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Why TINA.org sent open records requests to all 50 states and it's vital for complaints to be public.
| Fran Silverman
A while back, TINA.org got into a legal battle with Utah because the state would not provide copies of consumer complaints filed against several companies we were investigating for deceptive marketing practices.
TINA.org routinely files records requests under the Freedom of Information Act (FOIA) with federal and state consumer protection agencies typically seeking copies of consumer complaints, warnings sent to companies and actions taken against businesses. When Utah refused our request for the complaints under its Government Records Access and Management Act (GRAMA) we were surprised. It led us to wonder, how much of an outlier is Utah? How many other states also refuse access to consumer complaints filed with state consumer protection agencies?
So, we launched a project in the spirit of FOIA and sent public records requests for consumer complaints against a multi-level marketing company we were researching to the other 49 states.
Lo and behold, this was not an easy task. It took a while. Several months in fact. And it was tricky. As a journalist, I am no stranger to FOIA. In fact, requesting information from government agencies is a key tool in investigative journalism and I’ve made hundreds of requests in my career. But each state has its own open records laws and procedures for accepting requests and it wasn’t simple to figure out how to proceed in each state. Sometimes it took a lot of digging and persistence (I’m talking to you, New Jersey) to get the requests into the proper hands – an issue in and of itself that made me wonder how a citizen not steeped in the finer points of filing requests would manage.
Some states provide online request forms. Other states require that you mail or email the request. And one state, Kentucky, requires you fax it (faxing is so 1980s Kentucky).
But once we got through all of that, we found mostly good news. An overwhelming majority—44 states or 88 percent — release some information regarding consumer complaints, ranging from the full complaint (TINA.org allowed for the redaction of personal identifying information such as names, addresses and phone numbers of the consumers who complained) to just the number of complaints.
Three states stand out as leaders in open government. New Hampshire, Hawaii and Oregon provide an online searchable database of complaints against businesses filed with state consumer protection agencies, making it super easy for a consumer to access the information. South Carolina also gets commendation for providing an online Buyer Beware list regarding businesses that have not responded to complaints filed against them or did not provide the promised resolution to a problem. (Special kudos also to Connecticut, TINA.org’s home state, which responded within the same day to our FOIA request for information. Go Nutmeg State.)
On the other end of the spectrum are Alaska, Arizona, Minnesota, Oklahoma, Pennsylvania, and Rhode Island, which will not disclose any information about consumer complaints.
Some states had very interesting caveats to releasing consumer complaints.
Tennessee and Arkansas only release the records to state residents. (I guess if you have a friend or family member in those states you can ask them to file a FOIA request for you. Or you can temporarily move to the state. But I digress.)
Based in part on our fight to obtain access to consumer complaints, Utah changed its open records law. The state will now disclose complaints but only if 50 or more have been filed against a business in the past four years or if a consumer claims to have lost more than $3,500. (Utah, Utah, Utah –glad you opened some records, but come on, that is a pretty tough restriction that ends up keeping most complaints under wraps.)
Another troubling matter is that more than 20 percent of states did not meet the deadlines for response times set by their own open records laws.
Why is this all so important that we’d dedicate almost a year of our staff time (and we have a small staff) to pursue this project? It’s because consumer complaints provide important information on how a business operates in practice, thus forewarning consumers about potential problems. And states that don’t allow consumers to view these are not only keeping this potentially vital information from them, they are also severely limiting the public’s ability to monitor whether government officials are doing enough to protect them from unscrupulous enterprises by pursing legal action against them.
One argument for keeping these records from public view is that it’s rare that a business will not have some unsatisfied customers. That is indeed true and there could be complaints that aren’t really substantive. But certainly, consumers can responsibly evaluate complaints, separating inconsequential peccadillos from weighty issues. If consumers take the time to write to their state consumer protection officials that a company, for example, is offering a free trial but then repeatedly charged their credit cards, that’s an issue a customer checking into a business should know about.
As TripAdvisor senior vice president Adam Medros said at a Congressional committee hearing on a bill that would prohibit companies from using gag clauses to prevent consumers from posting negative reviews consumers and business are harmed when their voices are silenced:
The consumer is improperly censored. The consuming public-at-large is less informed than it otherwise would be about the quality of service – or lack thereof – at a given business. Even the business doing the silencing is harmed, as it loses the opportunity to learn from the experience of its customers.
This holds true too if state agencies keep consumer complaints hidden from public view.
More so, if these complaints are piling up but the state hasn’t taken action, consumers should know that too and ask why.
Find out where your state stands and take action. Here is a link to TINA.org’s full report and a state-by-state breakdown of how to file a request. If you get denied, appeal. Many states have wiggle room in their laws for getting access to the complaints. If your appeal gets denied, reach out to lawmakers and get them moving on clarifying the public records laws to make sure all consumers can view complaints.
After all, as James Madison said: “The diffusion of knowledge is the only guardian of true liberty.”
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