Journalists: How to Get Records the Criminal Justice System Doesn’t Want You to Have

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Public records are one of the few ways that criminal justice reporters can learn more about what happens in prisons, jails, youth detention facilities and ICE detention centers. There are few other aspects of American life that are so closed off from the public.

Increasingly, access to public records is under threat from the federal government. As data disappears from agency websites and FOIA officers are being fired, records requests at the state and local level are even more urgent. It’s also important to remember that federal criminal justice data on critical issues, such as deaths behind bars, is already incomplete and difficult to acquire.

This toolkit will walk you through essential research methods used by Marshall Project Staff Writer Alysia Santo that will help make your requests as strategic and detailed as possible. And if you’re working on a records-heavy criminal justice story, you can request a consultation to discuss the reporting hurdles you’re facing.

Figure out the paper trail

Consider these essential questions

The best records requests are a result of your pre-reporting on the processes and documentation related to your investigation. For example, if you’re reporting on a specific incident, you might brainstorm a list of every agency involved that would have some kind of related record, and then try to answer these questions:

• What paper trail did the people or institution leave?
• What specific form would the incident generate?
• Who does that form get sent to internally?
• Who reviews it?
• Who writes something about what they read?
• Does that form get submitted to another institution?
• Does that form get entered into a database?
• Where else would that record show up?

Assume a relevant record exists until proven otherwise

Some data points simply don’t exist, but many do. They just might not be housed in obvious places. For example, The Marshall Project investigated laws that ban people with criminal convictions from receiving victim compensation funds, which help victims cover costs such as lost wages, hospital bills and funeral expenses, but during the reporting process, it became clear that data would be hard to come by.

In cases like these, tracking down the data you need requires going into “document mode” to think about:

• How and why things get written down
• How information gets passed around
• What document might contain at least some of the information you’re looking for

Reporting this story required some basic information about the victims, including their age, race, the crime they were seeking reimbursement for, and the previous conviction causing the denial.

Even if your state’s attorney general’s office won’t provide this information, you could request the applications and denial letters of all the people who were not granted victim compensation due to a conviction. From there, you could build a database to see exactly how this policy plays out in your state.

For The Marshall Project’s coverage of this issue in Ohio, building a database of information provided in the applications and denial letters helped illustrate that the ban fell hardest on Ohio’s Black victims and their families. While 42% of the applicants for victim's compensation in Ohio that year were Black, they accounted for 61% of denials based solely on their criminal history.

The applications contained important information, such as the victim’s race and what type of crime they were seeking financial help with. And the denial letters say what criminal history the attorney general’s office was drawing on to deny the application. These specific records pertained to Jamar Givens, who was murdered at 23. His parents applied for victim compensation but were turned down because Jamar had gotten into trouble with the law as a teenager. Their story underpinned the radio version of this investigation.

Identify the specific records you want

Learn the names of your desired records

A critical goal of pre-reporting is to learn what the records are specifically called. You can’t rely on hoping that you’re going to identify what you need with the records request itself. Knowing the exact name of a form or database makes it much harder for the government to deny a request. If you can’t figure out exactly what a record is called, include other details, such as which branch of an agency maintains a certain database.

Asking for data points or types of information, without naming a specific record, is not an ideal strategy because an agency can say that you didn’t identify an actual record for them to share, or they don’t have that type of information. The key to success is identifying what you need before you ask for it. You can do this by:

Talking to everyone involved in your story, including lawyers, advocates, service providers, agencies and staff members, such as public information officers. These are the people who have dealt with the issue at hand, or they’ve worked with impacted clients and would know the specific names of records or databases. Picking up the phone instead of emailing will help build relationships with these critical stakeholders.

Researching previous lawsuits and looking at exhibits to identify record-keeping systems. Real records are attached to lawsuits, so you can find the record in an unrelated lawsuit. This gives you the name of the record and an example to share if you’re told that type of record doesn’t exist.

While investigating rural policing and state troopers in Kentucky, Santo needed to review officer-involved homicides, but she didn’t want to request the entire file for each case, concerned it might take too long to obtain. After speaking with an attorney who regularly sued the state police, she got the official name of the police’s summary investigative document, which she later requested and obtained for nearly 50 deadly police shooting cases. The information inside those documents provided some of the series’ most important findings.

Reading inspector general reports and audits, as these documents often refer to various records that you may want to track down.

Reviewing any record retention schedules, data dictionaries, or record layouts you can get your hands on.

• A record retention schedule breaks down all the types of records an agency keeps, including all of its incident reports. Keep in mind that these can be technical and difficult to understand, and some agencies don’t have them. However, sometimes even just asking for the retention schedule can lead the agency to help you because they will see that you are working hard to get questions answered and want to make sure you understand what you’re seeing.
• The data dictionary or record layout. These are created by the agency to lay out what each field in a database entails, so before you request a database, you can make sure you know what fields you need. An agency can give you a database without telling you what the fields mean, and if you don’t know the correct names of the fields, it can be impossible to analyze the data.

When Santo obtained the employee disciplinary database from New York’s corrections department, it contained abbreviations that weren’t always intuitive. Getting a copy of the department’s key for understanding these shortcuts allowed our team to analyze this data and produce a series of stories about how abusive prison guards keep their jobs.

Requesting various documents to help inform what documents you’re actually seeking. These initial records requests may include:

• Blank copies of forms. You can ask for a blank copy of every form they have, or ask for a blank copy of a specific form you’re planning to request.
• Previous FOIA requests. You can request a list of all of the FOIA requests an agency has received over the last three years to see what other people have requested and what they’ve been provided.
• Receipts. Transactional receipts and invoices that confirm purchases are public record, and may be helpful in some cases.
• Record retention policies. Most agencies are required to archive specific records for a predetermined amount of time. These policies can spell out the names of databases and forms.

Santo and co-reporter Eli Hager were investigating private prisoner transportation companies and needed to get a sense of how often these extraditions occur, how far away people are being transported, and how much it costs. Invoices contained all of that information, alongside the names of people who’d been extradited, providing potential sources.

Next steps after pre-reporting

Limit your scope

Pre-reporting can help you tighten the scope of your requests, which is important for many reasons:

• While filing a FOIA request is free, agencies can charge newsrooms for fulfilling it, sometimes at an hourly rate. Data analysis by MuckRock shows that costs can vary significantly by state. For example, they found that agencies in Colorado can charge more than $33 an hour for work on FOIA requests. For bodycam or surveillance footage in Ohio, agencies can now charge up to $75 per hour of work, with a maximum of $750 per video, and they can require fees be paid in advance. Smaller requests should cost less in this type of scenario.
• Requesting a large time frame, like 25 years of data, could slow your request down. Most likely, the way that the agency kept its data has changed multiple times.
• It’s good to understand their methods of data collection, storage and archiving before making your request. You could be burying yourself with way too much documentation to sift through.
• Asking for roughly 10 years of data is a good rule of thumb. It’s worth considering how relevant information is when it’s older than a decade. Making a smaller request can illustrate to the agency that you’re trying to work with them in good faith.

Know the law

A record request denial is just the beginning. Many requests will eventually involve legal intervention, especially if you’re asking for years of records about violent incidents that government agencies don’t want you to have. With the assumption that lawyers will be called at some point, document everything along the way, which includes sending an email after every phone call you have with records custodians to document what was discussed.

Click here to download a printable list of relevant resources, including pro bono legal services, legal hotlines for journalists, and general guidance on public records laws. And here are some other legal factors to keep in mind:

• In some states, you have to be a resident. That’s right. In these six states, you have to be a resident in order to file a request: Arkansas, Tennessee, Kentucky, Virginia, Delaware and Alabama. Working with a local university or journalist based in the state could help in instances when you need a resident of that state to file the request.
• It’ll be harder when sensitive information is involved. The hardest records to get involve children, victims of crimes and records that reference medical conditions. If you’re being denied an entire record for one or more of these reasons, then ask the agency to just redact the private information. The whole record shouldn’t be closed off, unless the record is listed in state statute as not being public.
• Constructive denial can be a useful tool. Some states have a mandated number of days during which they need to respond to a records request. If they continually miss those marks, you can argue that they are, in effect, denying your request and you can proceed to appeal it.

Strategize to avoid over-redactions

Another obstacle is that agencies will often over-redact the records they send you. Make sure you understand what they are redacting and figure out if it’s legal for that information to be withheld.

Before the records custodian finalizes their response, ask for a sample to see how much they plan to redact. The sample could be:

• One form with the redactions
• A sample of 5-10 pages if it’s a very long record
• One hundred rows of a spreadsheet

You can ask for specific statutes when they redact pieces of information so you can read the statutes and see if they actually apply. This will help you figure out if they plan to over-redact, so you can correct the issue before they spend weeks or months over-redacting the whole set of documents.

If they over-redact a large amount of records, it could take months for them to re-do the request, or in jurisdictions that charge for records and labor, you might be told you’ll have to pay again.

Consider building your own database

If the data you need is unreliable, or it simply doesn’t exist, you may want to consider making your own database. This method can be especially useful when you need to collect a piece of information that the government doesn’t already track in a dataset. You can also take this approach when dealing with printed records that need to be digitized.

For more information on fact-checking a self-compiled database, check out this explainer that breaks down how two reporters fact-checked a database on the results of arbitration for abusive prison guards in New York. Often, it’s possible to combine a large external database with a smaller one that you’ve made.

If you are creating a database from scratch and want to brainstorm how to set it up with our data editor, David Eads, request a free consultation here.

Follow up by phone

It’s easier to ignore an email than a phone call, and emails don’t build relationships the way that calls do. The people who process these records actually do often have discretion on how quickly you’re going to get your records and how many obstacles you’re going to face.

If someone isn’t responding, email the same person every two to three days for a few weeks. Even if you feel ignored, don’t accuse them of ignoring you, and don’t focus the communication on your feelings. Once a few weeks go by, start copying other people at the agency so they see your correspondence about the request. You can be polite while also being firm about what the law requires.

Fact-check your records request

One essential fact-checking step is sending a letter outlining the assertions of your investigation and seeking a response before it is published. This message may include a list of findings that will appear in your story and offer the opportunity for an interview or statement. This practice is helpful for transparency and making sure your interpretation of the various public records is accurate. Additionally, you should keep documentation regarding all of your efforts to seek comment throughout the reporting process.

Factors to keep in mind during your fact-checking process:

• Be mindful of timing when you send the letter. For a big investigation, you may want to give at least two weeks.
• If the recipient is not responsive by email, then you need to factor in time to send the letter through registered mail.
• Consider if the recipient has the resources and savvy to respond quickly or if they will need more time.
• If you do get a response, you’ll need time to fact-check and incorporate it into your story.
• In some cases, it may be best to link to or embed a PDF of the entire statement from the agency.
• Within the story, the response to an allegation should appear very close to where the allegation is raised.

Use this illustration

You are welcome to republish the provided illustration within any stories derived from the materials in this toolkit, along with any related social media and newsletter promotion of those stories. Ana Galvañ must be credited in all uses, and you can learn more about the illustrator here. The illustration should not be published in unrelated stories. The illustration should not be cropped or altered in any way.

Style and standards

Once a journalist has gained access to sensitive records through FOIA, ethical responsibility doesn’t end there — it deepens. Before publishing information in these records, use case-by-case judgment to assess the potential harm to individuals or the public benefit of disclosure.

Consider whether the material contains private information, such as mental health or medical records, that could expose them to stigma. Even if these details are legally accessible, they may not be ethically justifiable to publish, especially if they don’t serve a clear public interest.

At the same time, some records — like a police department’s use-of-force training manual — can and should be shared to inform the public. When weighing what to publish, ask: Who is affected? What’s the potential impact? Is this information essential to holding power to account or understanding systemic issues? Ethical FOIA journalism isn’t just about transparency — it’s about responsibility.Once a journalist has gained access to sensitive records through FOIA, ethical responsibility doesn’t end there — it deepens. Before publishing information in these records, use case-by-case judgment to assess the potential harm to individuals or the public benefit of disclosure.

Consider whether the material contains private information, such as mental health or medical records, that could expose them to stigma. Even if these details are legally accessible, they may not be ethically justifiable to publish, especially if they don’t serve a clear public interest.

At the same time, some records — like a police department’s use-of-force training manual — can and should be shared to inform the public. When weighing what to publish, ask: Who is affected? What’s the potential impact? Is this information essential to holding power to account or understanding systemic issues? Ethical FOIA journalism isn’t just about transparency — it’s about responsibility.

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