Partnering with local media to do a class FOI project

In the past year, Jonathan Groves and I both did open records projects with our classes that went beyond the usual “make students file an FOI request” assignment. Dr. Groves, with his students at Drury University in Springfield, Missouri, sought documents from local schools on mandatory reporting under the Missouri Safe Schools Act. My class at TCU sought vaccination exemption request information from elementary schools in the Fort Worth ISD.

The goal of these projects was to partner with a local journalist to use the information gathered by dozens of students as part of an investigative reporting project. Coordinating with local news media allows for some real-world investment by students, while also building connections between journalism schools and the community. By meeting with an education reporter or investigation team editor before the semester to see what kind of projects they may be interested in, we were able to come up with a relevant and timely topic, with the power of 25 to 30 students each filing individual requests that a single reporter would be unable to do. Then, the professional reporter can take the results of those requests to inform an investigative story about local schools – always a high-level topic of interest to readers in the community.

Here’s how we did it, step by step:

Step 1 – Coordinate with local news media

The first step can be the most challenging. You need to set up a meeting with someone at your local news media outlet to be your partner on the professional side. I met with the executive editor and the investigations team editor over coffee to talk about some potential ideas. We brainstormed to find things that (a) would be of interest to their readers, (b) were not records that were readily available in compiled form, (c) involving simple enough records requests that could be responded to in a 16-week semester, and (d) could, with some work, turn into a story depending on what we found.

In my case, we got down to a few topics, mostly in public schools coverage. The newspaper used to have a team of 8-10 education reporters about a decade ago; now, it was one or two, with education sometimes assigned out to general assignment reporters. They were not going to have the kind of time it takes to invest in a months-long FOI project requiring dozens of requests when it’s all they can do to cover the school board meetings in the region.

Once we narrowed down to a topic – student vaccination rates at elementary schools, of which there were 81 in our district, and no central hub for reporting or collecting those at the district or state level – I worked with the students to learn about FOI and our project.

Step 2 – Teach about FOI

This is the usual module in a media law class where we talk about open records laws. I like to use Cuillier & Davis’ The Art of Access to give tips on making requests, and then provide links to useful websites with letter templates, such as NFOIC.org or, because we are in Texas, foift.org. I did this in week three of a 16-week semester, after letting them know we’d be doing the project in week one. This can also be a good time to bring a reporter to your class to talk about how he or she uses FOI and what they hope to get from the project you’re working on.

Step 3 – Give assignments

A level of specificity is helpful here. In the past, we’ve allowed students to come up with their own topics for requests, which sometimes means they want FOIA the federal government about Area 51 or other things that will never, ever result in a responsive, meaningful request. In the vaccination request assignment, I gave each students three public schools, and sent a list of addresses and principals that the school district already had publicly available.

Step 4 – Students draft and send letters

This needs a deadline for a grade so it gets done. In our case, that was week five of the course. We talked about it in class, and students can help each other with the requests. I looked at letters in advance if students asked, but did not read every one until they had been submitted for a grade. Then, I gave tips in case something was in error – for example, if the student used a federal FOIA template instead of the state records law template (this happens quite frequently, despite me telling them not to do this several times).

Step 5 – Students follow up and negotiate

Was the request received? Is it being acted on? These are questions reporters have to do when FOI requests are made, and students get the chance to make a call or schedule an appointment with the school staffer who has to handle their request. They often hate to do this – students do not like talking on the phone, and their emails often are ignored. But it’s an essential part of the process. Email alone often isn’t going to get the job done.

Some students will also get lucky and receive records quickly. Within two weeks of letters being sent out, make time in class for students to talk about their successes and struggles.

Step 6:  Students discuss and reflect

This is a gradeable part of the assignment. I’ve done this as a series of blog post requirements (one introducing the topic, one with the actual requests, two on the negotations and hopefully reception of documents, and a final reflection) or short reflection papers. It’s a place for students to get used to documenting their experiences seeking records. You can make these due throughout the semester, every few weeks, with a final post/paper due in the final weeks of the course. Here’s a good example of a student blog on the FOI project seeking vaccination data.

Step 7:  Students get records or final denials

By the end of the semester, after 10-15 weeks of writing and negotiation, either students will have the records, or they’ll have a denial, or they’ll have been ignored for so long that it’s worth writing about. This is the source material for the story that the local news reporter will work on. If students are able or interested, they can gather the information or data and work with the reporter on the next steps – what story do the records tell you, and what more reporting needs to be done to put that data/information in context? This may also involve data cleanup and analysis, or perhaps building a spreadsheet.

And if some public officials are non-responsive or give a final denial, that’s a part of the story, too!

Step 8:  Local journalist writes story using the data/information from the project

Remember that this takes time and may not be done until the following semester; an investigative reporting project isn’t done overnight, and pure data from records alone does not make a complete story.

In the vaccination version of this project, the Fort Worth Star-Telegram wrote this story using the data.

 

 

 

 

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Thomas wants to kill Times v. Sullivan, but it’s not time to panic. Yet.

Vince Filak, a journalism professor and my friend since our days as editors at the Columbia Missourian, wrote on his blog about the general media law community freakout in response to Clarence Thomas’ oddball behavior yesterday.

In short, the Supreme Court denied certiorari in a woman’s case defamation lawsuit against Bill Cosby, an unsurprising result. But Thomas seized the moment to take a dig at New York Times v. Sullivan, a landmark First Amendment case that has made scurrilous lawsuits against the press more difficult in the 55 years since it was decided. Thomas wrote a separate concurring opinion, agreeing that cert should be denied, but for his own reasons.

Those reasons: Times v. Sullivan has no basis in the First Amendment and thus should be reconsidered.

Now, it’s no huge surprise that Thomas would do something like this. After all, he wrote another out-of-left-field concurring opinion back in Morse v. Frederick (the Bong Hits 4 Jesus case) in 2007 in which he basically said Tinker v. Des Moines, the bedrock of free speech rights for public school students, was wrongly decided. That’s as backward as this decision was.

I’m not too worried because nobody else has joined Thomas in these moments when he decides that decades of American jurisprudence on First Amendment law are no longer satisfactory to him. But it does create a bit of an “Overton Window” situation — one in which the sorts of things that could never be spoken in polite company before are now on the table as potential areas for discussion because someone as high profile as Thomas dared to speak them.

But I do think there’s a chance that dyed-in-the-wool Republican judges like Gorsuch and Kavanaugh, both Trump appointees, neither of whom seems too inclined to buck the guy who put them on the court, could join Thomas on the Quixotic campaign to “open up the libel laws,” as Trump has often threatened to do. I tweeted out a threat on Kavanaugh’s potential to upend Sullivan last fall:

Perhaps Alito, a wild card on First Amendment matters, could join up as well. He’s the lone dissenter in Snyder v. Phelps who would’ve allowed the family’s multimillion-dollar verdict in its lawsuit against the Westboro Baptist Church to stand.

That’s still only four votes, though, and I don’t see Roberts joining that bunch. Another Trump appointee might, and that’s when things get dangerous.

Some Texas Open Meetings Act questions and answers

Tommy Thomason, a journalism professor colleague of mine here at TCU who also serves as director of the Texas Center for Community Journalism, has sent a couple of questions my way regarding the state Open Meetings Act.

These questions come from reporters and editors at community newspapers across the state, and I try to help out as I can. Sometimes, it is stunning to hear how local government boards and committees violate obvious provisions in the law.

Here’s one, posted on Feb. 8:

Question: A city council appointed tourism board requested an organization come to town and give them a presentation, with q&a afterwards, on how they could and could not spend Hotel Occupancy Taxes (HOT). The board invited city council members and had the intent to invite the general public, but invited only a subset of the community. At the presentation, a quorum of the board was present. Members of the board asked questions of the presenter. Questions included examples of ways they had spent and planned to spend HOT funds. No meeting notice was posted about the event. Was this an Open Meetings Act event or not?

Answer: 

Yes, if a quorum of the board is present, and they’re deliberating (which this appears to be) or receiving information and asking questions of a third person (which this also appears to be), then this is a “meeting” under TOMA. See the definition below.

(4)  “Meeting” means:

(A)  a deliberation between a quorum of a governmental body, or between a quorum of a governmental body and another person, during which public business or public policy over which the governmental body has supervision or control is discussed or considered or during which the governmental body takes formal action; or

(B)  except as otherwise provided by this subdivision, a gathering:

(i)  that is conducted by the governmental body or for which the governmental body is responsible;

(ii)  at which a quorum of members of the governmental body is present;

(iii)  that has been called by the governmental body; and

(iv)  at which the members receive information from, give information to, ask questions of, or receive questions from any third person, including an employee of the governmental body, about the public business or public policy over which the governmental body has supervision or control.

(emphasis added)

Here’s another, answered on Feb. 12:

Question: We have a school board who (at every regular meeting) meets at 6 p.m. in a called executive session. They come out of executive session at 7 p.m. and enter open session of their regular monthly meeting. This is unlike any body I’ve ever covered. Generally, executive sessions come at the end of the regular meeting and are only entered if needed. Many times they are deemed not needed. This board, on the other hand, religiously has executive session before the called meeting. Is this kosher?

Answer: The Open Meetings Act requires meetings to start in open session. The law could not be more clear about this. See below.

Sec. 551.101.  REQUIREMENT TO FIRST CONVENE IN OPEN MEETING.

If a closed meeting is allowed under this chapter, a governmental body may not conduct the closed meeting unless a quorum of the governmental body first convenes in an open meeting for which notice has been given as provided by this chapter and during which the presiding officer publicly:

(1)  announces that a closed meeting will be held; and

(2)  identifies the section or sections of this chapter under which the closed meeting is held.

Comment for NBC News on Bezos extortion by National Enquirer

I had a chance to give a quick comment to Jason Abbruzzese, the senior tech editor at NBC News Digital, regarding Jeff Bezos’ revelation yesterday of extortion attempts by the National Enquirer. Story by Dylan Byers here:

My comments are at the very end of the article. After reading more about it, I’m not as certain that the AMI actions are going to wind up with extortion charges, but I’m not sure that’s inaccurate either. It’s the law. It’s complicated. But undoubtedly AMI is in the wrong here, and its efforts to stifle investigation by the Washington Post into itself, the Trump administration, Saudi Arabia, and Russia, are intimidation of legitimate journalism of a public concern.

NBC-Bezos

Problems with encrypted police scanners

My friend Jon Peters, an attorney and professor at the University of Georgia who covers legal matters for Columbia Journalism Review, asked me for a comment on encrypted police scanners and some of the freedom of information and transparency problems they pose. His story is here, and I was thrilled to have my comment included in his tweet about the story.

Here’s all of what I had to say:

If you’ve ever worked in a newsroom, you know how important the police scanner is to covering a community. You always have a reporter with an ear on the scanner, and they can respond quickly to cover emergency situations as they happen. Encrypting all police communications essentially eliminates that ability to respond. You can’t get out to cover something if you don’t know it’s happening, and journalists would be at the mercy of police public information officers. Do we want the first draft of history dictated by police PIOs? It looks like another attempt by public employees to go dark, the exact thing they criticize criminals for doing, and telling journalists and citizens to trust them, it will all be OK. The American experience teaches us that this rarely works out in the public’s best interest.
Sure, there are some public safety arguments here. You may have criminals using the scanner to avoid police responding to a scene, for example. But that’s why emergency responders such as SWAT teams can flip over to an encrypted channel when situations call for it, and I don’t think journalists would argue against that ability. But the default should be open communications, with the exception being used in limited, dangerous circumstances, rather than closing all communications from public oversight because somebody might do something bad with it.

USA Today allows itself to spread pro-Trump propaganda for some reason

While it’s quite true that Donald Trump has turned the normal media and politics worlds upside down, it’s frustrating to watch news media companies demonstrate how inept they are at dealing with these changes.

USA Today gave Trump, or at least his ghost writer, access to the editorial page to publish a lie-infested screed about health care that was little more than a campaign ad against Democrats, Obamacare, and “Medicare for All” proposals.

As I said on Twitter:

I was glad to talk to Jason Abbruzzese at NBC News for the story below about these missteps by USA Today. We shouldn’t be party to furtherance of disinformation, even (and perhaps especially) when it comes from the highest powers in the land.

My comments:

Chip Stewart, professor of journalism at Texas Christian University, said USA Today and Trump do not bear any legal issues with regard to printed falsehoods, but said he felt the paper had given the president too much leeway.

He noted that newspapers often provide a wide berth to powerful people who offer to write for their op-ed pages, but that Trump poses unique challenges to existing norms of journalism.

“When you know the president is going to be using your pages for partisan purposes and is going to more than just stretch the truth in doing so, you really ought to go back and run a fact check on that or have an editor’s note in there saying that some of those things aren’t actually true,” Stewart said. “It just seems negligent on behalf of USA Today not to provide some check to that.”

Comments for NBC about libel suit against Elon Musk

 

Elon Musk seems incapable of shutting his mouth when people say things he doesn’t like, and he particularly dug in when picking a fight with a diver who took part in the rescue of the Thai kids trapped in a cave. Musk called them, well, go read for yourself.

The diver, Vernon Unsworth, filed suit in federal court in Los Angeles, basically after Musk dared him to.

Here’s the story. My comments are at the end.

My full comments:

Elon Musk has practically been begging to be sued for libel on his claims. Now he’ll get his day in court.

You don’t get much more “libel per se” than accusing someone of being a child rapist. It’s not hard to imagine a jury finding presumed damages here. And if Unsworth can show malice, again not hard to imagine, probably punitive damages, too.

It does mean Unsworth decided to put his personal life on the line for what would be a very public trial. Whatever Musk thinks he knows about him, he will throw that out in his defense. It could get very ugly for all involved. That’s libel litigation, though.

I didn’t win the big award, but the right person did

I remember when I saw the email come around from the chancellor’s office, copying in other nominees for the Chancellor’s Award for Distinguished Achievement as a Creative Teacher and Scholar. I saw the other names, and I thought, dang, I wouldn’t even vote for me.

Sure, I’m not a terrible candidate. Though I’ve been at TCU for only 10 years, I was promoted to full professor last year and did lots of pretty good teaching and research, even though I was a full-time administrator for the past five years. I’ve been cited in amicus briefs and a court opinion, and I’ve won a few awards. I’m proud of all that. Here’s the letter (with some edits) I submitted to the deans for consideration.

But that’s nothing compared to my friend and colleague Debbie Rhea, a professor of kinesiology whom I got to know through our time together at many meetings as fellow associate deans.

I mean, her research on keeping kids active throughout the school day to improve learning has been implemented in several school districts, and it was featured on the Today Show. If I had a vote, it would have gone to her.

Anyhow, I was surprised exactly zero percent when the chancellor announced her name at the Fall Convocation. And I was thrilled for her. Plus, it’s the second straight year that an associate dean has been honored after Joe Butler from Fine Arts last year, so that’s all good for our little club.

Here’s the story from the TCU public relations office. It was a huge honor to be nominated, especially under the circumstances I was dealing with in the spring, and I was thrilled to be recognized. Maybe in another 10 years, I can be a more worthy candidate. I plan to give it all I’ve got.

 

 

Politifact comment: Throttling California firefighters and Net Neutrality

Santa Clara firefighters said that Verizon throttled them, causing public safety issues while they were fighting wildfires, and blamed the FCC’s net neutrality repeal for it. John Kruzel from Politifact said that claim was “half true,” and I agree.

I was glad to see other media law and policy folks were in agreement with me on this. My full comments are below.

As is the case with legal questions, it’s a bit murky.
1. I do see a link between the net neutrality repeal and Verizon’s throttling of the Santa Clara County firefighters, but it’s not completely cause-and-effect. One way to look at the question is whether what Verizon did would have been unlawful and punishable under the previous net neutrality regulations put into place by the FCC in 2015, and then would it be lawful and unpunishable after the FCC changed its position earlier this year.
Verizon admittedly throttled the Santa Clara firefighters’ internet service speeds based on their plan, which allowed throttling after a certain data limit had been reached. It’s not certain that what Verizon did would have been unlawful under the 2015 net neutrality provisions because there was an exception to allow internet service providers to engage in “reasonable network management,” which is what Verizon argues it was doing in this instance.
However, under the 2015 rules, the firefighters could have filed a complaint with the FCC on grounds that the throttling was “unjust and unreasonable,” likely because it was done for business purposes (such as Verizon favoring users who paid for its higher priced plans) rather than for technological reasons. That at least could have triggered an investigation. So Verizon had less of an incentive not to throttle because there’s not the same level of risk of FCC action that there was before.
After the current FCC repealed those rules, that is no longer an option. So at the very least, Verizon does not have to fear any investigation for engaging in “unjust and unreasonable” practices upon complaint from the Santa Clara firefighters, where under the old rules, that was a possibility, even if their actions weren’t obviously unlawful under the old rules.
2. Regarding the broader point — does the net neutrality repeal pose a danger to public safety? The most I can say is, perhaps. The idea of Ajit Pai and his supporters is that the market will sort these things out, and that companies like Verizon that throttle access like this will lose business and create opportunities for other private companies that offer better services. I’m skeptical that the market will solve these problems quickly enough to avoid problems like this in the future, and I think net neutrality in a broader sense is good policy for citizens and online businesses in a world that is increasingly becoming dominated by massive companies such as Facebook, Google, Amazon and Netflix. 

Politifact comment: The president makes a false claim based on bad research

Lou Jacobson from PolitiFact asked me to comment on the president’s assertions that 96% of Google News searches about him were from left-wing news organizations.

My response is below, some of which was used in Jacobson’s finding that, indeed, that statement by the president should be rated “False.”

I think there are a lot of things going on here, none of which involve political bias by Google. 
First of all, the article Trump and Lou Dobson cited is politically loaded and admittedly unscientific. It makes a lot of questionable leaps in the design, placing what any normal media observer would call “mainstream” (such as the Washington Post and New York Times) into the “far left,” most likely conflating the tilt of the editorial board with the news staff. It’s a “study” designed to come up with the outcome it came up with, and it did just that.
While searches on a couple of computers may vary somewhat, depending on who has been using that particular browser on that particular computer, the big driver is the Google algorithm, which ranks search results by credibility of sources and links and other factors that it is not very transparent about. See this study on how news search results are actually quite similar user to user on Google: https://www.sciencedirect.com/science/article/pii/S0747563218303650
Finally, no, there’s no evidence to suggest that what conservatives would paint as “liberal” outlets get a leg up in Google search results. Again, it’s an algorithm, and it’s conspiracy mongering to suggest some partisan programmer on Google’s end is putting a finger on the scale to tilt searches that way. A far more plausible explanation is that the items that drive the algorithm — links, shares, etc. — are more common among the so-called liberal publications, which have a long track record of credible journalism and try to cater to a wider audience, than partisan outlets like Breitbart.