Getting Documents, Dealing with Whistleblowers, and Staying Safe

Getting information from official or unofficial sources lies at the heart of investigative journalism.

This section of the GIJN/NAJA guide covers:

• How to make official requests for information
• How to work with whistleblowers
• How to protect yourself

Using Access Laws to Get Information

Information laws are key prying devices in the investigative toolkit.

However, the unique legal status of Indigenous governmental bodies may result in unique challenges when pursuing open information requests with these entities.

The freedom of information laws of the United States and Canada do not cover tribal nations and few tribes have adopted their own access laws. There are also nuances in national laws.

Below are some universally applicable tips for making official requests for documents. These were culled by GIJN from dozens of suggestions by transparency experts in many countries. For more, including information on specific countries, see Unlocking Laws to Set Information Free: GIJN’s Global Guide to FOI and RTI. Also see NAJA’s FOIA guide.

Image: Flickr/Marco Verch

GIJN’s 8 Top Tips

1. Plan ahead: Figure out what you want. All experienced requesters stress the value of doing advance research in order to understand the records that might be available and to describe them precisely.
2. Poke around: Try other avenues. Ask for the information informally and pursue alternative sources before going down the official request road.
3. Plot: Understand where the information is located. It’s important to know not only what you’re looking for, but where it’s located within the government.
4. Prepare: Learn about the law. Study the access law you will be using. For example: what fees might be involved? What’s the timeframe for answers? What are your rights?
5. Pose precise questions (to the right place). All experienced requesters stress the value of asking clear questions. Ambiguity can work against you. Asking focused questions can speed up the processing of the request. Some experts prefer a series of small requests to a big conglomerate request. “Give me everything” queries have their place, but are not the most effective or efficient requests. “Why” questions won’t work. Instead, translate your interests into precise questions. So, instead of asking “What does the director do?” state: “Please provide the job description of the director.”
6. Play the Game: Following up pays dividends. Don’t just sit by and wait while a request is being processed. Stay in contact with the responsible officials, being friendly if possible. Patience and persistence are necessary, as is negotiation in some instances.
7. Appeal: Do it. Denials are common, so be prepared. Appealing is recommended, even if you don’t (or can’t) litigate.
8. Publish: Don’t be shy. Write about your requests from the beginning. Win or lose, report on the outcome. This helps educate the public about transparency and holds the agency accountable.

National Laws

Learning the details of laws is an important first step in pursuing documents. These vary from country to country, as described below concerning Australia, Canada, New Zealand, and the United States.

Australia

The national law in Australia applies to all government agencies, including those related to Indigenous peoples, such as The Office of the Registrar of Indigenous Corporations.

However, some other kinds of state laws include special provisions to limit access to certain types of information so as to respect the views or sensitivities of relevant Aboriginal persons or Torres Strait Islanders. For example, there are protections for cultural rights in Victoria.

As with all FOI laws, exemptions apply. One of these is a blanket exemption provided to Aboriginal land councils and land trusts, according to Section 36 of the law.

This has sometimes been controversial, according to a 2016 article in The Guardian by Helen Davidson. Her report discusses how the Rirratjingu Aboriginal Corporation, which has been locked in a long-term dispute with the Northern Land Council over leases and mining royalties, called for the attorney general to end the legislative exemption that the group said allowed the land council to operate as a “secret society.”

Canada

The Canadian Access to Information Act does not apply to First Nations, and only a few of the more than 600 First Nations have laws that grant their members and the public access to information.

The information on First Nations’ laws comes from a 2016 article by Daniel Stahl in The Discourse, who summarized, “This means only a few thousand of the approximately 900,000 people identifying as First Nations in Canada can legally hold their governments accountable, or at least try to, through access to information that other Canadians take for granted.”

The Tsawwassen First Nation, south of Vancouver, British Columbia, has an access law, Stahl found, saying, “It is one of only a few First Nations governments that has created a legal pathway to accountability, having passed their own comprehensive freedom of information legislation.” The Tla’amin First Nation on British Columbia’s Sunshine Coast also passed a detailed freedom of information law in April 2016.

New Zealand

There is no exemption for Māori tribes (known as iwi) in the Official Information Act, nor anything specific in that act to protect information that is “tikanga” (a Māori concept with a wide range of meanings, including culture, custom, ethic) or “wāhi tapu” (a sacred site).

However, there is a provision in the Local Government Official Information and Meetings Act 1987 which enables a local authority to withhold information if it is “necessary” to avoid serious offense to tikanga Māori, or to avoid the disclosure of the location of waahi tapu. This applies only in certain contexts and can be overridden if the public interest in disclosure is greater.

While there is no comparable provision in the Official Information Act that applies to central government agencies, this issue was canvassed by the Law Commission when it reviewed the legislation in 2010-2012. The Commission floated the idea of a similar provision for the federal statute, but no such action was taken.

United States

Federal bodies in the US are covered by the Freedom of Information Act, including the Bureau of Indian Affairs and the National Indian Gaming Commission.

Tribal nations are not directly covered by the US FOIA, but access to information may be possible under tribal laws and constitutions.

In addition, information sent by tribes to the US government may not be protected from disclosure under the US FOIA laws. This is a complex topic. There was a legal battle over a FOIA lawsuit to obtain from the Bureau of Indian Affairs copies of all tribal constitutions, ending in a victory for the requester, Oklahoma attorney Kevin R. Kemper. (See description and archive of constitutions.)

There are continuing tensions over disclosure of information shared by tribes with the US government. This was the topic of a 2001 Supreme Court decision holding that there is no exemption under FOIA for the internal documents exchanged between the Klamath tribe and the Bureau of Indian Affairs on a Klamath Valley water allocation issue.

In this 2012 Indian Law article by Anthony S. Broadman, he cautioned, “The most effective strategy for protecting valuable information is for tribes to severely limit information disclosures to state and federal government agencies, through policy or more formal tribal legislation.”

The complications arise in the context of environmental consultations. “The combination of FOIA and tribal consultation results in a Hobson’s choice for tribes — take a seat at the environmental regulatory table and risk disclosing proprietary information or lose their seat at the environmental regulatory table,” wrote Sophia E. Amberson in The Washington Law Review in 2017.

Partial List of Tribal FOIA Laws in the US

There appears to be no complete list of tribes with FOIA laws, or with Constitutions that provide for a right to information. In some tribal government structures, members of the tribe have privileged rights to information. For example, the Pokagon Band of Potawatomi Indians law says that non-band members may be granted access to Band Records, but have no right of access.

The lack of access laws can impede transparency, as pointed out in this 2019 article by Tanner Stening in The Cape Cod Times. Stening began, “As the Mashpee Wampanoag Tribe struggles to save its reservation land and proposed $1 billion casino plan — with ramifications for the town of Mashpee, Cape Cod, and all of Southeastern Massachusetts — the inner workings of its finances and sovereign government remain largely off-limits to the general public and even tribe members.”

Below is an incomplete list of tribes with FOI laws (of varying strengths), or with relevant constitutional provisions. Suggestions of additions welcome. Please write to us here. 

• Absentee Shawnee Tribe of Oklahoma
• Cherokee
• Kenaitze
• Navajo Nation
• Oneida
• Osage Nation
• Oglala Sioux
• Penobscot
• Pokagon Band of Potawatami Indians
• Sault Ste. Marie Tribe Of Chippewa Indians
• Skokomish
• Wampanoag Tribe Of Gay Head (Aquinnah) Of Massachusetts
• Yurok

Photo: Shutterstock

Working with Whistleblowers

Whistleblowers are potentially the most valuable sources. They provide inside information and expertise, often at great personal risk.

For example, a First Nation former employee of Corrections Canada disclosed issues at a Quebec prison where she worked, according to a 2019 APTN report by Lindsay Richardson.

And the sensitivity of information held by a potential whistleblower from the Nisga’a Lisims Government in Canada caused the government to obtain a court order to prevent the disclosure, as reported in 2019 by The Discourse’s Wameesh Hamilton, a member of the Hupacasath First Nation in Port Alberni, B.C.

“But it doesn’t surprise me that this happened because there is no media monitoring the Nisga’a government or the nation’s four village governments, Hamilton commented. “And I believe this issue makes a strong case for why a free press is needed there.”

Guidance from Experts

If a whistleblower is willing to provide you with information, they should be treated with special care.

Lessons about this have been collected by nongovernmental organizations:

Working with Whistleblowers: A Guide for Journalists was published in 2018 by the Government Accountability Project (GAP), a US NGO. “We hope to help journalists have whistleblowers’ backs, rather than unwittingly exposing them to further retaliation,” the guide’s forward states. It also includes the following advice:

• Because the risk of reprisal for whistleblowers is high and the legal landscape is complex, both journalists and sources would be well-served to consult or coordinate with GAP or other lawyers versed in whistleblower law before acting on information supplied by an employee source.
• Journalists who work with intelligence whistleblowers should realize that any story based on classified information may result in the whistleblower’s prosecution.
• Journalists should not insert themselves into stories; you’re not there to be a strategist or offer PR advice, nor can you be the whistleblower’s lawyer. But by developing trust and demonstrating awareness of some of the unique considerations involved with whistleblowing, you can encourage reports of valuable information while maximizing your source’s protection.
• If an employee has come to you with information about serious wrongdoing, whether the information relates to human rights abuses, environmental threats, or national security risks, journalists should exercise special care in communicating with the employee source to ensure that the employee retains the flexibility to consider all options in making choices about the best, and safest, ways to disclose information.

The Whistleblower Project by the US-based Society of Professional Journalists is a collection of articles on the topic, including a discussion of the need for secure communications.

“If someone is coming forward as a whistleblower, be it against the government or a company, as a journalist you have a responsibility that your communications are secure and you’re not the reason they are exposed,” said Cary Aspinwall, of The Dallas Morning News.

Journalism.co.uk featured lessons from Meirion Jones, an editor for the Bureau of Investigative Journalism (BIJ) in the United Kingdom, in a 2019 article.

“One of the most important measures, Jones said, is protecting your source’s anonymity and safety. Should there be the slightest danger of these being compromised, it is preferable to not run the story at all, or publish a significantly cut-down version,” the article states.

Also see this GIJN list of international and national whistleblower protection organizations.

Offering Safe Haven, Encouragement

Journalists are increasingly encouraging whistleblowers and others to come forward with information, and taking steps to provide confidentiality.

For example, the Bureau of Investigative Journalism’s page on whistleblowing states in part: “Here is a guide to leaking us information, with options for covering your tracks if you are worried about being identified. None of the methods listed here are failsafe but some offer a level of protection.”

Scrubbing Source Documents

If you do obtain documents, make sure to protect the source if you publish them.

“Scrub metadata, redact information properly, search for microdots, and more,” wrote Ted Ham and Quinn Norton in a 2017 Source article. They advised, “The first step with any sensitive material is to consider what will happen when the subjects or public sees that material.”

Security Resource Materials

Investigating can expose you to risks, particularly through online activity. Here are some of the best resources for your protection.

Committee to Protect Journalists’ Safety Kit: CPJ’s four-part Safety Kit issued in 2018 provides journalists and newsrooms with basic safety information on physical, digital, and psychological safety resources and tools. In Spanish, French, Russian, Somali, Farsi, Portuguese, Chinese, and Burmese.

The Practical Guide for the Security of Journalists was updated in 2017 by Reporters Without Borders and UNESCO. It is available in English, French, Spanish, and Portuguese.

Security Manual for Protest Coverage: By Abraji (The Brazilian Association of Investigative Journalism).

Freelance Journalist Safety Principles: These guidelines were issued in February 2015 by a coalition of major news companies and journalism organizations. Translations are available in Arabic, French, Hebrew, Persian, Russian, Spanish, and Turkish.

Safety Handbook for Women Journalists: This 95-page guide done in 2017 by the International Association of Women in Radio and Television, aimed at women journalists, is heavy on conflict zones and war reporting and includes sections on risk assessment, online harassment, and travel safety.

More materials are available on the GIJN resource on Safety and Security. This also includes a list of organizations that work on the subject.

Digital Security

Digital self-defense is critical, beginning with the simplest things, such as strong passwords.

The Rory Peck Foundation issued a Digital Security Guide, stressing that “even taking small, simple steps can make a huge difference.”

Robert Guerra, a digital security expert at the Canada-based Citizen Lab, warns that most reporters aren’t even taking the most basic precautions. He said, “If you become known for investigative reporting, people can use digital tools to come after you and your data.”

His specific tips, and those of others, are available on GIJN’s resource page on Digital Security.

Here are some additional resources specific to digital security:

A Cheat Sheet for Open Source Digital Security Options prepared for GIJN in 2019 by Katarina Sabados, a freelance journalist and researcher with the Organized Crime and Corruption Reporting Project.

Committee to Protect Journalists Digital Safety Kit, available in Spanish, French, and Russian.

Digital Security for Journalists Requires an Adaptable Toolkit: This 2019 article is by Grégoire Pouget, president and co-founder of Nothing2Hide.

The Field Guide to Security Training in the Newsroom is a curriculum hosted by OpenNews, a team that helps developers, designers, and data analysts convene and collaborate on open journalism projects, and BuzzFeed Open Lab, an arts and technology fellowship program at BuzzFeed News.

4 Digital Security Tips Every Journalist Needs to Know: At the Uncovering Asia 2018 conference in Seoul, Chris Walker, a digital security expert from the Tactical Technology Collective, shared key tips that journalists can implement to protect themselves, their sources, and their story.

Measures for Newsrooms and Journalists to Address Online Harassment is a collection of resources published in 2019 by the International Press Institute, including a protocol to support targeted journalists.

Online Harassment Field Guide: Published by PEN America, this guide includes advice for a variety of audiences – writers, witnesses, and employers – plus some unusual features, such as Guidelines for Talking to Friends and Loved Ones.

Your Smartphone and You: A Handbook to Modern Mobile Maintenance is a 2019 guide by the Freedom of the Press Foundation.

The August 2017 edition of Current Digital Security Resources was pulled together by Martin Shelton, who begins by noting that “even the richest digital security resources become quickly out-of-date.”

Shelton is also the author of an article about one of the most common suggestions for online defense: using two-factor authentication. Another piece of his covers how reporters can prepare for malicious software.

Surveillance Self-Defense, from the Electronic Frontier Foundation, provides lots of information, including a seven-step “security starter pack.”