Close the Records or Lose the Money   

Eric Nalder calls it "reporting by moving in and hanging around." It's a technique the two-time Pulitzer winner and chief investigative reporter at the Seattle Times has mastered over the years.

When Nalder, 54, wants access to documents for a story--inevitably documents the government is reluctant to open up--he takes a psychological approach. He asks for information a little bit at a time until he is a fixture in the office.

"I literally move in. I have a desk now. I know where the bathroom is," he says. "Basically, what you do is train people how to help you."

It worked last summer--for a while at least--when Nalder was investigating the response of Washington state's justice system to crimes committed against elderly or sick people in nursing homes and adult care facilities. The project was inspired by the case of Linda David, a disabled woman allegedly held captive on a small sailboat and beaten by her husband for years despite numerous warnings to her caseworkers. Two days after the Seattle Times told David's story, her husband was arrested, charged with assault, and eventually committed to a mental institution.

Convinced David's case was not an anomaly, Nalder asked the state attorney general's office if he could look at every patient abuse case it had investigated since 1992, more than 1,600 closed cases. The office balked initially, citing privacy concerns. But the Times chipped away at that argument, convincing the office first to give up suspects' names, then patients' identities, then witnesses' names. Eventually, Nalder found himself set up in a government office in Tacoma with an assistant attorney general assigned to sit next to him at a conference table for weeks as he read through horrific file after horrific file.

Then it ended. After reading through half the files and racking up $2,000 in photocopying fees, Nalder got word he was being cut off by an unlikely source: the federal government.

The Office of the Inspector General of the U.S. Department of Health and Human Services threatened to cut off funding to the state Attorney General's Medicaid Fraud Control Unit unless the office quit showing Nalder the files. Washington's adult care community had gotten word of what Nalder was doing and alerted federal officials. Their argument was that victims and witnesses of crimes would be reluctant to come forward if they knew their names could appear in the newspaper.

The Times piled five reporters in a car to race to Tacoma to look at as many files as possible before they were cut off. But it was too late. "The end sort of took us by surprise," Nalder says.

Another surprise to the Times was an unlikely ally. Washington State Attorney General Christine Gregoire flew to Washington, D.C., to argue the newspaper's case before Inspector General June Gibbs Brown. Her argument: If the newspaper couldn't look into whether the system was working, who would?

Kathleen Mix, the state's chief deputy attorney general who made the trip with Gregoire, says her office had considered the same privacy concerns as the inspector general's office. But it concluded the public had the right to look at the files. "It was a very difficult decision and a very close call," Mix says. "A lot was at stake."

The inspector general's office didn't tell the Washington attorney general to stop handing over the records, says spokeswoman Alwyn Cassil. But it wanted the names and personal information omitted. The identities of victims and witnesses in patient abuse cases were never public information in the past and should not have been released to the Times, no matter how compelling its argument, she says.

"You have to protect the identity of the witnesses and victims," Cassil says. "Our position would be they could have written their story without naming the victims."

In the end, the Seattle Times lost. The inspector general's office lifted its threat of halting the flow of federal dollars, but the state attorney general's office reviewed its access policy for the Medicaid fraud unit. Thanks partly to stricter state privacy laws that went into effect in late July, the newspaper was denied access to the information it wanted. All names, personal information and identifications were taken out of the records. The Times considered filing suit, but editors felt Nalder already had enough to write his piece.

"There was never any doubt we were going to publish a good story," says David Boardman, assistant managing editor for investigations, business and sports. "I felt people in government were trying to hide behind ostensibly protecting the right of privacy of those patients."

With the help of Kim Barker, a Times social services reporter, Nalder spent months locating the victims and witnesses from some of the patient abuse cases he read about.

On December 12, the Times led with a story about Janice Ann Harris, who died in 1995 in a nursing home when her breathing tube was ripped out. The Times reported that police failed to investigate until a nurse confessed two months later. Over five days, the paper's "No Justice for Throwaway People" series cited nearly 50 examples of the state's failure to investigate or prosecute cases of abuse, rape and murder of the disabled, elderly and ill.

The stories drew hundreds of phone calls, letters and e-mails from readers and helped push along at least four bills in the state Legislature to reform the system. One bill proposes requiring criminal background checks for caregivers who work with the elderly or disabled; another proposes a new crime, criminal mistreatment in the third degree, for those who deny basic care to vulnerable adults and children. The state attorney general's office, which had been looking at how it handles these cases, beefed up its team.

Though it is unusual to have the federal and state government openly battling over whether records should be public, the ultimate result is sadly familiar, says Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. Lately, state governments have been closing records that were once open, or they are considering legislation that will limit public access to information, she says.

"There is nothing that has me more alarmed," Dalglish says. "In state after state after state, this is going on."

Stricter privacy laws can be traced, in many cases, to the public's annoyance over telemarketers and direct mail firms getting their addresses and phone numbers. Newspapers and other media organizations have been filing an increasing number of lawsuits to keep records open, with mixed results. The solution, Dalglish says, may lie in doing more stories like the Seattle Times' "Throwaway People" series that remind readers there is a benefit in disclosure.

Journalists "need to do a better job reporting why these public records are open," she says. "You just have to get the public used to reading these kinds of stories."