Sidebar: Despite Freedom-of-Information Laws, Forfeiture Records Are Often Neither Free Nor Informative

People interested in learning about the scope of forfeiture activity have their work cut out for them. Only 11 states and the federal government publish forfeiture reports online. 1  To obtain unreported data and unpublished reports, members of the public must turn to public records requests under federal and state freedom-of-information laws. Unfortunately, obtaining forfeiture data via public records requests is frequently neither free nor informative. The process can be arduous and expensive and is seeded with pitfalls. Worse, it may not even produce anything useful, making it a poor means for providing transparency.

To file a public records request, members of the public first have to know whom to contact and what—specifically—they are looking for. This is rarely straightforward. Agencies may deny requests that they deem too broad, and some pertinent materials may be exempt from disclosure. Further, public records requests may cost money—in some cases hundreds or even thousands of dollars—and can take months or years to fulfill. And even after forfeiture data are received, requesters’ work may not be finished. Depending on what shape the data are in, they may have to complete data entry for thousands of forfeitures and perform their own analysis.

This was certainly the Institute for Justice’s experience. Obtaining the data for this report took months of research, more than 200 public records requests, over 600 hours of data entry and lots of persistence. And IJ did not even request records held by local agencies, which would have added years to the project. As it was, Ohio took seven months to provide the forfeiture data IJ requested. The Department of Justice took four months to turn over its forfeiture database, and the Department of the Treasury still had not fulfilled IJ’s March 2015 request for its forfeiture database by press time, eight months later. Massachusetts charged IJ—a nonprofit—$300 for its request; Mississippi charged $100. Delaware refused IJ’s initial request about its Special Law Enforcement Assistance Fund because it had not been submitted by a state citizen. 2  After IJ found a Delaware-based sponsor for the request, the state still refused to provide information about the SLEAF because the fund’s advisory committee—a body composed solely of public officials—is not considered a public entity under state law, making SLEAF data exempt from disclosure. 3

Much of the information IJ received through public records requests required additional steps to find totals for a given jurisdiction. For example, to derive statewide totals for Colorado, Louisiana and Ohio, IJ had to input data from all of the states’ individual agency reports. A few other states provided scanned lists of forfeitures, which also required manual data entry.

Based on the difficulties IJ had collecting forfeiture data using public records requests, even with a team of professional researchers, two things seem clear. First, it is unreasonable and unrealistic to expect ordinary citizens to navigate the process successfully. And second, although freedom-of-information laws serve a laudable goal in theory, they are deeply insufficient to ensure transparency and freedom of forfeiture information.

Continue Reading: Following the Funds

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