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.

For records from the Department of Justice or any federal agency, you’ll file a FOIA. For records from your local sheriff or police, you’ll file a state public records request, the requirements of which vary by state. [Transcript | Video]

Records requests criminal justice reporters 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,” he 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.”

Reduce the chance of hearing no.

FOIA gives you the right to access existing information.

“Police departments, county sheriffs, law enforcement agencies – no one has to create a record for you, and so if you ask for a record that they have to put together or take two things to make, that’s the quickest way for them to say no,” Walker said.

Check the state Records Retention Schedule, which indicates “all the data points that a particular department or agency tracks” and how long they have to keep it. If you’re looking at federal agencies, like the CIA or NSA, the National Archives has this information.

If you FOIA the FBI, Walker recommends asking that they cross-reference search their databases, rather than simply their “central database.”

Do reporting before you file your FOIA.

“While I’m talking to my sources and they mention a meeting or they mention a document, I ask them, ‘what’s it called? How do you know it’s there? Who’s got it? Who’s the last person who may have touched it? How did you receive it? Was it passed out in the meeting? Was it emailed out to you?’” Walker said. These are all details you would put in a request to point a FOIA officer directly to what you need.

Another way to get specific is to be careful with language – avoid using “related to” and if you’re asking about keywords make sure to say “any” or “all,” depending on your needs.

FOIA exemption 7. A law enforcement agency could cite this exemption, saying that the records requested would interfere with enforcement proceedings, investigation techniques or a person’s right to a fair trial.

Walker notes that under the FOIA Improvement Act, a federal law enforcement agency can no longer summarily withhold all investigative files.

“They have to go through an investigative file and they have to separate out any documents they have in that file that will not cause harm to the investigation,” he said. “Do they pretend like that’s not the case? All the time, but it’s something I put into the FOIA request to let them know that you can’t just blanketly say no.”

What can you request? Documents, information, records, films, photographs, sound recordings, emails, call logs, sign-in sheets, text messages depending on your state.

“I’m always in this document state of mind. Here was a shooting. OK, what video can I get? What photos there exist? What records are out there?” Walker said. “I’m always thinking about what sort of primary source documents I can get my hands on that the police department or the county sheriff’s has.”

Walker says FOIAing emails can show how people are trying to spin something. He has even FOIAed his FOIA request and was able to see that the agency in question had the records he wanted but was trying to decide whether to release them to him.

He also values sign-in sheets. “I want to know who’s all stopping by, whether it’s the union, whether it’s the mayor or the senator or member of Congress. I want to see who’s coming in and out.” It can reveal an official’s priorities, pressures and give reporters ideas for sources.

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.

Crime Coverage Summit 2023: Beyond ‘If It Bleeds, It Leads’ was sponsored by Arnold Ventures and hosted by NPF and RTDNA. NPF is solely responsible for this content.