Ronald Reagan moved into the White House in 1981. The American hostages came home from Iran that year. And IBM introduced its first personal computer, with a $6,000 price tag and an operating system by a company most people had never heard of: Microsoft.
That was also the year Seth Rosenfeld mailed off a request to the FBI for records under the Freedom of Information Act. Rosenfeld was a journalism major at the University of California at Berkeley and a writer for the campus paper, the Daily Californian. He wanted to find out about the FBI's history of political skulduggery at Berkeley and hoped the records he requested would shed new light on it.
"So," Rosenfeld remembers, "I thought, I'll just submit this FOIA request and I'll get these records and I'll write a story. And I'll be done in a year or so."
It took a good deal longer--more than 17 years--during which time the FBI did everything possible to keep the records secret: stalling, evading, appealing court rulings. Only after orders from five different federal judges
did the FBI begin to surrender information in earnest.
Once it did, Rosenfeld was amazed at how much stuff the agency had been hiding. From 1996 through 1998, dozens of boxes arrived at the offices of his pro bono attorney. "We had to get a pickup truck," says the reporter.
The documents--more than 200,000 pages--occupied two rooms of his six-room flat. It took him several years to sort through them all, do the follow-up reporting and write his story, which explained how the FBI had conspired, sometimes unlawfully, with then-Gov. Reagan to discredit campus liberals and radicals.
The story ran in the San Francisco Chronicle, where Rosenfeld now works, on June 9 of this year.
As Rosenfeld discovered, government officials are loath to part with their secrets. But lately, the problem has grown worse. Openness in government is under broad attack throughout the United States--at every level. Using the threat of terrorism as a rationale, the Bush administration has been moving fast to erect new barriers. But state governments also play the terrorism card.
In New Jersey, Gov. James McGreevey tried to seal more than 500 categories of public records this summer by executive order. Under press and public pressure, McGreevey eventually reopened most of them. He had based his actions on national security, although many of the records had nothing to do with security.
A greater threat, in the long run, comes from well-intentioned advocates of personal privacy who fear that, in the computer age, more public access means less security for individuals. The privacy movement has been under way for more than a decade, gathering public support and scoring some notable legislative successes. Driver's license information--a fundamental public record if ever there was one--has been restricted in many states. And basic medical news--such as the condition of a hospitalized crime or accident victim--may soon become unattainable.
The personal privacy issue makes the case for open government much trickier now than ever before. In an age when the most intimate, embarrassing details of a couple's divorce may end up on the Internet, for all their neighbors to read, the standard arguments for openness grow less persuasive. Ken Paulson of the Freedom Forum's First Amendment Center writes that the public is "willing to handcuff the news media if that's the price to be paid for shoring up personal privacy."
Last February, fresh from a discouraging legal fight over autopsy records in Florida, the editor of the Orlando Sentinel, Tim Franklin, told an Investigative Reporters and Editors workshop: "We are confronted with a broad move toward secrecy and restricted public access that could reshape how Americans do business and monitor their government for decades."
Faced with such a challenge, most of the journalism community has not risen to the occasion. It has not marshaled the money, time, legal commitment or sense of conviction necessary to fight back.
Writing in the IRE Journal this spring, Charles Davis, executive director of the Freedom of Information Center at the Missouri School of Journalism, describes "the docile reaction from reporters and newspaper editorial boards, who seem reluctant to enter the fray."
The head of the American Society of Newspaper Editors' freedom of information committee says that when it comes to challenging government secrecy, he finds "a lack of real passion all across editorland." Douglas C. Clifton, editor of Cleveland's Plain Dealer, says many newsrooms place so little emphasis on freedom of information "that reporters accept as a given that they are going to be shut out of open records."
"Reporters are more than willing to go to court," Harry Hammitt, the editor of Access Reports, a Virginia-based government watchdog publication, has observed, "but editors and publishers have decided they don't really want to spend the money."
The lockdown on public information hardly began with George W. Bush. Seth Rosenfeld can attest to that. So can Max Jennings, former editor of the Dayton Daily News, which in the mid-1990s published an award-winning series on military courts-martial. The paper's struggle to get information under FOIA was so frustrating and time-consuming that it led Jennings to declare, in a 1996 interview with Quill, "The FOIA simply doesn't work most of the time for journalists. There are few news organizations and reporters who have the patience, money and determination to work through what seems an inevitable series of appeals, requests and other roadblocks."
But Jennings was describing the good old days, under President Clinton's relatively information-friendly attorney general, Janet Reno. In October of last year, Reno's successor, John Ashcroft, issued a memorandum to all federal agencies announcing a stricter policy. Henceforth, he wrote, agencies could refuse FOIA requests whenever they could find any legal basis for doing so. He promised that the Justice Department would stand behind them.
At an IRE conference in San Francisco in June, Seth Rosenfeld said he had seen "a real big change in the government's response" since the Ashcroft memo. Rosenfeld is still waiting for the FBI to release records. But now, he said, "They don't return calls. They don't answer letters. We have new requests that are pending, which are just languishing. And records that were supposed to be released have just become even slower."
I have a source who has witnessed blatant defiance of FOIA within the Department of the Interior, the Environmental Protection Agency, the Department of Labor and other agencies. "There was a dramatic, clearly visible change throughout these agencies after Bush came in," the source says. "Sometimes the Clinton people would be reluctant but they would go ahead and obey the law. These guys have meetings and try to figure ways to have FOIA requests delayed....
"Normally, before Bush, we just played it by the book. But I'm saying within weeks of the Bush administration coming into power, we noticed that when FOIA requests were made, they were deliberately delayed."
One case dealt with a technical report sought by journalists and labor union officials, which my source described as "a critical report that would have helped the public be more aware of hazards to their health and safety." The government delayed releasing the report and related documents for many months. "I knew that the FOIA request had been made, and I knew the data was there. The attorney [for the agency] told me the agency was violating every FOIA law known to man by not releasing these documents, by deliberately stalling, by even hiding some things."
The documents finally were released, but only after the information had been leaked through other channels and published. Had it not been for that, my source believes, the government might never have complied with the FOIA request, because the information was damaging to business interests friendly to the administration.
Watergate figure John Dean has called the Bush administration "startlingly Nixonian" in its passion for secrecy. William Powers of National Journal writes: "This administration keeps secrets like nobody in Washington has kept secrets for a long time--maybe ever." Journalist Bill Moyers said recently: "Not only has George W. Bush eviscerated the Presidential Records Act and FOIA, he has clamped a lid on public access across the board."
The White House failed to respond to repeated requests for comment for this article.
Some of the administration's most widely reported actions are the Ashcroft memo on freedom of information, the secret imprisonment of more than 1,200 foreigners on American soil, the closing of once-public deportation hearings, the proposal for secret prosecutions by military tribunals, Vice President Dick Cheney's refusal to release the names of those who advised his energy task force, and efforts by the Pentagon to shield the conflict in Afghanistan from the eyes of reporters.
Less widely reported is the administration's effort to exempt its proposed new Department of Homeland Security from both whistleblower protection and, in part, from the FOIA.
When I asked Paul McMasters, the Freedom Forum's First Amendment ombudsman, for his assessment of the proposed FOIA exemption, he said it "would blow a gaping hole in the Freedom of Information Act. It is very troubling."
(FOIA establishes every citizen's right to federal records. It declares all such records public except for specific exemptions, and it allows anyone to sue if the government fails to produce requested records in a timely manner.)
In what was, perhaps, the administration's boldest move, Bush on November 1 issued an executive order declaring that presidents are not required to follow the Presidential Records Act.
This act was passed in 1978 in reaction to the Watergate scandals and to President Nixon's failed attempt, after resigning, to take possession of the records of his presidency. The law requires the unsealing of papers of a former president 12 years after he leaves office. This gives the ex-president exclusive access for a long enough time to write his memoirs. After that, the papers revert to the public and to posterity.
Bush countermanded that requirement late last year, just as records of the Reagan administration--in which Bush's father and many top members of his present administration served--were about to enter the public domain. Because of Bush's executive order, more than 68,000 documents remain sealed.
There has been remarkably little complaint about this maneuver in the media.
Bad as things are in Washington, they may be worse at the state and local levels, where the problem gets less attention.
During the 1970s and 1980s, using the federal FOIA as a model, all 50 states either passed new laws or strengthened their old laws on open records and open meetings. These "sunshine laws" have been invaluable in keeping government honest. However, almost as soon as a sunshine law is enacted, its enemies set out to weaken it.
In 1998, a legislative task force in California reported that the state's Public Records Act had been "interpreted, reinterpreted and fiddled with to the point that it has become of little appreciable value to the public." In an analysis published last spring, the California First Amendment Coalition agreed with that assessment. It cited rulings by state courts allowing police to keep certain records secret even after investigations are closed; allowing city council members to withhold phone records that might reveal who was influencing their official actions; and allowing officials to hide documents showing how they reached decisions.
Even when the laws are clear, officials tend not to honor them. In Indiana, says Larry Lough, editor of Muncie's Star Press, "There's no criminal penalty for not giving a record, but if you give a record that you're not supposed to, it's a misdemeanor for which you can be charged. So the safest thing to do in Indiana is, don't give it to them."
Another problem, Lough and others say, is that most public officials don't receive enough training on how to handle requests for public information. Many are totally ignorant of their states' sunshine laws.
Here are some examples of how local officials have responded to requests for supposedly open records:
• Last year, when Jay Young of Pennsylvania's Altoona Mirror asked a clerk in Cresson Township for a public record, the clerk called the police. According to Young, the police chief told him he'd have to make his request in writing. After he wrote out the request, Young says, "the police chief said it might as well be ripped up, since there was no good reason for the request."
• In East Cocalico Township, Pennsylvania, Linda Weiner Seligson of the York Daily Record was ushered into a windowless room in 1998 and questioned by the police chief after she requested the log of police calls, a document supposedly available to anyone. "When I told him I thought I was allowed by law to see these records," Seligson says, "he replied: 'You are not.' "
• After the sheriff of Edwards County, Illinois, balked at releasing a document in 1999, a reporter took out a copy of the state's open records law and showed it to him. The sheriff wadded it up, threw it away and said, "I don't have to tell you nothing."
• Two years ago, when John McCormick of the Des Moines Register asked to see gun permit records in Knoxville, Iowa, a sheriff's deputy told him, "None of the sheriff's department records are public." When reporter Thomas O'Donnell made the same request in Decatur County, the sheriff there threatened to arrest him if he did not leave the courthouse. The sheriff also asked to see O'Donnell's driver's license, and the information on the license was included in an advisory to other sheriffs warning that O'Donnell was asking to see public records.
These are not rare, hard-to-find cases. In the last five years, hundreds of cases of open defiance have been documented by reporters conducting organized tests of their states' sunshine laws. These tests, sometimes called "freedom of information audits," are the most objective evidence we have of how often officials ignore state open records laws. During the audits, reporters for a consortium of newspapers fan out across a chosen area, usually an entire state, asking for records that the law says are open to any citizen--the minutes of a council meeting, the arrest records at a local jail, perhaps the employment contract of the school superintendent. The participating newspapers then tabulate their findings and write stories.
I have read summaries of 32 of these audits in 25 states, and almost without exception they document massive violations of the law. A California audit reported that officials turned down legitimate requests for information 77 percent of the time. A Connecticut audit found only a 22 percent rate of compliance. In Massachusetts the compliance rate was 25 percent. An audit of 200 state offices in Missouri reported that "44 percent of the offices violated the Sunshine Law, either by not responding to requests in a timely fashion, denying requests or ignoring requests altogether." (A list of these audits can be found at the Freedom of Information Center's Web site: foi.missouri.edu.)
In a story describing an FOI audit in Illinois, Christopher Wills, an Associated Press reporter in Springfield, wrote this summation: "Ask for public documents in Illinois and you may get hostile questions, bureaucratic delays, even threats from a sheriff or two. What you won't get, in many cases, is the information you wanted."
In 1989 a young man named Robert John Bardo dealt a serious blow to the cause of open government – although that isn't what he set out to do. What he set out to do was murder an actress named Rebecca Schaeffer.
Bardo, 19, a fast-food worker from Tucson, developed a fixation on Schaeffer, 21, who had appeared in the television sitcom "My Sister Sam" and was embarking on a movie career. According to press reports, Bardo built a shrine composed of Schaeffer's media photos and videotapes. When he saw the actress in a bedroom scene in a movie, he reportedly decided she had to be punished.
Bardo hired a detective to find out where Schaeffer lived. It wasn't hard to find out; the detective went straight to the California Department of Motor Vehicles and looked up her driver's license, which was a public record.
One July morning Bardo went to Schaeffer's West Hollywood apartment and pressed the buzzer. When she came to the door, he shot her in the chest.
Schaeffer's murder marked a turning point in the freedom-of-information debate. By encouraging a popular movement against open records, this crime was to have serious consequences for journalists--and the public's right to know--throughout the country.
It prompted the California Legislature to pass the country's first anti-stalking law, but more to the point it helped influence Congress to pass the Driver's Privacy Protection Act in 1994. The law prohibited states from disclosing a driver's name, address, photograph, Social Security number or telephone number without the driver's consent. (See "License Revoked," November 1995.)
Civil libertarians applauded the legislation. So did women's organizations, which were concerned about the stalking, assault and even murder of women by ex-husbands, ex-boyfriends and others, who often tracked down their victims through driver's license records. Sen. Barbara Boxer, D-Calif., a sponsor of the bill, argued that women "who move to escape an abusive relationship shouldn't have to choose between registering a car and maintaining their safety." The law was also seen as protection for reproductive health care providers and their patients. These people were sometimes harassed by anti-abortion extremists who used license plate numbers to find out where they lived.
The state of South Carolina sued the feds over the new law, because South Carolina had been selling its database of driver's license information to mass marketers and didn't want to lose the revenue from those sales. In fact, many states were earning millions each year by selling this information to commercial databases.
By the time South Carolina's case reached the U.S. Supreme Court in 1999, there was a burgeoning public concern about stalking, identity theft, intrusive telephone solicitations from marketers and a host of other infringements on the peace and privacy of ordinary citizens.
The selling of private information--not just by governments but also banks, insurance companies, mortgage lenders and even medical facilities--was by then routine. Information from product warranty cards, credit cards, Web sites and other sources was assembled into lists of computerized dossiers, to be sold to marketers for target advertising, to government for law enforcement purposes or to private detectives.
No aspect of a person's life was off-limits. The assembled lists included people's addresses, phone numbers, Social Security numbers, credit card activity, shopping preferences, arrest records, credit history, income, race, ethnic background, hobbies, reading habits, Internet browsing habits, religion, political affiliation, drinking and smoking habits, gambling activities, charitable giving, clothing size, product ownership, pet ownership and health information.
The digital profiling industry had $10 billion in revenue in 1999, by one estimate, and was growing rapidly. One of the commercial profiling companies, Experian, claimed to have profiles on 98 percent of American households.
Predictably, stories of abuses began to appear. A man lost his job after his Social Security number was confused with that of a convicted felon. A woman had trouble getting health insurance because an information clearinghouse said, erroneously, that she had heart problems and Alzheimer's disease.
One profiling company was using prisoners to input personal information from surveys. This resulted in a stalking case in which a prisoner--a convicted rapist and burglar--harassed an Ohio woman based on the information she had submitted on a survey. The woman received threatening mail from the man, who knew everything about her, from the magazines she read to her preferred brand of bath soap.
A case in Florida, which came to light this summer, shows the kind of games marketers can play with people's medical and psychiatric records. A group of people with histories of mental depression received unsolicited free samples of Prozac in the mail along with this friendly message: "Congratulations on being one step to full recovery."
In response to such abuses, an army of privacy advocates appeared on the political battlefield. The more the public became aware of the problem, the stronger this privacy movement became. And it was in this climate that the Driver's Privacy Protection Act reached the Supreme Court.
The court surprised some observers by going against its recent strong tendency to favor states' rights, and in January of 2000 it ruled to uphold the DPPA. The vote of the justices was unanimous. The ruling required states to crack down on the dissemination of motor vehicle records.
And journalists--not to mention their readers, viewers and listeners--are feeling the impact. Edward Seaton, editor in chief of the Manhattan Mercury, describes the difference this ruling has made in his state of Kansas. "Now," Seaton says, journalists "can't tell you if the school bus drivers in our region have any kind of driving record--DUIs, reckless driving. We can't do a story like that anymore."
Anders Gyllenhaal, editor of Minneapolis' Star Tribune, recently headed a study for ASNE on freedom of information. He sees the loss of driving records as a terrible precedent. "When we lose access to that, we lose a great deal," he says. "If driver's licenses are not public records, what about voter registration, births, deaths, all those fundamental databases?"
Voter registration lists are already a target. In Florida, as a privacy protection, the Legislature has already closed the state's voter lists to public scrutiny.
"I don't think you should discount the seriousness" of the driver's records precedent, says Rebecca Daugherty, director of the Reporters Committee for Freedom of the Press' Freedom of Information Service Center. "You're beginning to see the federal government, both Congress and the executive branch, come up with the idea that they can now require states to keep information confidential under some kind of a federal ruling."
A new health insurance law is having an even more damaging effect on health care information than the DPPA had on driver's license records. The main purpose of the federal Health Insurance Portability and Accountability Act, passed in 1996, was to give people easier access to health insurance. But it also included tough new privacy provisions, with guidelines to be established by the Department of Health and Human Services. In 1997, HHS Secretary Donna Shalala went before the National Press Club in Washington to explain why the government wanted to restrict the release of medical information.
"Until recently," Shalala said, "at a Boston-based HMO, every single clinical employee could tap into patients' computer records and see detailed notes from psychotherapy sessions. In Colorado, a medical student copies countless health records at night and sells them to medical malpractice attorneys looking to win easy cases. And, in a major American city, a local newspaper publishes information about a congressional candidate's attempted suicide--information she thought was safe and private at a local hospital."
Shalala made a compelling case.
After several years of preparation, the new rules are scheduled to take effect on April 14, 2003. But already, in anticipation, hospitals and other health care facilities have begun to comply.
"We have a running battle with our hospital here," Seaton says. "We can't get anything out of them." The Manhattan Mercury used to run a column listing the patients in the local hospital, but now, he says, the hospital won't cooperate. "They won't put out condition reports. They won't tell you whether someone's a patient. We historically ran all the births. We can't get the births from them anymore."
Several First Amendment organizations have asked HHS to revise its rules so the public and the press can get this kind of information. The rules, as now written, "effectively censor news reports on everything from basic hospital information about patients who are victims of violent crime, traffic accidents or natural disasters to investigative reporting concerning health-care fraud, patient abuse or environmental hazards," the Allied Daily Newspapers of Washington Inc., wrote in a commentary filed with HHS.
According to Charles Davis, writing in the July/August IRE Journal, the rules would also deny access to the kind of medical records that "tell us about poorly managed health care systems, the abuse of elderly in nursing homes, unethical research projects and abuse of children in foster care."
The rules apply not just to doctors, nurses and hospital employees but to any health care provider, even an ambulance driver. The law allows for massive penalties against anyone disclosing unauthorized information--civil fines of $100 per incident up to $25,000 a year and criminal penalties as high as $250,000 or 10 years imprisonment. Facing the threat of such punishment, Daugherty says, hospitals and their employees will surely play it safe and err on the side of secrecy.
The rules could provide stiff penalties for whistleblowers who tip off journalists to health care abuses. It isn't difficult to think of important stories that have been based on such insider tips. Daugherty cites a few, including the Orange County Register's revelations of fraud by University of California fertility doctors, which won a 1996 Pulitzer Prize, and the Seattle Times' recent series on the conflicts of interest of health care providers involved in experimental treatment programs.
"Those kinds of stories simply couldn't be done under these rules," she says. "And no one seems to care."
HHS has turned a deaf ear to the complaints of Daugherty's organization and others.
Surveys repeatedly show that most people object strongly to the privacy abuses that became common in the 1990s. Politicians, lobbyists and law enforcement officers, seizing on this public mood, have made privacy a catchall excuse for keeping almost anything secret. When a reporter in Fond du Lac County, Wisconsin, asked for an arrest record, a deputy sheriff said, "If you were arrested, you wouldn't want your name released, would you?"
The Reporters Committee for Freedom of the Press has cited the case of an online news service in Texas that was denied information about a sheriff who pleaded guilty to drug charges. Federal agents seized the sheriff's horse trailer, which contained 2,500 pounds of cocaine, but the government contended that releasing information about the case would violate the sheriff's privacy.
And after September 11, as the federal government rounded up more than 1,200 people and held them in secret detention, Attorney General Ashcroft explained that their names could not be released because to do so "would be a violation of the privacy rights of individuals."
No matter how ridiculous these examples may seem, the question of privacy in the digital age presents serious challenges for journalists. Gyllenhaal calls privacy "a huge wild card" and says that, from now on, "if newspapers want to hold onto their access to public records, we're going to have to be a lot smarter than we have been."
"The FOI struggle," he says, "for a generation of journalists has been between the government on one hand and the media on the other. It's been a pretty evenly matched struggle. I think we can feel proud of some of the accomplishments we've made.
"But now, suddenly, there are so many more players and so many more forces out there--technology, public security issues--that FOI has blossomed into a much more difficult issue."
To see how lawmakers might resolve these questions, one state to watch is Florida. A classic case arose there last year, after the popular NASCAR driver Dale Earnhardt crashed into a concrete wall at the Daytona 500 and died.
One week earlier, writer Ed Hinton of the Orlando Sentinel had published stories explaining that the failure of NASCAR's drivers to use certain safety devices, including a Head and Neck Support (HANS) system, was causing unnecessary crash deaths.
Although NASCAR said a broken seat belt led to Earnhardt's death, the Sentinel thought he might have died from the kind of "head-whipping" injury that HANS is designed to prevent. The paper asked to have an independent expert examine the autopsy report, including autopsy photographs, to answer that question.
"The vast majority of NASCAR fans mistakenly believed that we wanted to publish the photos," Editor Tim Franklin says. "Very few had any idea that we had just spent six months investigating NASCAR driver safety." After Earnhardt's widow, Teresa, appeared on television declaring that she didn't want photos of her husband's body displayed in public, angry racing fans bombarded the newspaper with more than 15,000 e-mails, letters and phone calls. "Dozens of death threats poured in," Franklin says.
After reaching an agreement with Teresa Earnhardt, the newspaper's medical expert was allowed to view the autopsy photos. From this, the expert concluded that Earnhardt did not die of injuries resulting from a broken seat belt, as NASCAR had said, but from a head-whipping injury. Not only did the Sentinel have the satisfaction of being proved right, but late last year NASCAR mandated that all its drivers begin wearing the head and neck restraining devices.
However, while the controversy burned, the Legislature rushed to pass an exemption to the state public records law sealing autopsy photos from public view. In the emotional atmosphere, "Florida's open government advocates were overwhelmed in their efforts to conduct a rational debate," Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, later wrote. Gov. Jeb Bush signed the bill into law with Earnhardt's widow by his side.
Jon Kaney, a lawyer who represents newspapers and other open government interests in Florida, says the prospect of the Earnhardt photos showing up on the Internet made all the difference. "The sole reason for passing that exemption," Kaney says, "was to prevent the operators of ghoulish Web sites from publishing photos of his mangled body." Apparently, the fear of Internet publication wasn't farfetched. During the struggle, Kaney says, the operator of an Internet site was lurking in the wings, trying to get his hands on the Earnhardt photos.
The state Legislature recently appointed a committee to recommend ways of dealing with such problems without sacrificing the state's commitment to open government. Some in Florida are beginning to argue that all public records should not be treated equally. As Barbara Petersen, president of the First Amendment Foundation in Tallahassee, says, "Information that is not sensitive when it is buried in a 20-page document could become very sensitive when put on the Internet."
Some therefore suggest a two-tier system, under which some records would be available in every form, including online, while others would be available only to those who took the trouble to visit a government office.
Lawyers in Florida now speak of sheltering public records from "jammies surfers." Kaney explains: "If your neighbor gets a divorce, you're not going to drive over to the courthouse and get the file. But in your jammies you can go online and look it up."
Most journalists would hate to settle for a two-tier system that sacrificed online access.
But journalists face more than just a fight over open records. They are being challenged to justify their very legitimacy.
Many people would agree with Bob Garfield of WNYC radio's "On the Media" when he said recently that the public "is mostly sympathetic with the government in its increasing restrictions. I think what they see is a knee-jerk reaction from the press, which wants to sort of compulsively have access to material that the public doesn't quite get why the press has to have."
The Bush administration encourages such thinking. In its not-very-subtle contempt for journalists, the administration sometimes appears to be saying that the press has no valid independent role to play in society. In a July 12 article in National Journal, White House correspondent (and AJR contributor) Carl Cannon wrote that reporters who cover the Bush White House "believe they are being not only used, but also disrespected--and prevented from doing their jobs properly." Cannon said this goes far beyond the usual gripes of White House reporters.
War correspondents in Afghanistan have not only been hindered in their work but sometimes bullied by the military (see "On Their Own," May). On January 10, the Pentagon ordered its troops not to allow photographers to transmit images of prisoners. On December 6, Marines herded a group of journalists into a warehouse so they couldn't see the effects of a stray bomb that had fallen on friendly troops near Kandahar.
When the federal government treats the press as an illegitimate presence, it is natural that some lower-level officials might do likewise. Oklahoma law enforcement officers provided a good example following the May 26 collapse of a bridge on Interstate 40, which killed 14 people whose cars plunged into the Arkansas River.
Sheila Stogsdill, a reporter for the Daily Oklahoman, was in a public park near the scene of the bridge collapse when officers tried to force her to leave. Like a good reporter, she refused. According to a story in the Oklahoman, John Hnath of the Tulsa medical examiner's office "ordered local police to arrest her."
"Officer Luke Morris handcuffed the reporter and took her to the nearby police station," the newspaper wrote. "Moments earlier, Johnny Pollard, a city councilman for eight years and a part-time police officer, had shouted: 'Arrest her! Arrest her! Handcuff her!' " Stogsdill said she was never told what crime she was supposed to have committed.
That same day, according to other news reports, state troopers tried to evict a Tulsa television station crew from private property where, with the landowners' permission, they had set up their cameras. Three reporters interviewing a relative of a victim on the town square were threatened with arrest unless they left immediately. A Muskogee County sheriff's deputy told yet another reporter he would be arrested for interfering with a federal investigation if he kept interviewing people on the street. And a number of print and broadcast journalists were corralled onto a convenience store parking lot nearly two miles from the scene of the accident.
A Dallas television reporter, Brett Shipp, recorded similar threats on tape. After National Guardsmen told him to leave, Shipp could be heard on the tape arguing that it was unconstitutional to order him off a public street. "I will go to jail if I have to," Shipp says on the tape, to which an official replies, "You will probably have to."
None of the harassed reporters was arrested or charged with any crime.
Who will lead the fight against such secrecy, ignorance and contempt for the public's right to know? Although the giant media companies--AOL Time Warner, Disney and the like--are rich and powerful, their primary concern is not with journalism. The Center for Public Integrity reported this year that these media interests "lobby on issues ranging from protecting intellectual property to eliminating the death tax. They've fought against restrictions on tobacco advertising in print and alcohol advertising on the air, for eliminating the FCC's rules designed to prevent the concentration of the public airwaves and the press in too few hands, and to block any attempt to give candidates free air time."
The center's only reference to First Amendment issues was to note that lobbyists for Big Media "have consistently raised First Amendment freedoms as a carte blanche protection against any regulation of violent content broadcast over the airwaves."
Neither has the fight been taken up by leaders of the major newspaper chains. As the challenge to open government has grown, many of these companies have responded by cutting the budget for newsroom training (an important element in any organized resistance effort) and by allowing their papers to downsize or eliminate state capitol bureaus (see "Sad State," June).
Fortunately, at the grassroots level, one finds examples of editors and reporters fighting back in an effective way. This year, when it appeared that Florida lawmakers might pass scores of bills weakening the state sunshine law, a group of editors organized "Sunshine Sunday," a collaborative effort by 25 Florida newspapers and several radio and TV stations. All agreed to editorialize on the same day--March 10--about the threats to open government in Florida. By the end of the session, only 10 bills had passed that would narrow public access to records, and most of those were deemed harmless by open government lobbyists.
After ordering more than 500 categories of information exempted from New Jersey's Open Public Records Law this summer, Gov. McGreevey backed down under withering criticism from newspaper editorial writers and good-government groups, keeping most of the records open.
Idaho's journalists also blocked an assault on public records this year. Press organizations and reform groups sprang into action after seven bills were filed in the Legislature aimed at restricting access. In the end, only one bill passed, after being modified to actually strengthen the open records law. "Idaho came through this nationwide assault on openness in government remarkably unscathed," Betsy Russell, president of the Idaho Press Club, wrote in the organization's newsletter.
These are not the only examples. Some of the FOI audits conducted in recent years have resulted in significant reforms. And in fact, it is worth recalling that practically every improvement in the open government laws since World War II--and every successful defense of those laws--has been due largely to the influence of the media.
However, in the present crisis, more is required. Members of ASNE's freedom of information committee are pushing for a nationwide campaign by journalists. The committee thinks this campaign should be led by newspaper editors.
The committee--composed of two dozen editors plus representatives of several nonprofit groups--has spent the last two years studying the problem and designing a plan of action. It has published a booklet, "The FOI Handbook," outlining its approach.
The committee's chairman, Doug Clifton, is now charged with implementing it. His goal is to form a unified front by coordinating his efforts with leaders of the Associated Press Managing Editors and forming closer ties with such like-minded groups as the Reporters Committee for Freedom of the Press, the First Amendment Center, the Society of Professional Journalists and OMB Watch, a government watchdog organization based in Washington.
Clifton's committee wants to help newspapers organize their newsrooms around freedom of information issues. This would mean much more training for reporters and editors, more frequent use of the sunshine laws and FOIA as newsgathering tools, and a more dogged insistence that officials stop withholding information. It would require spending the money to go to court whenever necessary. And it would mean much more editorializing on the issue, more news stories describing violations, more willingness to tell readers when they aren't getting all the facts. "Typically, you don't see stories in newspapers that such-and-such a record is unavailable," Clifton says. "You don't see many editorials in newspapers bemoaning the state of affairs."
He is putting together some public service ads on FOI issues that newspapers can run. And the committee is creating what he calls "a stump speech tool kit...that gives the busy editor the raw material to give speeches on behalf of freedom of information." Included would be specific examples of the harm that has been done because of government secrecy as well as the benefits that have flowed from transparency. The committee will also encourage newspapers to hold workshops to educate public officials on the sunshine laws.
Tim Franklin of the Orlando Sentinel is pulling together an FOI "strike force." This would be a network of editors with expertise, who could respond to problems as they arise by speaking at public forums, holding press conferences and appearing before legislative bodies. The strike force could also write op-ed articles geared to particular problems.
Clifton hopes the newspaper chains might be persuaded to underwrite some of the more costly aspects of this campaign.
Making all this happen, Clifton agrees, will require the cooperation of hundreds of editors. But are they up to it? Do they really have the stuff?
It isn't a good time to ask. Hodding Carter III, who heads the John S. and James L. Knight Foundation, came away from this year's ASNE convention with a sad assessment of editors' morale. "I've been going to ASNE for 52 years," he says. "I have never seen a time of more dispirit, more discomfort, more frustration, more fear, more resignation, more cynicism."
In an address to the organization, ASNE's outgoing president, Tim McGuire of Minneapolis' Star Tribune, sounded some of the same notes. He spoke of the fact that editors have been losing resources, respect and clout within their corporate organizations, and he described them and their newsroom staffs as feeling "scared," "powerless" and "isolated."
Last year, the ASNE committee tried to gauge editors' opinions on government secrecy and to gather a little basic information. For instance, it wanted to know how often newspapers had filed FOI requests and how successful those requests had been. The committee sent a questionnaire to the editors of 1,448 daily newspapers. One month later, only 247 papers had returned the questionnaire--a 17 percent response rate.
Even editors who aren't so apathetic--who care deeply about the problem--often hesitate to enter the political arena because they feel a conflict of interest in lobbying the politicians that their papers cover. "They are caught in a bind," the Freedom Forum's McMasters says. "There are those who agree this is a big issue and want to do something about it but are constrained by the ethical considerations."
Clifton sees "an instinctive reticence on the part of editors" even to write very much about FOI issues "for fear they'll be misinterpreted as self-serving. I don't think we've made enough of the reality that public access is just that--public access, citizen access." And so, says Clifton, the first crucial step in opening up the workings of government is not to persuade politicians or educate the public.
The first move, he says, is "to awaken editors to the threat."