By Megan Brockett
Every year masters students in the Media Law class at the Philip Merrill College of Journalism are asked to find an example of a story that relied heavily on information obtained under an open records request and to then interview the reporter about the experience obtaining the records. Megan Brockett interviewed Washington Post reporter David Fallis who filed requests under the District of Columbia Freedom of Information Act for two investigative reports on guns: “Hidden Life of Guns” in 2010, which documented the paths of firearms in the United States, and “Sea of Steel” in 2013, which reported that D.C. and Prince George’s County authorities had seized close to 50,000 guns since 2000.
Here are excerpts from that interview.
AJR: Did you have a particularly hard time obtaining the information and databases you needed for the “Sea of Steel” story?
David Fallis: [In] the original series that we did, “Hidden Life of Guns,” we had to fight to get records…The databases that we got for the ["Sea of Steel" story] were databases that we had [first] obtained back in 2009, 2010, [and] we ran into problems this year when we re-requested them. [There] is a database of guns that the police department in the District of Columbia uses to keep track of the guns that they recover in criminal investigations. Every time they find a gun…they have to fill out a document on the gun…and then that gun goes to what’s called a Firearms Recovery Unit and they log the gun into a database.
In late 2009…I requested that data set because what I wanted to compare it to a database I had obtained from the Maryland State Police of guns sold. I wanted to… match those two databases up and look at all the guns that D.C. police was recovering and find out originally where they were sold, if they came out of Maryland…I filed a [request] under District of Columbia law … I said, “I want a copy of this database. I know that from my interviews it dates back to at least the early 1990s. Here are the fields of information that are in the database as best as my understanding – and I’ve listed them… and I want all years of the database through the date that I’m filing this FOIA, and I want it in electronic format or the format that it’s maintained in.”
In short order I got a response back from their FOIA officer who said, “Here is one year of gun recoveries, and here’s the PDF file,” which was basically just an image file of all that. And I called him up, and I said, “This isn’t what I asked for, and by law … you’re not responding to the FOIA correctly. It’s pretty clear in the D.C. Freedom of Information Act that you’re entitled to select the format, especially if it’s already in that format …I also asked for all years, and you’re only giving me one year.” And they said, “Well that’s fine, but this is what we’re comfortable giving you.” And I said, “…Comfort or your desire or your whim or whatever, the law doesn’t address that.” You can’t pick and choose how to respond to the FOIA, based upon your whims.
AJR: Did they give you any reasons why they were uncomfortable releasing the rest of the information?
Fallis: “Uncomfortable” is my word, but the response … was basically a one-line email [that] said something [like] … “This is what we decided to give you.” It didn’t give me a good reason … I knew immediately that there’s no way that could withstand a challenge. Since I don’t work on daily deadlines, I had the luxury of filing an appeal, and so … I got together with one of [our] attorneys, and we filed a pretty simple, straightforward written appeal to what they call the Mayor’s Correspondence Unit. We didn’t file it in court; we just sent it to them directly… We cited the law…and basically said we were entitled to the electronic version of the records, and we pointed out that nowhere in the law says that they get to decide the time frame, that’s up to us to request the time frame for the records that we want. About two and a half months later, the general counsel for the metropolitan police department emailed me the full database.
AJR: How much research do you put in before you even file the request?
Fallis: The first thing you do is make sure the records you think might be there exist. I knew that the District was recovering lots of guns, so they had to have some way to organize the information. So I called the Firearms Recovery Unit back in 2009 and just interviewed them, not for a story but for myself – “Hey, what do you guys do? When the guns come in, what happens?” … I also called the property room where the guns end up eventually, and sounded them out …So I had a pretty good understanding of how the data was organized before I ever filed a FOIA, and I would say in 99 percent of the cases I do that… If you don’t find out, A, who the custodians are, and, B, what format the data is in, what is really there, what’s not there, how is it retrieved, how can it be searched, is it printed out on paper, is there an electronic version, is it a database, is it a spreadsheet, is it just on one computer, is it on 80 computers…If you don’t do that it will just slow down your requesting process dramatically…and you are basically at the mercy of the people who have the data, in terms of their disclosure. The more the reporting that you do at the front end, the bigger stick you wield in terms of forcing them to give it to you, because they can’t say it doesn’t exist if you know it exists.
Another pretty common rookie mistake is using the wrong language to ask for something. They come back and say, “Well there’s no responsive records,” and it turns out that you asked for a Red Delicious apple and all their apples are Pink Ladies … You were asking for an apple, but you didn’t say Pink Ladies, you said Red Delicious. And that’s real common, especially if they don’t like you, or they feel like you’re attacking them. Sometimes they’re going to go out of their way to play word games … I always try and figure out, “OK, if I had to stand up in court and this FOIA became the subject of a lawsuit, did I write it clear enough? Was I overreaching? Was I hostile? Am I being clear? Is the law clearly cited?” Because if some judge is sitting there trying to make a decision about whether they withheld records or denied your request inappropriately, that records request that you filed becomes your foundation for your entire case, so that’s why you need to put in time into those FOIAs before you file them.
AJR: Once you get these big databases, how do you go about sorting through all that information and figuring out where your story’s going to be?
Fallis: I use software to analyze them… You can take databases and match them up against other databases that were never meant to be compared … It’s not like you just get the data and sit down and in an hour you’ve got a bunch of story ideas. It’s usually a process that’s sort of like archeological digging, where I just sort of excavate and come up with other ideas.
AJR: Do you have any advice for someone looking to file his or her first FOIA or for someone dealing with an agency that’s giving him or her a hard time?
Fallis: The first piece of advice is read the applicable law very carefully, because you will be surprised – my experience has been these agencies don’t necessarily know the law, or they don’t care about the law … The second step is really researching to make sure you understand what you are asking for and if it really exists and how easy or how hard it will be for them to get it, because you need to have a little bit of a sense of that, … otherwise they can just say, “Oh, this really hard and burdensome, and we’re going to charge you $80 million for it.” The more information you have, the harder it makes [it] for them to squirm around and deny a request or try to drag it out.”