle, open records efforts don’t work well if the system has atrophied. The more of these requests people see, the more likely they are to know how to address them properly. This doesn’t mean turn your record keepers’ office into a paper dump every day, but consider doing a couple requests a month to see what you can find and to get the offices you want to use used to how this works.
Follow up: States have various rules pertaining to how long they have to get back to you or to fulfill your requests. In some cases, they spell this out while in other cases it’s “as soon as reasonably possible,” which is akin to when your parents used to say “We’ll see” when you were 6 years old asked if you could get a pony or a rocket ship. As the deadline draws near, check back via phone or email with the record keeper to see where your request is.
Don’t back off: When people tell you “no,” that doesn’t mean you are done. In some cases, people will say no for no good reason. Again, the answer has to be rooted in law and completely explained. This can’t be like when you were in high school and you asked for something and your parents just said “NO!” and when you asked “Why?” they answered “Because I’M A PARENT! That’s WHY!” Maybe mom and dad could get away with that but public officials can’t. Make sure the law is clearly stated and that they aren’t trying to snow you. (One open records case we dug into found the university’s lawyer telling us that they didn’t have to produce the documents under some obscure Indiana state law. It turns out they basically were trying to assert that information they wanted to share with the entire campus, but not the newspaper, was an “internal memo” not meant for public consumption. The state arbiter eventually ruled in our favor, but it was because we pushed the issue and didn’t take the first “no” for an answer.)
Ask for help: Students often feel they get the shaft on this kind of stuff because the state, the university or whatever public institution has resources beyond their reach, including access to legal advice. If you can’t afford Ramen and Diet Coke at the same time, how the heck are you supposed to afford a lawyer? The answer is that the Student Press Law Center can offer you some assistance. They have experts on duty to give you free advice on how to proceed. They can also arrange to get you a lawyer in some cases to help you pursue your quest. (Again, disclosure, they’re helping our paper out in this case and I’ve chipped in to them on more than one occasion.) You can find the group’s website here. It’s full of all sorts of great information, including how to file a request, what states are doing what in regard to the law and stories about students fighting the good fight for open access to stuff. It’s worth a read.
What I’ve got here is the assignment my junior-level course is doing regarding open record requests. They’re required to FOIA something in a formal fashion, get the records and write something decent out of it.
I’ve also uploaded some appendix work I did in advance of the second edition of the “Dynamics of News Reporting and Writing.” It lays out a basic letter and explains why it works the way it does.
(Yes, I know there are open-records templates and open-record-request generators online, but I have them work off of something like this so they can not only get used to doing it, but to see how each piece works. It’s like the difference between buying a new carburetor and rebuilding your old one: If you take it apart and put it back together, you learn how and why it operates the way it does, which can be inordinately helpful in life.)
Students of mine have done some incredible work with this kind of thing, or just answered basic questions like “How much money does the parking department make off of expired-meter tickets?” and “How many people got busted for public urination during this year’s “Pub Crawl?” It’s less about breaking the next Watergate story and more about learning the process. In addition, it helps them figure out what kinds of things they can get and what those items can tell them.
In trying to explain ethics to my intro writing students, I often fall back on the line that, “Ethics basically deal with things that aren’t illegal, but can get you in a lot of trouble, anyway.” Another way we separate law and ethics is the line between, “Can I do X?” vs. “Should I do X?”
MADISON – Republican legislative leaders lashed out Wednesday at Democratic Gov. Tony Evers after his staff secretly recorded a May 14 phone conversation over how to respond to the coronavirus pandemic the day after the state Supreme Court struck down the state’s stay-at-home order.
The recording and the reaction to it all but ensures a permanently broken relationship between Evers and Republicans who control the Legislature. The two sides have rarely gotten along since Evers was elected in 2018 and Wednesday’s episode was characterized by GOP leaders as unprecedented.
Republicans referred to the recording effort as “Nixonesque,” referring to former Republican President Richard Nixon’s desire to record everything involving him at the White House. I’m uncertain if this is irony, self-loathing behavior or something just randomly laughable, but I’m at a loss for words while watching a Republican use the name of a former two-term (almost) president as an insult. I guess I’m also pretty sure that the relationship between Evers and the Republicans was permanently shattered like Waterford Crystal thrown off the top of the Empire State Building waaaaaaay before this incident.
In any case, here are a few random thoughts for journalism students that don’t delve into the political grandstanding in this case that makes soccer “injuries” look honest by comparison:
THIS SHOULD HAVE BEEN PUBLIC ANYWAY: Bill Lueders, president of the Wisconsin Freedom of Information Council, made the best point about this situation. Why the hell was this a “private phone call” among three key governmental officials?
(Lueders) said recording a conversation without alerting the other parties isn’t illegal in this state, but is in bad form — and that the nature of the meeting should have pushed the three to talk publicly instead of privately.
“I wouldn’t do that as a journalist, to record someone without them knowing,” Lueders said. “On the other hand, I don’t know what would have been said in that meeting that needed to be kept private.”
Maybe if this is a public meeting, none of this becomes an issue in the first place. Sunlight is said to be the best disinfectant, and it would appear to be so in this case.
RECORD EVERYTHING, BUT BE HONEST: According to the numerous accounts I’ve read, Richard Nixon was paranoid as hell and believed people were always out to screw him over. If you have spent any time as a reporter in this day and age, I bet Tricky Dick starts making a little more sense in that regard.
I can’t tell you how many times I have written something I got from a source, quoted a source or provide information I got about a source, only to have the person who gave me that information tell me I was wrong. And I did most of my work before the era of people in power calling everything they don’t like “fake news.”
Thus, my advice to students? “Record everything.”
That said, recording is one of those key areas where law and ethics diverge. According to the Digital Media Law Project, 38 states plus the District of Columbia have what is known as one-party consent. This means that if you are on a phone call with another person, you may record it legally without letting that other person know. The other 12 states have two-party consent, which means BOTH parties on the call must know and agree to the recording before it happens. (You can read more on your state’s rules and what happens if your recording across state lines etc. here.)
The law says, “Record them all. Let God sort them out.” Ethics, however, would dictate that secretly recording people kind of undermines trust, as Lueders pointed out. This is why I always tell the students to be up front about their recording. Tell the source, “I would like to record this interview. Is that a problem?” In most cases, sources will be fine with it.
Some folks will be reticent, so I tell the students to explain WHY they want to record the interview: “I want to make sure I don’t make a mistake,” or “I want to be sure the quotes are accurate,” or “I want to protect both of us.” However, the students want to explain it is fine, but at the end of the day, it’s about having a permanent record of what occurred so if the stuff hits the fan, and suddenly everyone is pulling a “Shaggy” on this situation, you have a complete record of what happened.
STILL, WATCH OUT FOR YOU FIRST: I totally get why the person recorded the conversation: The Evers administration and the Republicans out here who will rule the assembly in perpetuity, thanks to gerrymandering the likes of which we’ve never seen before, are constantly in a bombastic struggle to define “truth” for the public. I’ll read one story one day and think, “OK, they’re doing X” only to read the next day some recasting of the situation that makes me think it was a dream.
In the end, if you know someone’s going to try to screw you, get a permanent record of reality.
Honestly, I’ve recorded people without their knowledge. I don’t say this with a great deal of pride, but this is what happens when you run a crime beat in an area where people felt no compunction about calling you up to scream at you about coverage. After I almost got smoked once, I considered it an insurance policy.
The first time this happened, a person called the main desk at the newspaper, asking to talk to the person in charge of crime stuff. The staffer sent the person to me, and the caller spent at least five minutes screaming at me about a story we ran. It turns out her kid/brother/friend/whatever was “illegally arrested” (a phrase I still love to this day) and what we wrote needed to be retracted RIGHT NOW.
After mentioning places that I could put my head, which defied the laws of physics, and questioning the lineage of my parents, this woman was not happy with my decision not to acquiesce to her demands. She wanted to speak to my boss.
I gave her his number and he got a much different treatment: A lot of “sir” mentions and some polite questions and so forth. She mentioned how horrible I was and how I said horrible and unspeakable things to her. Of course, my boss brought me in to ask me about this. He bought my version of events, but I swore it would be the last “he said/she said” thing I dealt with at that paper.
I hooked up a tape recorder to the phone and kept it at the ready. When I got the next call transferred, questioning my approach to crime news, I recorded it. After my boss got the complaint about me, I offered to let him listen to the recording. Eventually, that became our routine:
Him: “I got a complaint that you were horrible to (SOMEONE) who was complaining about (WHATEVER I DID).”
Me: “Uh… No… Would you like to hear the recording of the call?”
Him: “Fair enough…”
Still, the most important moment of recording I can recall came when I was an adviser at Ball State University. The school was in the middle of a provost search when one of the three candidates pulled out. The remaining two candidates were relatively polarizing: The president clearly favored one and the faculty and staff favored the other.
Just to back up her notes, the reporter borrowed my recorder for the phone call with the president. She asked the obvious question if the president had planned to restart the search. I can still remember to this day hearing the reporter as, “Is that even an option in your mind?”
The answer was no. We have two qualified candidates and we’re moving forward.
That was the story we ran, and then all hell broke loose.
Faculty were outraged, figuring they were going to get screwed, so they started talking. The president, clearly not wanting this to be a mess, decided the best thing to do was throw the newspaper under the bus.
She issued a statement via email to faculty and staff that basically said, “Look, the kids at the newspaper try really hard, but they’re kids and they screw up stuff. I never said we wouldn’t restart this. In fact, that’s what I’m doing right now. So, relax and don’t worry about the mistakes of children.”
Her problem was, we had it recorded. She didn’t know.
To be fair, the student SHOULD have told her we were recording her, and that was a lesson we made clear in the post-game analysis with the reporter. Thus, we gave the president a chance to do the right thing. The editor-in-chief called her and told her that she made us look stupid and that we were asking for a retraction. We’d let it go if she fessed up. She immediately went back to her talking points about the reporter screwing up and how this happens with cub reporters and how she wasn’t mad, but she had to set the record straight.
At that point, he let the cat out of the bag. She paused, said some unprintable things and then asked, “Are you recording me now?”
I remember thinking, “No, but I wish we were…”
In the end, she held firm. We ran her email alongside a transcript of the phone call along with an editorial on the whole thing. She was displeased, but that was on her. If the primary complaint someone has about you recording them is that you’ll report exactly what they said and they don’t like what they said, I have very little sympathy for them.
This leads to the next point…
IT’S NOT OUR FAULT YOU’RE A DIPSTICK: The reason we know about this recording in the first place is because the Milwaukee Journal-Sentinel put in an open records request for everything associated with a coronavirus meeting between the two sides. Once they asked for everything, including recordings of the meeting, the recording came to light.
(Good side note: In open-records requests, ask for stuff that MIGHT exist, even if you don’t think it does. You might get lucky. In this request, the reporter apparently asked for any recordings of the meeting when requesting documents from Vos as well and got nothing because he didn’t record anything. The request sent to Evers yielded the tape. Short version: It never hurts to ask for stuff.)
Evers did the right thing in turning over the file, even though I’m sure he really didn’t want to. It had to be like that scene in “Silence of the Lambs” when the moth flies out of the basement and basically the killer knew he was screwed. The game was over at that point, and he basically had to brace for impact.
The recording was what I would have expected of divorced parents who were forced into a dinner with their kid at graduation: A lot of people talking past one another, some pointed jabs and the essential “How much longer must we endure this fool?” vibe. One thing that did pop up as a story was Assembly Speaker Robin Vos blaming immigrants for the coronavirus:
MADISON – Assembly Speaker Robin Vos blamed the culture of immigrant populations for a coronavirus outbreak in Racine County, according to a secret recording of his meeting last month with Gov. Tony Evers.
“I know the reason at least in my region is because of a large immigrant population where it’s just a difference in culture where people are living much closer and working much closer,” the Rochester Republican said of an outbreak in Racine County.
Of course, Vos didn’t like the story that pointed this out and tried to move the discussion back to how shameful Evers was for recording the call. He also tried to spin this to make it about how he had a deep concern for people of color who were disproportionately suffering the effects of the virus.
(Hang on… I’m dealing with the vertigo caused by that spin… OK… Phew…)
At the end of the day, neither group looks good and Vos has to deal with what would appear to every Latino group the MJS contacted as a dog-whistle, anti-immigrant blame-fest.
What’s important to remember, however, if you record something as a journalist and someone says something stupid, it’s not your fault.
This is one of the few cases where people aren’t blaming journalists, because the journalist didn’t make the recording. Vos comes the closest, in accusing the paper of not keeping its eye on the ball with the whole “Nixon-esque” recording. However, usually, in a story in which someone records something (telling the source or not) and it turns out the source says something horrible, the outrage is more over the recording or the choice to run the story than it is the horrible thing the person said.
It shouldn’t be, and you shouldn’t feel bad about it.
Your job is to report the facts, getting as close as you can to the purity of truth, in an attempt to inform your readers of something important. Rarely are those revelations something pretty and happy, so someone will be upset.
If a state rep or a city council member or a school board president says something offensive about race, gender, sexual-orientation, socio-economic status or some dude named Chad’s little brother, and you think your readers need to know about it, that’s called editorial discretion. Use it to guide you in your choices.
ALWAYS ASK, “IS THE JUICE WORTH THE SQUEEZE?”: In looking at ethical behavior, I sometimes find myself being a pragmatist more than I would like. Still, that’s because I know I have to live in the real world and not in an ivory tower, subsisting on creeds and mottoes. What I “can” do versus what I “should” do often comes down to a weighing of my options and examination of the ramifications.
(This situation is weird, in that the journalists didn’t make recording, so whatever they picked out of the open record was less on them than it was on the person making the comments and the staffer who recorded it.)
If I record a source, and the source knows the information is on the record, and the source knows I’m recording it, I pretty much have carte blanche to do as I see fit. That’s where editorial discretion comes in. What am I trying to do here?
If I run a story based on one part of an hour-long interview that makes a long-time and trusted source look bad, will I be cutting off my nose to spite my face? Probably. Some folks would say that ethics demand the unveiling of any ill that could showcase the true nature of public figures. Others would say that, short of watching that source kill a guy, you’re not ratting him out because sources like that are hard to find.
This is where I spend more time bean-counting than I might otherwise like. Is one flashy story worth not getting another story again from this source? Is my ability to tell people important things, thanks largely to this source, going to be undermined by me taking a shot across the bow at this guy? Am I protecting a person I shouldn’t be protecting, primarily because he makes me job easier?
This is why journalists who have ethics tend to drink like fish and chew Xanax like Tic-Tacs.
As a journalist, what you do is up to you (and to that extent, your publication/boss/editor/whomever runs the show), so you need to decide for yourself if the juice is worth the squeeze.
The degree to which the state was basically asking Nemec to forget everything he learned in those unredacted documents and never disclose anything about the content within had both First Amendment and privacy issues, as Nemec’s lawyer noted at the time.
On Friday, the state backed off:
Nemec emailed me Friday to let me know his lawyer had forwarded him this. The upshot is that the state has decided against pursuing the reopening of the case and pursuing the injunction, so he can continue to report as he sees fit based on what he learned, without fear of a neuralizer:
(Next time, Alex… Next time…)
Nemec said the only issue left at hand is if Hagen wishes to pursue his request to “name names,” which would require him to file a motion on his own. If he does, Nemec said, it will come before the judge on Nov. 21.
As a student journalist, Alex Nemec heard a rumor that a business professor was teaching a class when some university officials entered the room, removed the professor and dismissed the class. The next time the class met, he heard, the students had a new teacher and nobody knew what happened.
He wanted the answer to a very simple question: Did this actually happen and, if so, why?
The latest twist involves the Department of Justice filing an emergency petition with the court to bar Nemec from reporting on the documents he received as part of an appeals court ruling.
The case dates to early 2017 when Nemec, then a reporter for UW-Oshkosh’s student newspaper, The Advance-Titan, filed an open records request with the university seeking Hagen’s disciplinary records and emails.
Hagen sued the university and the Board of Regents for the University of Wisconsin System to block their release. The judge ordered the records released but with some material redacted. And that decision was upheld on appeal.
When the records custodian finally released the documents in August, she inadvertently sent the unredacted copies to Nemec, according to Schimel’s notice to the court.
Schimel is asking that the court force Nemec to destroy the records and bar him from sharing or publishing any information that had been mistakenly released. In a separate filing, Hagen is asking the court to require Nemec to “identify all persons and entities to whom he disclosed the confidential information.”
Simply to boil this down, the person who sent the records messed up and sent the wrong records to Nemec in August. About 45 days later, she realized that she messed up and first attempted to get Nemec to “do the right thing” by promising not to publish anything in those records. When he declined to do so, as he had legally obtained the records, the DOJ filed the emergency motion, which won’t be heard until November.
Here are three key things that should really concern anyone interested in the First Amendment and governmental overreach:
Nemec didn’t violate the law, but he is being treated like a criminal
The most important thing to keep in mind here is this: This situation is not Nemec’s fault. I’ve had to say that so many times in regard to this situation that I feel like I’m in “Good Will Hunting.”
A recent case occurred in Florida, where the Sun-Sentinel requested educational documents pertaining to the Parkland school shooter, Nikolas Cruz. When the school released the records, the redactions didn’t “stick” so the paper could see everything on those pages. The content that the district intended to redact but didn’t showed multiple failings on the part of the school district pertaining to Cruz and directly contradicted public statements district officials made about Cruz.
As Nemec’s lawyer noted in her filing on this case:
Plaintiff and Defendants in this case focus their injunction motions on Intervenor’s conduct, but these requests are either moot (because they request Nemec to delete the records when they have already been deleted), are unconstitutional as a prior restraint on speech (as in the requests to enjoin Nemec from publicly disseminating the redacted information), or are themselves an unprecedented intrusion on news reporting and private lives (as in Hagen’s request that Nemec name all the people with whom he has shared the information).
There is no question that Nemec legally obtained the information, and now that he has, “[t]he choice of material to go into a newspaper . . . and treatment of public issues and public officials—whether fair or unfair—constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time.” Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 214, 258 (1971).
In other words, it’s up to Nemec to decide what he does with this information. His ethical standards and editorial discretion will guide him, not an attempt at prior restraint.
The extreme level of intended suppression borders on insanity
The state is trying to put the ketchup back in the bottle, by requiring Nemec to get rid of all the files and only rely on what he would learn in the new “cleaned” set of documents if he were to publish a story.
That means the state is asking him to suppress his knowledge of the things he already read in those earlier documents and not share that information, whether or not he finds it to be newsworthy, with the public. Unless the DOJ possesses a “Men In Black” memory wand, this isn’t going to really work.
(Hold still, Alex. This isn’t going to hurt at all…)
While the state’s position borders on the absurd, what the Journal-Sentinel wrote in regard to Hagen’s filing comes across as downright frightening. His request is to force Nemec to provide the names of anyone with whom he might have shared the documents or spoken to about them.
First, stop and think about the chilling effect that would have on almost anyone who might speak to a journalist about any matter of public importance. This isn’t a case in which Nemec is being asked to disclose sources for a greater public good, but rather one in which he is asked to tell the state the names of people he might have discussed legally obtained information. His parents, his girlfriend, people with whom he works, journalists at his former student newspaper and more. (Full disclosure: I know I would be on that list, as Nemec and I have been discussing this whole case for more than 18 months.)
When I first saw Hagen’s demand, although the parallels aren’t perfect, my mind immediately went back to the HUAC trials of the 1950s and McCarthyism and it was damned scary.
Second, consider that Nemec had this information for 45 days. I can’t remember what I had for lunch yesterday, but he’s supposed to come up with a laundry list of people and organizations that might have heard about the unredacted information in the past month and a half? What if he’s wrong or forgets someone? Then what?
Also, let’s pretend that the courts would require him to do so AND Nemec had the mental fortitude to remember every, single person or group that he spoke to about this. What now? My guess would be that THOSE people would be the next to see some sort of suppression filing requiring that THEY list off everyone who THEY might have spoken to or shared information with about this. How far does this web of “don’t you dare” go?
How bad could this really BE?
Over the past 20-some years in which I have filed open-records requests and helped others file them, I have NEVER seen a situation get to this point. In most cases, these requests don’t even BECOME cases because people don’t take the issue to court, no matter WHAT is contained in those documents.
We had a situation out here in which a student in my reporting class requested documents pertaining to the firing of the university’s volleyball coach. She put in the request in March and after all the necessary notifications and time delays, she had the documents in August. You can read the article here, but as kind of a “trigger warning,” here’s a paragraph that gives you a sense of what these documents lay out:
One of Schaefer’s athletes filed a sexual harassment report against him with Dean of Students Art Munin on May 19, 2017. The report stated that Schaefer bought the student drinks, played a game called “nut ball,” texted him in a sexual manner and gifted him with a “jerk off cloth.”
The level of fighting to keep things under wraps here has me absolutely flummoxed as to what it is that Hagen and the university are trying to keep out of the public eye. I feel like Jacob in “Hot Tub Time Machine:”
The reason I’m perplexed is because the way I’m looking at it, this could be one of two things:
This is a case of trying to kill a fly with a sledgehammer. There’s nothing in this thing that is so horrifying that it would irreparably damage the university or Hagen if it were released to the public. It’s a situation in which people might feel better if they could control the situation, but there’s nothing there that requires a shoe box labeled “Cincinnati.” The university might want to limit the release of names of other people involved and so forth, but as noted above, that’s not their call now if precedent means anything. I know Nemec well enough to know that just because he could do something, it doesn’t follow that he will. If he didn’t have an ethical code, he would have posted the documents everywhere, in their unredacted form, already.
Gwyneth Paltrow’s head is in the box and nobody wants us to know.Opening the unredacted portions of these documents to public scrutiny would reveal something horrifying about the university, Hagen or some combination therein. I really don’t think this is the case for a simple reason: These documents pertain to an incident before the one that Nemec really wanted to know about. After this situation was resolved, Hagen was able to continue working at UWO. If these documents contained that “What’s in the box?” level of concern, there’s no way that would have happened. Still, according to Nemec’s story, Hagen was removed from a CLASSROOM and his classes were reassigned and it’s unclear to the public WHY, so I would have to assume SOMETHING weird is going on. How weird? We might never know
The judge will hear arguments on Nov. 21. It’s unclear to what degree there’s going to be more on this, and Nemec has declined to comment on any of this until the case is settled. Making things even more bizarre, the university is still sitting on a set of redacted records more directly pertaining to Nemec’s original request until this situation is resolved.
Although it would be interesting to find out what these documents all say, the bigger issue is what the court’s rulings will say about what journalists can say in these situations.
It’s interesting how that works. The very organizations entrusted to equitably distribute student fees decided their own organizations deserved more money than those who had no say in the matter and weren’t even allowed to witness the deliberations. The only organization with a platform to question that decision was recommended a massive, intentionally-destructive cut.
Can you say self serving?
The Sunflower staff members, however, know that fire and fury alone isn’t going to get the job done. Overall, the paper is also providing readers with great examples of how to do journalism right, even when you become the story.
Here are a couple great things the staffers have done that serve as good examples for other writers:
Stick to the facts and let them do the work for you: I often have to tell students that they need to just let the facts speak for themselves, because the more they inject opinion or hyperbole in a piece, the less I want to hear what they have to say. This often happens at the end of some beginning-writing stories where students will write “summary paragraphs” like this one for their news stories:
In sum, it is important that people donate blood, as it’s not only lifesaving but it’s the right thing to do.
I often refer to these closings as “One To Grow On” closings, calling back to the 1980s PSAs where “stars” of the day would “guide” young people away from making bad decisions during a role-playing exercise. At the end, the “star” would make the case about how good it was that the kid did what he/she was told, ending with “And THAT’S one to grow on!” Seriously, it got really annoying:
(That’s right kids! Tootie from “Facts of Life” wants you to avoid smoking!)
It’s the same thing in sports where people decide to slather on the adjectives and adverbs to try to make something sound incredible. Often, if you just tell me a fact or two, particularly if you place them properly in the story, I’ll get the message.
This brings us to our ongoing look at The Sunflower at Wichita State and the attempt of the student government to slash it’s budget. Rather than grouse about everything happening, the staff members of the paper have been writing just what happened and letting the readers figure out if this is a hatchet job or not.
However, my favorite use of facts to just drive home the point is this use of two simple statements that run back to back in an update of their situation:
Funding for other programs would have increased with the proposed budget, like Student Affairs, which was recommended an increase of $118,811.
Vice President for Student Affairs Teri Hall is the chair of the Student Fees Committee.
Just read those two sentences over again and let them sink in. No build up. No superfluous writing. Just….
OK, if we can’t go to the meetings, The Sunflower staff figured, let’s see what they’re going to talk about instead and share it with the readers.
The staff used the open records law to get the whole binder of funding requests the committee would be reviewing and posted the whole thing online. In looking at the budget for student affairs, the staff discovered that while the committee would cut The Sunflower budget by about $50,000, the Office of Student Affairs would see an increase of more than $118,000:
(The thick black line separates the 2017-18 actual budget from the 2018-19 request. Each column moving back from there is the actual funding for each previous school year.)
Not only is the division seeking to have its budget increase by a six-figure sum this year, this would be on top of a nearly half-million-dollar increase from 2016-17 to 2017-18. Collectively, the SA’s office, whose vice president (Teri Hall) sits on the fee board, will see almost $600,000 more in its coffers over a two-year period if the budget goes through as it stands. In addition, the specific line item attached to Hall’s office accounts for approximately $32,000 of this year’s increase.
As we’ve noted before, documents are amazing tools.
Keep telling stories that matter: It would be easy for the staff of The Sunflower to get buried in this story. Heck, I know I am and so are a lot of you if this freakish spike in blog traffic is any indication. Consider this “global” interest:
That’s right. We’re killing it in Somalia and Bahrain…
(EDITOR’S NOTE: This is long and complicated, but worth it. If you disagree but still dislike the idea of student government officials randomly closing meetings, student newspapers getting financially bludgeoned and other similar things, hop to the bottom and contact the people involved to have your voice heard.)
A student asked me this question during our advising appointment this week:
“Why do I have to take media law?” she wanted to know.
“Because you need to know if someone out there is trying to screw you,” I explained.
I wish I could remember who asked that, because the situation involving Wichita State University and its newspaper, The Sunflower, is a perfect example of how government, law and media can become a jumbled mess.
“We are the line-item that got cut the most,” EIC Chance Swaim said in a telephone interview Wednesday night. “In fact, many of the fixed items got an increase in funds.”
“We have not had the most favorable coverage of the student body president this year, but it hasn’t been overly aggressive,” Swaim said Wednesday. “We just cover SGA meetings. We had a lot of controversy last spring, but it’s been kind of a private year overall. The administration is where we’ve had a lot of big stories and they’ve given us a lot of push back on that.”
The administration’s take?
Paige Hungate, WSU’s student body president, said the proposed cut “has nothing to do with coverage, nothing to do with content.”
Also…
Teri Hall, vice president for student affairs at WSU, said the proposed budget cut “has nothing to do with punishing people for what they write.”
The Student Fees Committee closed the door to its meeting room in the Rhatigan Student Center Friday afternoon to deliberate about how to allocate between $9.53 and $9.82 million in student fees — claiming SGA is not a state agency, student fees are not state funds and, therefore, the meeting could be held behind closed doors.
Let’s unpack this quickly: The fee committee is part of the student government of Wichita State University, a public institution. In its own governing documents, the SGA notes the following:
The authority granted to the Association in this section is derived from and shall be subject to the authority of the Board of Regents and the President of the University.
The authority granted to student organizations, through a grant of official recognition, is derived from and shall be subject to the authority of the Association and its representative bodies.
The nine-member Kansas Board of Regents is the governing board of the state’s six universities and the statewide coordinating board for the state’s 32 public higher education institutions (six state universities, one municipal university, nineteen community colleges, and six technical colleges).
So EVERY entity in this chain of command is directly attached to a public institution, including the student government, making the claim that SGA doesn’t have to operate under Kansas Open Meetings Act self-serving and ridiculous.
I did some digging into the KOMA and couldn’t find a single instance in which the rules would allow for this meeting to take place in private. Given that my legal expertise starts and ends with binge-watching “Law & Order” reruns, I contacted a lawyer and a First Amendment expert for a ruling. His take:
Most places make student orgs like this subject to the law… 75-4318 sure makes it look like this is a government body subject to the act. It’s a board/council/authority supported by government funds and expending them, and it doesn’t fall under an exception.
The president of WSU, John Bardo, issued a statement to Hall after all of this, asking that future funding meetings be held in the open “so that the campus and the community know we are committed to the First Amendment and the freedom of speech required in a first-class university.” That’s great, but Bardo also noted that he did not believe KOMA applied or that the SGA violated the law, a statement that appears to be lacking in fact. It also doesn’t remedy what’s happened already.
The rule of law for the disbursal of student fees to organizations states that the money must be doled out in a “viewpoint neutral” way, lest the SGA violate the First Amendment. For example, an SGA can’t fund the Campus Democrats for X dollars and A, B and C activities and then turn around and deny the Campus Republicans X dollars for those same activities, simply because it doesn’t like what the Republicans have to say.
The way in which the public can figure out if this is what’s being done is to have these deliberations and decisions made in an open meeting. This prevents people from doing weaselly things in private and then polishing up their rationale for the public.
Even more, if, for some completely legal and yet unimaginable reason, the SGA COULD close that meeting for deliberations, there are rules that you have to follow to actually do so. The agenda for the meeting must note an intention to go into closed session and that agenda must be posted prior to the meeting in accordance with the state’s open meetings law. Then, the group must formally go into closed session. According to the state’s attorney general:
How does a public body properly go into an executive session?
First the public body must be in an open session, before going into an executive session.
Then, a motion must be made, and seconded.
The motion must contain statement of Justification for closure; Subject(s) to be discussed; and (3) Time and place open meeting will resume.
Example: “Madam Chairman, I move we recess into executive session to discuss disciplinary action against a student in order to protect the privacy of the parties involved. We will reconvene the open meeting in the conference room at 8:30 p.m.”
Swaim said Wednesday no intention to close was posted, no motion was made and nothing else like this happened in the open, public part of the meeting (if one even existed).
“We tried to go in and Hall said, ‘This is a closed meeting,’ and closed the door on us,” he said. “Then she sent out the students who were on the committee to to see the attorney and they came back and told us ‘The meeting is closed.'”
Hall said the students went to speak with the general counsel, “because the bylaws say, it’s a student government decision. That’s why they went over to do it.”
About 20 minutes after leaving the RSC, the students, led by (SGA President Paige) Hungate, returned. Hungate approached reporters and said the meeting would be closed “according to discussions with people.”
Asked to elaborate, she said she and the other students had consulted with “the general counsel’s office” who advised her it was “a student government decision.”
Hungate said she was advised “student fees aren’t public funds, and that SGA is not a state agency.”
The Sunflower basically finds itself fighting a war on multiple fronts: It is trying to figure out how to survive if it loses half of its already diminished funding, it is trying to find out WHY the funding cuts happened and it’s trying to fight for transparency in its government. It’s also trying to put out a twice-weekly paper and a daily online product.
“It doesn’t feel great,” Swaim said Wednesday. “I think, though, it’s a good opportunity for a lot of clarification. If we can get this cleaned up to where we don’t have to fight this every year, to where it’s clear where we stand on campus… I think it’s valuable to go through this. It’s something that will be an ugly fight, but it will benefit everyone and I think before it’s all said and done, someone in the administration is going to need to step up and say, ‘Enough. This is how we’re going to handle this.'”
With that in mind, here are three takeaways/action items associated with all this:
Know your rights and fight for them: People, especially people who don’t like you, will always try to weasel their way around the rules to benefit themselves and screw you over. This is why you have to know the law backward and forward so you can force the hand of people like the SGA folk. Most, if not all, state open records and open meetings laws put the presumption of openness first, which means you don’t have to prove why something should be public. The other side has to prove why it should be held private. That means actually citing a real law, not “tradition” or “our bylaws.” If the SGA rewrote its bylaws to dictate that before holding a meeting, the SGA president had to murder a freshman in front of everyone, would that make it legal to do so? Obviously not.
If you know your rights, you can stop people from randomly violating the law and you can serve as a true watchdog for your audience.
Don’t let people snow you under.
The media matters: The reason we all know about this is because media outlets (The Sunflower, The Wichita Eagle etc.) are on the case. The Washington Post adopted the slogan “Democracy Dies in Darkness,” and there couldn’t be a better example of this than what we’re seeing here. When any public body can operate without the oversight of the public itself (or its surrogate, namely the media), it can do a lot of things that will benefit it or harm its “enemies.”
Truth be told, I HATED covering meetings when I was a reporter because they felt pedestrian, incremental and pointless. However, once I got into the editing side and could see more of the big picture, I started to realize how important it was to dig in on a lot of political issues, particularly those involving money.
We have fewer and fewer media outlets out there and most of them are in a state of atrophy, due to budget cuts and staff reductions. Those that remain at the publications are expected to do more with less. This can’t lead to the erosion of democracy and public accountability.
Support your local media in any way you can. Buy a subscription. Read it and talk it up. Connect with the staffers to let them know you value what they do.
“We are the voice of the students on campus,” Swaim said Wednesday. We provide a forum for discussion of campus things. We bring the campus into the public sphere. We let people know what’s going on and we provide a historical document for our campus. We matter.”
It can happen to anyone, anywhere, so speak up: The story of The Sunflower is a sad one, but it’s not unique. The Student Press Law Center has a running list of stories that outline some of the egregious ways in which student governments or college administrations have yanked funding, threatened reporters, violated the law and other fun things. I know many student newspaper advisers and those of us who have been in the game long enough know that at any point, this could happen at our school.
I had the benefit of working at Ball State University, which had its journalism department founded by Louis Ingelhart. Louie, as he was affectionately known, was a champion for and an expert on the First Amendment. His passion for student media imbued everyone in that department and flowed throughout the university. When we got a new president in the early 2000s, Louie showed up for the press conference. He was in his 80s at that point, but he found the student reporter and told him, “You go tell (the president) that nobody at this university has ever censored the student newspaper and nobody is ever gonna.”
I also had the darkness that comes with student government people who feel way too self-important. After telling The Advance-Titan for years that we should “forget about the debt” we were accruing and that OSA (student government) would handle it, one group decided to use the debt as a cudgel to get rid of me. (It still bugs me to no end that if you google me, one of the top returns is the article where they told the city paper I needed to be fired if I didn’t resign.) Fortunately for me, I had a good chancellor and some good support, but there were also people unhappy that the paper and I escaped.
The point is, that it can happen to anyone, or as Swaim told me, “It’s really important for all of us (student journalists/media outlets) to be in this together because we are all in this together. An attack on one college newsroom is an attack on all college newsrooms.
With that in mind, I’d ask that you let the people at WSU know what you think of this situation.This is Teri Hall, WSU’s vice president of student affairs, who was the administrator in the meeting where the funding was cut and the person who aided in the closing of the funding meeting. Click here for her email address and let her know how you feel about the issue of open meetings and their importance, or whatever else you have to say about The Sunflower situation. Or call her at: 316-978-3021 and have your voice heard.
This is Paige Hungate, WSU’s SGA president, who said, “I’m not trying to have a discussion about this right now. I’m just trying to tell you what our decision has been made by student government association” as a legal rationale for closing a meeting in violation of KOMA. She based this decision “according to discussions with people.”You can email her office here and express any concerns you have about this situation as well or call her office at 316-978-7060.
You can also contact anyone at the WSA SGA from this page and express yourself, explain how open meetings work or generally let them know what you think about these actions.
This is John Bardo, WSU president, who wrote to Hall that the meetings should be kept open. You can email him here to thank him for a commitment to the First Amendment as well as state law. You can also let him know that you are paying attention to all this now, in case he decides to waffle after nobody’s looking. His office number is 316-978-3001 in case you’d like to chat with him.
Finally, this is the website for The Sunflower, Chance Swaim’s office email address and the paper’s Twitter handle. Feel free to hit these folks up on any one of these platforms to let them know you support them. When the OSA was kicking my ass all over the place, the one thing that kept me sane was knowing people out there cared. It meant more than anything. I’m sure The Sunflower staff will appreciate it as well.
The Associated Collegiate Press hosted its annual “Best of the Midwest” convention in Minneapolis this weekend, where hundreds of students from around the area got the chance to learn all sorts of great information about journalism. I usually find myself running from presentation to presentation or conducting newspaper critiques all day, thus leaving no time to catch other presentations. However, I caught a lucky couple gaps in my schedule Friday and got to see two sessions on open records and interviewing from some student journalists at UW-Milwaukee and their instructor, Jessica McBride.
The UWM folk, who produce content for MediaMilwaukee.com as part of their coursework recently published an extremely detailed story on sexual misconduct accusations on their campus that appeared to be swept under the rug. Based on their experiences here and in other work in hard-nosed reporting, these journalists provided some great information on how to go after the tough stuff. Here are five cool things about these issues that I learned from their presentations:
Content matters more than format when it comes to records: McBride noted that although states vary on how public record laws work, in her home state of Wisconsin, the law dictates that it is the content of a record, not the format of a record that determines if it is open or not. “I once got a stack of pink messages slips a secretary took notes on,” she said during her speech. She also explained that in some cases, text messages, emails and handwritten musings can count as open records, so don’t limit yourself when you request. (One of the student presenters noted that she had inadvertently limited her request to “formal complaints,” which yielded no results. A second pass at the request with the word “formal” eliminated got her a document or two.
Give yourself room to negotiate: I had never conceptualized of open-records request being like the way I approach buying stuff at a rummage sale, but this session gave me some food for thought. McBride said she often starts with a wider request, as in a larger swath of documents she asks for or a longer period of years than she might normally want. If the record keepers provide her with resistance because the request is too broad or request a large amount of money to meet the request, she often then narrows the focus to what she really wants. This prevents her from losing out on documents that she really wants but demonstrates a willingness to “meet people half way.”
Go as a person. Be polite, respectful and firm: Nyesha Stone mentioned this during the panel she presented with fellow students Jennifer Rick and Talis Shelbourne. Stone mentioned that she used to feel awkward in asking for interviews or documents, but once she started thinking about the importance of the information she was seeking, she started feeling less anxious in some cases. (One of the students, I can’t remember who, mentioned that although repeatedly asking for documents or interviews helped diminish anxiety, they imagined that even veterans of this stuff never fully get over nervousness. She’s right, at least from where I’m sitting.) What helped her was to go talk to people as a person, she said. You want to be polite and respectful but also firm in your purpose. It opened a lot of doors, she said, and made her feel like she was getting somewhere.
“The cheapest possible option:” As we’ve noted in the book and throughout the course of the blog, people who hold records and don’t want to give them to you will put up roadblocks in a variety of ways. One of the biggest ways is by trying to overcharge you for records and “research time.” McBride recommended that you ask for more recent documents first, as those are the least likely to be stored away somewhere that will require a lot of “research” to find them. She also mentioned something important: The people who hold the records have to lay out how much they think this will cost and how they came to that conclusion. In a lot of cases, research is based on X hours times whatever the hourly rate it costs for the person who does the digging. When this happens, she said, the people need to find the cheapest possible person eligible to find the records to do the digging. In other words, they can’t figure out what your chancellor’s salary is per hour and use that as a financial benchmark for the research costs. In addition, she noted that in Wisconsin, you receive the first $50 worth of location time for free.
“Write about it. You’ll get the records:” The other way in which people will try to block your access to the records is by trying to wait you out and make it feel pointless to access the records. They try to out-wait you because they know you are likely to have a limited time to fight or that students will eventually graduate, so the requests will just die off. One of the key “helpers” you have when it comes to trying to crack that nut is the Student Press Law Center, which we’ve discussed here earlier. They can provide some legal guidance and legal muscle as needed to prevent record keepers from taking advantage of students. McBride also noted that writing about the process and the reticence of the organizations to produce public records can help draw attention to the situation and shame organizations into doing the right thing.
(Editor’s Note: I’m a huge believer in student media and the benefits it has for student journalists as well as campus audiences. When a big story breaks on a campus, I like to chat with the students who made the story happen to get the “backstory” on the piece.
Today’s conversation is with Aidan Quigley, a senior journalism major from Trumbull, Connecticut and the editor-in-chief of The Ithacan at Ithaca College in New York. He has worked on the paper since his freshman year, and has served as managing editor, news editor, assistant news editor and staff writer. He has also interned at Politico, Newsweek, the Christian Science Monitor and the (Waterbury, CT) Republican-American. If you or your staff has a big story and would like to shed light on how you made it happen, contact me and we can take a look-see at it.)
Shirley Collado, the school’s president, and the school’s board of trustees issued statements on both the incident itself and Collado’s fitness to run the school in advance of the story they knew was coming. Quigley said this move prompted the Ithacan to publish the story a half hour after the president released her statement, although it had been in the works for more than a month.
“President Collado released a statement on Tuesday night that pre-empted the publication of our story, which was planned for the next day,” he said. “After we were aware that she had sent her statement to the community, I thought it was essential that we release our story, which included the patient’s side of the story — the allegations made against Collado — to add context and information to President Collado’s public statement.”
Quigley said the paper received a package of material from an anonymous source in December regarding the Collado case. He then got the full case file from the Washington, D.C. Superior Court and began digging.
“Winter break provided me an opportunity to really dive deeply into the reporting, in identifying and speaking with sources, filing public records requests and continuing to do research into the legal and ethical issues involved,” Quigley said.
The university was also helpful in getting information from key sources, he said.
“We received no push-back from the college while pursuing this story, and the college helped arrange interviews with President Collado, Tom Grape (chairman of the Board of Trustees) and Jim Nolan, who led the search committee,” Quigley said.
“An unexpected twist we ran into was Collado’s decision to pre-empt the story with her statement,” he added. “We were planning on publishing the story the next day, so while the pre-emption caught us off guard, we were able to react quickly and publish the story shortly after the release of her statement.”
[O]ne of my former patients who struggled with significant psychological disorders and had been in and out of treatment sought me out for help. She didn’t have anywhere to go, and I went out of my way to help her. But it backfired when I decided I wasn’t in a position to help her after all and that I needed to focus on getting through my grief. She ended up making claims against me. Unfortunately, this is the risk that many therapists and practitioners face when working with trauma patients or individuals challenged by serious psychological disorders. I fought the claims for a while, but I didn’t have the resources, social capital, or the wherewithal to keep going. I was in my 20s, and I had just tragically lost my husband, so I decided to take steps to end the legal action so that I could focus on taking care of myself and moving on with my life. It was a very difficult decision, but it’s the kind of decision that young people face daily when they feel they have no options, no resources, and no outside support.
Compare that to some of the revelations the Ithacan published:
Prosecutors argued Collado took advantage of a vulnerable, sexual-abuse survivor with mental illness by entering into a monthslong sexual relationship that started when Collado was the patient’s therapist. Collado denies having any sexual contact with the patient.
<SNIP>
The patient was receiving therapy for post-traumatic stress at The Center, as she had previously been sexually abused by a doctor — who was convicted for the abuse — and as a child, according to the prosecution. The patient, who was 30 years old at the time of the court case, was diagnosed with having bipolar disorder and a dissociative identity disorder and had experienced lengthy periods of deep depression and suicidal thoughts, Marcus-Kurn wrote.
The patient alleged that she began a sexual relationship with Collado on May 20, 2000, which lasted until October 2000, according to the prosecution. Marcus-Kurn wrote that the patient recorded encounters with Collado in a journal that was submitted to the court but is not included in the case file.
<SNIP>
The patient alleged that she had participated in a three-way sexual encounter with Collado and an adult male on Sept. 9, 2000, according to the prosecution. The patient alleged Collado told her it “would be psychologically helpful for her.” The man and Collado denied that the interaction had taken place.
<SNIP>
The patient did express her feelings to Marcus-Kurn over the telephone. Marcus-Kurn wrote that the patient said the following:
“It brings on such immense pain and it is very, very intense feelings of confusion. I start hearing her calling her name, I start smelling her, I start remembering her telling me that it would be good for me to sleep with (name redacted) , and I remember being raped, and I have blocked that all out and I’m afraid that it would kill me if I start dealing with it right now. She has hurt me beyond belief and it’s like so bad that I can hardly touch it because it hurts so bad. I have to take it really slow. I know that I feel a lot inside but I’m not really sure what all of those feelings are because I try really hard not to feel them but I know that they are painful as hell. I literally feel that I will fall apart every time I think I’ll deal with it. And it hurts too much. And I’m really angry that she slept with me and that she convinced me to sleep with her boyfriend and I feel that I was raped and that there is nothing I can do with it because I believe it isn’t against the law in D.C.”
In the wake of the story, the discussion on the Ithaca campus has been centered around The Ithacan’s approach to the story and how it came about, Quigley said.
“While the initial reaction has centered around our decision to publish the story and the identity of the whistle-blower who sent us the information, I’m hopeful and optimistic the community will engage at a deep level with the complicated issues the story presents,” he said.
As for the “big take away” he and his staff had after working through this story, Quigley said he found it is important to dig deep on stories that matter to a publication’s readership.
“I think it’s important to write these type of difficult stories in a straightforward, nuanced and balanced way. It’s important to write stories you can stand by and let the reporting speak for itself,” he said.
Open records and open meetings laws are among some of the most powerful tools available in trying to figure out what is really going on with many public institutions. Many big stories come out of open record requests and document digging. SMy favorites include the Journal-Sentinel’s “Cashing in on Kids” series, which looked at the way some people were gaming the state’s childcare system, and a series the Sun-Sentinel did years ago on deaths associated with plastic surgery.
Open records requests are great tools because while people can deny things or decline to comment on issues, documents are pretty much the unvarnished reality in black and white (if you’ll pardon the pun). Here are a few recommendations for you if you are taking your first steps into this area or you are a pro at this and want some validation:
File frequently: Much like any other mechanism or muscle, open records efforts don’t work well if the system has atrophied. The more of these requests people see, the more likely they are to know how to address them properly. This doesn’t mean turn your record keepers’ office into a paper dump every day, but consider doing a couple requests a month to see what you can find and to get the offices you want to use used to how this works.
Follow up: States have various rules pertaining to how long they have to get back to you or to fulfill your requests. In some cases, they spell this out while in other cases it’s “as soon as reasonably possible,” which is akin to when your parents used to say “We’ll see” when you were 6 years old asked if you could get a pony or a rocket ship. As the deadline draws near, check back via phone or email with the record keeper to see where your request is.
Don’t back off: When people tell you “no,” that doesn’t mean you are done. In some cases, people will say no for no good reason. Again, the answer has to be rooted in law and completely explained. This can’t be like when you were in high school and you asked for something and your parents just said “NO!” and when you asked “Why?” they answered “Because I’M A PARENT! That’s WHY!” Maybe mom and dad could get away with that but public officials can’t. Make sure the law is clearly stated and that they aren’t trying to snow you. (One open records case we dug into found the university’s lawyer telling us that they didn’t have to produce the documents under some obscure Indiana state law. It turns out they basically were trying to assert that information they wanted to share with the entire campus, but not the newspaper, was an “internal memo” not meant for public consumption. The state arbiter eventually ruled in our favor, but it was because we pushed the issue and didn’t take the first “no” for an answer.)
Ask for help: Students often feel they get the shaft on this kind of stuff because the state, the university or whatever public institution has resources beyond their reach, including access to legal advice. If you can’t afford Ramen and Diet Coke at the same time, how the heck are you supposed to afford a lawyer? The answer is that the Student Press Law Center can offer you some assistance. They have experts on duty to give you free advice on how to proceed. They can also arrange to get you a lawyer in some cases to help you pursue your quest. (Again, disclosure, they’re helping our paper out in this case and I’ve chipped in to them on more than one occasion.) You can find the group’s website here. It’s full of all sorts of great information, including how to file a request, what states are doing what in regard to the law and stories about students fighting the good fight for open access to stuff. It’s worth a read.
This is Teri Hall, WSU’s vice president of student affairs, who was the administrator in the meeting where the funding was cut and the person who aided in the closing of the funding meeting. 
