Crime Coverage Summit Highlights: FOIA And Dealing With Police
By Anne Godlasky and Hope Kahn
National Press Foundation
Mark Walker, an investigative reporter for The New York Times who also served as its FOIA coordinator, spoke to NPF and RTDNA Crime Coverage Summit 2023 journalists about how to get the information that law enforcement doesn’t make readily available.
Mickey Osterreicher has been a photojournalist for 50 years, with first-hand experience at crime scenes, natural disasters and protests. As the general counsel to the National Press Photographers Association and member of the Media Law Resource Center, he trains journalists and police on the First Amendment and journalists’ rights. He also spoke to the Crime Coverage Summit journalists about their rights dealing with police.
Here are some important takeaways from their sessions.
Five Records Requests Every Reporter Should File
- Incident reports. “I always ask for calls for service and incident-level data. I always ask for three to five years of it, because I want to see not just the arrest, I want to see every call that went out about it,” Walker said.
By doing this as a reporter in Sioux Falls, South Dakota, Walker discovered that a death police had initially closed out as a drowning was later investigated as a killing with the suspect on the loose.
- Attorney General’s investigative files. “Every time there’s an investigation that goes to the attorney general, I always put in the FOIA to get a copy of it. I want to see what the determination actually was, all the evidence that was collected, all the people who were spoken to … I’m going to go back and usually re-interview all those folks.”
- Traffic crash data. “You can use this to write about police chases, crashes,” Walker said, advising that journalists save their FOIA and file at a regular interval to “stockpile” the data for a better longitudinal analysis.
- Cold cases. Request your police department’s cold case list. “I know police departments like to say, ‘here’s an active investigation, we can’t turn over all the information.’ These are completely fair game because the case is closed, they’re currently not investigating, so you can actually get all the documents related to these cases turned over to you.”
- Officer records. “I get the names of everybody who works at the police department because you never know some of the things that are going to happen … there’s issues right now with police officers committing bad crimes and then getting hired in other states, and so when this new person is hired, I would always immediately dig into that person and see where they came from, what their record was.”
Negotiate down FOIA costs.
For many newsrooms facing budget restraints, the difficulty isn’t filing FOIAs, it’s the price tag that comes back.
“One thing I always ask for up front is a fee waiver. One, if you do ever do a FOIA, you’re guaranteed to get all the fees waived, if any federal agency ever tells you otherwise, they’re lying,” Walker said. “I hop on the phone and I spend a lot of time talking to the FOIA officers when they send me bills. The first thing I ask for is a detailed breakdown of how they arrived at the price.”
Walker can chip away at the price by requesting that the lowest paid qualified person is handling it, by asking that they exclude certain domains if it’s an email search (for instance, nothing from @target or @walmart to cut down on the number of junk email files). By going through it with the FOIA officer, Walker says he’s gotten initial costs of tens of thousands of dollars down to $20. Reporters Committee for Freedom of the Press also has a hotline to help with these issues.
He also recommends asking for the FOIA logs because if the records were produced for someone else (most FOIA requests come from lawyers and businesses), that record will be free and available almost immediately.
The First Amendment protects the freedom of religion, speech, the press and protest.
“But the First Amendment isn’t absolute, it’s what’s known as being subject to reasonable time, place and manner restrictions,” Osterreicher said.
Time, place and manner restrictions must be content-neutral; narrowly tailored; serve a significant governmental interest; leave reasonable alternatives and avenues of communication.
But you can film the police. “Although the Supreme Court has never ruled whether the right to record police officers performing their official duties in a public place is clearly established,” he said, there have been rulings in the district court of appeals.
“Here in this country, anybody with a camera that’s recording them is seen as suspect. And then again, I could stand here and show you all of the headlines of settlements that cost taxpayers hundreds of thousands of dollars to settle cases that should have never happened in the first place,” Osterreicher said.
Just a sample of those referenced:
- ACLU gets $825K payments over journalists’ treatment in Minnesota
- County to pay $280K to journalists tear-gassed in Ferguson
- Photographer Wins $345K Settlement Over Unlawful Arrest
The case Irizarry v. Yehia (pdf) ruled that the First Amendment protects the right to film the police performing their duties in public.
“In New York, there is a Right to Monitor Act, and it’s been put into in the New York Civil Rights Law, which gives a cause of action if people and journalists are interfered with by police for recording them,” he said.
In California, CA Penal Code 409.7 also protects journalists’ rights to work in police scenes.
“When all this rain was happening out here, mudslides, earthquakes, forest fires, and they would close off the area and they would normally say, journalists can’t go in,” he said, but Penal Code 409.7 says that a journalist may enter.
Mickey Osterreicher spoke on behalf of the MLRC Institute under a grant from the Knight Foundation.
Crime Coverage Summit 2023: Beyond ‘If It Bleeds, It Leads’ was sponsored by Arnold Ventures and hosted by NPF and RTDNA. This content originally appeared on the National Press Foundation’s website. You can view more of their content here.