Building Stronger Communities Through Accessible Public Records

The public records request system is an essential pillar of democracy because it guarantees both government transparency and accountability. Providing the legal right to access public records ensures that everyday citizens have the opportunity to oversee how decisions are made, how laws are enforced, and how taxpayer dollars are spent. 

That said, exercising this right can oftentimes be a frustrating experience. The average citizen might regularly face significant barriers when trying to navigate the public records system, such as overwhelming backlogs and prohibitive fees. 

Dr. David Cuillier, the Director of the Joseph L. Brechner Freedom of Information Project and co-director of the Brechner Center for Advancement of the First Amendment, understands these operational challenges better than most. As a former Pacific Northwest government reporter and editor for The Journal of Civic Information, Cuillier has dedicated his career to public records education, training more than 15,000 journalists and citizens on how to acquire civic data. He is the co-author of The Art of Access and serves on the FOIA Advisory Committee at the National Archives. 

In this interview, Cuillier discusses the modernized approach needed to streamline the public records process. He advocates for transitioning from a traditional request-based model to a proactive approach, where public information is automatically published online using advanced technologies like AI to assist agencies with request processing. 

It seems like each stage of your career has carried with it the overarching theme of government transparency. That’s certainly true for your early career in which you worked as a journalist covering the local government in the Pacific Northwest. What about that early experience motivates your work toward the goal of helping both journalists and citizens more easily acquire the civic information they’re entitled to?

I was a government reporter at small newspapers in the Pacific Northwest, mostly covering City Hall. Thanks to public records, I was able to illuminate a lot of issues that the people in my community needed to know about.

I really saw the importance of government transparency, but I also saw the frustration of getting access to those records. I often found my requests denied, and I had to fight to get access to the information I needed and had a right to. I had to push. It was worth the effort, however.

Back then, in my experience, the best way to gain more access to public records was by developing relationships with government officials. They knew who I was, and they knew I wasn’t going to back down or go away. Because of that, I was able to get local records a little faster.

Conversely, when I tried to get records at the federal level, I assumed it was going to take a long time and be a hassle, and I was right. Honestly, in a lot of ways, I think the overall process has gotten worse. We see that in the data, and I hear it every day when journalists call me. They’re frustrated.

There seems to be a disparity between who can successfully access public records and those who have more trouble doing so. What does that tell you about the FOIA process, and what could change within the system to help alleviate the issue? 

First things first, we have to overhaul the whole system. Our research for The Document Divide found that people who request records heavily skew toward educated, affluent, white males. When we look more closely, that breaks down into mostly lawyers, journalists, and people with money.

Our research shows that average people are really dissuaded from the whole process because, for one thing, it's very legalistic. Secondly, government agencies typically don't make it easy to navigate the system. Some agencies are good about putting information online, explaining the process, and all of that. But people don't have time to submit a request and follow it through. They're busy with their lives, so the process can make it really hard.

There are several studies finding that the mere existence of fees makes people run away. What we have to do is change the system. We have to make it simple for people. We have to host the information that people want proactively online. They shouldn't even have to ask for it. We also have to make copies free for average people. That's the case in some countries, so why isn't it here?

There are a lot of things we could do, including setting up an independent information commission in every state and within the federal government that can resolve request disputes with authority, so that average Americans don't have to go to court to access information.

You’ve spoken at length on the value of citizens accessing civic information, but I’m curious, what kind of information should the everyday citizen be requesting?

Information is power. Those who have it often want to hoard it, and those who lack it want to gain it but sometimes don’t know how. Information is truly critical for the average person. We know from research that access to public records empowers individuals to find out what their government is doing. It lowers corruption, improves drinking water, and even makes for safer restaurants. It also helps parents determine which schools they want to send their children to. It is incredibly important.

Average people can use these requests to obtain all kinds of information, from running background checks on a babysitter to finding out which parts of town are ideal for homeownership. I used public records extensively before I bought a house, and it saved me from purchasing a property next to a commercial zone that was slated for a massive construction effort in the near future. There are so many ways that public records requests are beneficial to everyday people.

This is even more true for journalists. We have a study at the Freedom of Information Project showing that when a public record is cited as a source, readers find the story much more credible and informative than stories citing experts or other sources. It is truly important for society, and there are undeniable, tangible benefits.

What structural or cultural differences allow local governments to outpace federal agencies in transparency, and what can the federal government learn from local record keepers?

I've been fortunate to have a bird's-eye view of both local governments and the federal government, and it's really interesting watching from the outside.

Local and state governments are generally much more nimble. They have the ability to adopt new procedures, implement new software, and adapt to changes far more quickly than a federal agency. 

Everyone claims they want to make the system better, but when you get down to it, there is a lot of bureaucratic red tape that slows progress down.

For example, why don't we have a single, centralized platform for the federal government that handles a public records request from submission all the way to fulfillment? Why don’t we have that?

One of the more persistent issues in public records requests at both the state and federal levels has been the problem of overclassification, or designating information as classified when it ought be public. What modernizations would you suggest to combat the issue? 

Clearly, overclassification is a problem. It's a tough one to deal with because it's hard to combat assertions that releasing a document would be a threat to national security. We need to remedy that through tighter criteria for what gets classified in the first place, changing the very procedures and regulations that dictate it. That's going to be hard to do.

When you look at FOIA request statistics, a very small percentage are actually denied or redacted due to national security. I think part of that is because so many records are just classified outright, almost without thinking. That outright classification serves as a bigger barrier for most people than explicit national security exemptions applied after a request. Clearly, we need to get a handle on overclassification.

How can the integration of advanced technology like AI and machine learning help solve the backlogs, and what safeguards are needed to guarantee AI leads to a more transparent government?

Like any tool, AI has its pros and cons. I think that is exactly how we should view it, just like every other tool that has come before it. The internet, modern computers, and even the Gutenberg press all brought significant benefits to the table alongside unintended consequences. The same is true for AI, and that will continue to be the case.

In terms of public records requests and FOIA, AI holds a lot of promise in helping agencies find records responsive to requests. It can save a considerable amount of staff time because employees no longer have to spend as many hours manually searching for the correct information. 

In fact, I recently conducted a session teaching investigative reporters how to use AI and FOIA logs to discover the existence of records that might be relevant to their reporting. It works exceptionally well. It helps journalists hone their inquiries by allowing them to ask for an exact file name or database, which ultimately helps the public records agencies process the requests more efficiently.

There are agencies currently using AI for redactions, including within the Department of Justice. We are even seeing examples of agencies in British Columbia, Canada, starting to test the capabilities of AI. While it is clear that this technology will always require human oversight, it shows great promise. If we keep working with it, AI is going to play a key role in clearing the backlog.

Given its mission to champion transparency and public access to government records, how has the Joseph L. Brechner Freedom of Information Project been affected by the rapid emergence of AI?

We created a “secrecy tracker” to monitor every bill dealing with public records proposed in Congress and in every state legislature. We used AI for this because it can identify bills that standard keyword searches simply couldn't. It easily filters out false positives, which is a massive time saver. It is far more effective than basic keyword-based searches, and that has been incredibly helpful.

We have also used AI to help people discover the existence of records through logs and other documents. In fact, we are currently working on a tool tailored for each state. This could provide an effective way for journalists and citizens to find existing, previously published records that are highly relevant to their lives. That is one of the primary initiatives we are advancing with new AI tools.

Artificial intelligence also serves as a powerful tool for rapidly analyzing massive volumes of data. In the legal field, attorneys frequently utilize AI to process massive sets of documents during the discovery phase. Similarly, journalists leverage the technology to efficiently navigate enormous databases and document leaks. By exceeding the capabilities of traditional keyword searches, AI enables professionals to quickly assess the overarching contents of a dataset and identify highly relevant information. While this automated preliminary screening must inevitably be followed by meticulous human review to verify specific details, deploying AI for initial data analysis remains a highly practical and effective application of the technology.

For the average citizen, what are the signs that a public records denial is invalid, and what proactive steps can a requester take to make certain their request is completely valid?

It's really hard to know what responses are genuine and what responses are not. I haven't figured out a way to suss that out 100%. There are signs, of course. If a record is clearly public and they're denying it, checking to see what exemption and reason they are citing is the first step. Is it even in the books? 

I think, for the most part, most denials are well-intentioned. In most cases, government custodians are doing their best to do the job and follow the law. They'll tell you that, and I believe them. There are, of course, situations involving bad actors who are gaming the system and trying to hide information, particularly from journalists who may embarrass them or get them fired.

So, how do you know the difference? I think we have to do our homework and find out. Is this exemption being applied correctly? Does the case law apply? 

It really helps to build trust with the record custodian. In fact, an experiment published this month out of Europe involving record custodians found that if you're a requester and you make it clear how your request aligns with the agency's mission, rather than just being vexatious, the custodian is more likely to comply, work with you, trust you, and follow up. We're dealing with humans here, so anything we can do to smooth that process along is good.

What are a few of the less-obvious problems that could arise from growing public records request backlogs? 

There's a hunger for government information in this country. Look at all the folks who want the UFO files or the JFK files. For the first time in years, when I wear my t-shirt that says "FOIA and Find Out," people will go, "Yeah, FOIA!" Five or ten years ago, people didn't know what FOIA was, but I think people are starting to see the power of public records. That's really cool, and we need to keep building on that.

We need to make the system better. We need to continue to educate the public on how this is beneficial and definitely show the value of this information. That means proactively posting a lot of information as well. We need to move from a request paradigm to a posting paradigm. 

Now, of course, a lot of agencies will say they don't want to spend money. They'll say they don't have a lot of money, or ask why they should spend money on these new systems to proactively post information. Well, it will save money on the back end. We need a system where, when the record is first created, it's automatically demarcated with the fields that are public and the ones that are exempt, so you don't have to go through a search and redaction process. 

The record should just flow automatically into a database, and the public information from that record should be automatically posted online into a searchable, easy-to-use format so that people can see the information the government has, while withholding information that is exempt by law. It should be automatic. 

Looking ahead, if the Freedom of Information Project fully achieves its vision over the next decade, what do you think the daily relationship between the government, the press, and citizens will look like? What is your hope for that?

That's a good question. I think it will take longer than 10 years, but I would like to see a world where government information is proactively posted and easy to access, where we can hold our government accountable and see what's going on. We need intermediaries, too, to sift through it and make sense of it. The average person is just too busy. They have their own jobs, families, and things going on, so they probably aren't going to sift through all this information. We do need an intermediary to do that, whether that's a journalist or a journalist-like person. I'm not sure how that's evolving, but it's important we have that.

I think we need better systems that make this accessible to everybody, and to enforce it without just relying on the courts, because that's expensive and a waste of time for the courts. We need independent information commissions. That works very well in Connecticut and in more than 90 countries. Fifty of those have enforcement power, so you don't need the courts. They're still there as a backup, but it makes the system work a lot better, and it's a lot more affordable and accessible to the average person.

We need to eliminate copy fees and all fees whatsoever. It makes no sense that we're charging people to access their government. It's a fundamental, foundational right in a democracy, so why are we charging for it? They don't charge people to vote or to attend city council meetings, so why are we charging them to find out what their government is doing through records? There are some key changes that we can make that will make for a better system, a better government, and ultimately a better society. And that's what it's all about.