Journalists’ requests for public records are met at times with Clinton-esque exercises of sophistry. The oft-heard rejoinder — “We don’t have any documents responsive to your request” — can mean at least five things:
- We never had any such record, because what you’re asking about never happened.
- We never had any such record, because we never wrote anything down.
- I used to have that record, but it’s archived somewhere else and I didn’t bother looking.
- I probably should have that record, but I deleted/shredded/erased it.
- I’m lying to you.
It’s Number Four that we’re here to talk about today. If the answer to a request for public records is that no documents are available, and you think that’s the wrong answer, consider doing some homework as to what records the agency was obligated to keep and for how long. Sometimes, the failure to keep good records — whether careless or intentional — itself can become the story.
Every state has some type of protocol governing how long documents must be retained on file. Typically, a state statute or a regulation enacted by the secretary of state will spell out a schedule applying to different classes of documents. The federal government has its own highly elaborate and agency-specific set of schedules for federal documents. Accounting, tax and legal records typically are on a lengthy retention schedule, and routine correspondence a much shorter one (often, one year from the date of receipt).
Some government agencies are meticulous about archiving even relatively mundane documents, so even if the information you want isn’t available on hand, that doesn’t necessarily mean it’s gone forever. Each state has some type of State Archivist or similar agency, often under the umbrella of the secretary of state, whose job is to catalog old documents for access by researchers. Authors, genealogists and academics regularly mine these archives for informational gems.
Government officials can and do get into legal trouble for disregarding their duty to retain public records. In a thoroughly researched story about a controversial project to build a combination shipping terminal and nature preserve on the Columbia River, Oregon’s Portland Tribune recently raised some uncomfortable questions about the completeness of the city’s response to a request for officials’ e-mails.
This is why journalists who receive the “no documents exist” response should always press for a more complete answer. There’s a difference between “documents never existed” (which probably is legal) versus “documents existed, but we discarded them” (which may not be). If a journalist believes that documents responsive to an open-records request were destroyed prematurely, a call to the state Attorney General’s Office may be in order.
Because government documents are not forever, journalists who are onto a hot story — or who are involved in a censorship or funding dispute with their schools — should act quickly to “preserve the paper trail” before the shredder (or the delete key) kicks in.