Sometimes you need to carry a big club – and threaten to use it – if you want government agencies to follow the law.
David Cuillier, an assistant professor of journalism at the University of Arizona, ran two experiments testing the effectiveness of different types of public records request letters among Arizona police agencies and school districts.
The study, published in the recent issue of Communication Law and Policy, found that threatening letters work best at prodding agencies to follow the law, and even then, many agencies ignore their legal obligations anyway.
"I always thought you attract more flies with honey than vinegar, but that's not the case here," Cuillier said. "Unfortunately, many of our public agencies won't follow the law unless you threaten to sue, and even then many will outright ignore you."
Cuillier worked with two UA journalism students in 2008 who were gathering public records for news stories, one based on school superintendent contracts and the other on police use-of-force records, which document when officers apply physical force in an arrest, such as through a taser or club. In Arizona those documents are open to citizens by law, and the public records act requires agencies to respond to records requests.
In the first experiment, in October 2007, Cuillier mailed public records requests on behalf of the journalist to the 104 city and county police agencies in Arizona. Half got a friendly worded letter and the other half received a terse, legalistic letter that threatened litigation for noncompliance. The threatening letter is provided online by the Student Press Law Center and is used by thousands of journalists.
The student journalist, who gathered the records for a story, recorded whether each agency responded as required by law, how soon the agency responded, whether the agency provided the records, how much the agency charged for photocopies as well as other details.
Of the agencies that received the friendly letter, half responded. Of the agencies that received the threatening letter, two-thirds responded. The threatening letter also resulted in a faster response, more compliance with the request and lower copy fees.
Overall, 42 percent of the police agencies didn't respond to either letter, a violation of public records law.
In a second study, in March 2008, another journalism student working on a story requested school superintendent contracts and high-school football coach contracts from all school districts in the state. Cuillier mailed the same friendly letter to a third of the districts, a neutral letter to a third, and the same threatening letter to a third of the districts, randomly assigned.
Similar to the first study, of those who received the friendly or neutral letter, only half responded; of those who received the threatening letter three-quarters responded. The threatening letter also resulted in a faster response time, higher percentage of schools who provided the information (28 percent), lower copy fees and a more helpful attitude than both the friendly and neutral letter. The neutral letter worked no better than the friendly letter, and as in the first study, 42 percent of the schools didn't even respond to the letters – violating state law.
Cuillier noticed that the threatening letter resulted in more responses from government attorneys and top officials, suggesting that when clerks see threats of litigation they might forward the request to higher-ups. He also noticed that the friendly letter did result in more agencies offering to provide the records for free via e-mail.
"Some people do respond well to friendly approaches and will bend over backward to help if you are nice," Cuillier said. "But most officials, based on these results, won't respond unless you threaten. That's too bad."
Based on the study, Cuillier suggests people first approach an agency in a polite and friendly manner in requesting records. But if an agency ignores a requester, in violation of the law, then reminders of the law and potential litigation might be in order. Another option, he said, is to contact the state public records ombudsman, who might remind the agency of its obligation to follow the law.
Cuillier, a former newspaper journalist, teaches citizens and journalists how to acquire government records that are open by law. He is co-author of "The Art of Access: Strategies for Acquiring Public Records," and this spring conducted a 45-day national road tour providing training in accessing records to more than 1,000 citizens and journalists in dozens of states.
"There's a reason we have public records laws: to make sure citizens can keep tabs on their government and retain control of the instruments they have created," Cuillier said. "Let's hope agencies will do a little better in following the law. People shouldn't have to cajole and threaten to be informed."
The study: Cuillier, D. (2010). Honey v. vinegar: Testing compliance-gaining theories in the context of freedom of information laws. Communication Law & Policy, 15(3), 203-229.