Tom Curley, May 2004
Tom Curley
President and CEO
The Associated Press
The Hays Press-Enterprise Lecture
Riverside, California
May 7, 2004
Just a month ago AP sent reporter Denise Grones to Hattiesburg, Mississippi, to cover a speech by U.S. Supreme Court Justice Antonin Scalia. She ended up being the unwilling subject of her own story.
As Scalia spoke, a United States Marshal stepped in front of Denise and demanded that she turn over the digital recording she was making to back up her notes. She tried to say no, but the marshal ignored her and erased Justice Scalia’s words from memory on the spot.
In February, AP photographer Michael Derer was covering a train derailment near Woodbridge, New Jersey. When he stepped onto railroad property to try to get a picture of the wreckage, the local police who were controlling access to the scene packed him into a squad car and drove him away.
And in March not too far from where we are now, AP freelance photographer Michael Mariant was taking pictures of people entering the Santa Barbara County Courthouse on the morning when a grand jury would consider molestation charges against Michael Jackson.
One day earlier a judge had ordered the media not to identify or publish pictures of the grand jurors. Our photographer was across the street from the courthouse shooting images of peoples’ feet and backs as they lined up to go into the courthouse.
A sheriff’s deputy demanded his camera, flipped through his images, and deleted the ones that the deputy decided would violate the judge’s order. I should add that – leaving aside the question of whether the judge’s order was constitutional -- neither Michael nor the deputy really knew which of the people in the photos – if any – were actually grand jurors.
Of course, AP and these individual journalists had legal rights, and we called in the lawyers in each case.
But that doesn’t get us back the words and pictures we really wanted. They’re gone for good.
The point I want to make with these brief examples is an elemental one: the government’s power is overwhelming. It’s agents are armed and authorized to use force if they have to. Your lawyer may eventually have the last word, but in the moment when the power of the state first confronts you, your choices are between doing what you’re told the easy way or doing it the hard way.
Power, of course, is what gets things done. It provides essential services, maintains order, and keeps us safe.
But power will not restrain itself. Those entrusted with it have to be watched. That is not meant as a political statement or a character assessment. It’s just a basic law of nature. The powerful have to be watched, and we are the watchers. And you don’t need to have your notebook snatched by a policeman to know that keeping an eye on government activities has lately gotten a lot harder.
In fact, the government itself has actually told us so.
After the 9/11 terrorist attacks, the attorney general of the United States informed federal departments he was reversing the spirit of the Freedom of Information Act.
The essence of the FOI Act is that government information is open and accessible to the public unless there is a very good reason to keep it secret. But under the attorney general’s directive, department heads were told they should treat government information as secret unless presented with a very good reason to make it accessible.
The agencies eagerly complied. Up went the barriers. Down came the official Internet sites and document databases. Gone were expedited FOI procedures for reporter requests to many agencies.
By last summer, a government study determined that nearly a third of the federal officials whose duty is to comply with FOI requests reported they had succeeded in reducing the flow of information to the public.
The states appear to have fallen in step with the new spirit of secrecy. In a survey taken last month of AP chiefs of bureau around the country, more than half told us that state and local governments are making it much harder for us to do our jobs.
Here’s a quote from one: “I think the biggest frustrations are the increasingly aggressive attitude of government officials toward keeping secrets, and the necessity to retain legal counsel to challenge some of their actions.”
And another one said this: “The biggest problem areas remain at the lowest levels in government and law enforcement. The smaller the community, the more the top officials think they own the records.”
Government actions taken in the name of heightened national security and the war on terrorism are responsible for some of this, but by no means all of it.
State and federal judges seem more inclined than ever to issue gag orders, seal documents or even close proceedings in cases of all kinds, not just terrorism cases. All too often, they do this without bothering to hear arguments or make findings that the restrictions are necessary to assure a fair trial or to serve any other important public interest.
And no discussion of restricted information access would be complete without mention of the Health Information Portability and Privacy Act, the notorious HIPAA.
While it was passed with the praiseworthy goal of protecting the privacy of sensitive personal medical information, the law has turned out to be an object lesson in unintended consequences and a nightmare for journalists.
It is one of the most widely misunderstood laws on the books. Police officers sometimes tell journalists they believe they themselves could be charged with a crime if they disclose health-related facts about a suspect or a victim. Not true.
Hospital officials sometimes warn journalists that just reporting such facts could subject the journalists to criminal penalties under the law. Also not true.
By now, every news organization in the country has a file drawer full of HIPAA stories, and we certainly have ours. Last May, for example, some of you may recall that former President Gerald Ford suffered a dizzy spell on a California golf course. We heard he was rushed to a hospital in Rancho Mirage.
But when we called to find out for sure, the hospital consulted its lawyers and dummied up. They wouldn’t even tell us whether Ford was there.
Since it was a Saturday, we couldn’t reach anybody on Ford’s staff. It took us several hours to confirm even the sketchy details that were circulating.
Those were very long hours on our national desk. Here’s how one senior editor put it in an after-action report: “All I could think of was this: one of the five living former presidents might no longer be living, and we have no idea.”
We had similar trouble in March when police in Columbus, Ohio, arrested a man believed to be responsible for a series of sniper shootings along the interstate highways. Thanks to misplaced HIPAA paranoia, we were unable to get a copy of a missing persons report filed earlier by the man’s mother because it referred to the suspect’s mental health. HIPAA doesn’t just pose unreasonable obstacles to journalism. Our Chicago chief of bureau recently called his mother’s nursing home for a progress report on her treatment and was told that HIPAA forbade any such conversation over the phone. Yet some critics of the law say it contains loopholes that make it a poor guardian of privacy in ways that really matter.
Clearly, we’re in a time when the challenges to the public’s right to know are large and growing.
You would expect in such a time that news organizations would be mounting more determined efforts to meet and overcome those challenges. But that doesn’t appear to be the case.
Objections among the media to the attorney general’s post-9/11 directive to clamp down on agency FOI disclosures were muted at best.
In the aftermath of the terrorist attacks when federal grand juries began issuing secret indictments and agents rounded up alleged conspirators or material witnesses, most of us remained silent.
Nor did the collective news media rally immediately to the support of legal efforts to open up deportation proceedings against the hundreds of detainees of Middle Eastern descent who were taken into secret custody in the wake of the attacks.
That was an extraordinary time for the country. It’s entirely understandable – and reasonable – that the press and public were willing to step back for a time and give the government room to address an unknown and frightening threat.
The risk has always been, and remains, that this temporary relaxation of vigilance could gradually become business as usual.
Fighting the government for information access has never been easy. It costs a lot of money. It’s hard to win. And when you do win, the victory often as not comes long after the underlying news story has lost its immediacy.
Under the best of circumstances, FOI work tends to be all guts and not much glory. So, how much more tempting it is to back off on an FOI challenge when money is even tighter than usual . . . and you can tell yourself that there are good national security and public safety grounds for sitting this one out, and maybe the next one, and the next one. This could become a dangerous habit if we allow it to take hold, dangerous for us and for the society in which we play such a critical role.
Ours is a society of checks and balances. The designers of our system were under no illusion that freedom could ever survive and flourish just because it was a good idea. They wrote a constitution which recognizes that all power will expand to its limit because that’s what power does. But our constitution prevents tyranny by dividing up the power and using it to limit itself.
The story of public life in this country – the story we in the news business show and tell every day – is always, one way or another, about power and the important values and interests that drive its use.
National security is one such value. Public safety is another. Fair trials are another. Personal privacy is yet another.
And freedom to find out and report what’s happening is certainly another.
These important interests, and many more, compete and collide every day. None has an absolute right to prevail over all the others. The system depends on vigorous advocacy by all the competitors to achieve a workable balance. Our freedom hangs in that balance. Vigorous advocacy for open government is what I believe we need much more of today. I do not mean to imply any criticism of the abundant advocacy we already have. On the contrary, organizations like the Reporters Committee for Freedom of the Press, the Society of Professional Journalists, ASNE and dozens of other groups and individuals are thoroughly committed to this cause.
They accomplish a great deal, and we owe them a lot. They have raised all the alarms I’ve mentioned, and many more. Some of them provided early warning about HIPAA. We need to hear them and we need to help them.
News is our business. We are the watchers. Open government is the personal interest and constitutional right of every citizen. But we of the fourth estate have by far the greatest means and incentive to speak and fight for it.
The advocates of secrecy believe security, privacy and public safety are a lot more important than open government. It’s clear they’re fighting harder than ever to portray the First Amendment as a luxury the country can’t afford right now. They’re using every available tool at their command to do so.
To preserve the balance of forces that guarantees liberty, I believe we have to do the same.
I am not talking about reflexively opposing reasonable measures that serve our security, our privacy or other values in a changing world. I am talking about making sure such measures take proper account of the values that it is our special responsibility to protect and defend.
The government is pushing hard for secrecy. We must push back equally hard for openness. I think it’s time to consider establishment of a focused lobbying effort in Washington.
An advocacy center for open government would identify and oppose legislation that puts unreasonable restrictions on public information. It would also propose and seek legislative support for measures that would strengthen First Amendment values.
For example, with courts in some circuits showing signs of withdrawing their recognition of the reporter’s privilege and threats of newsroom subpoenas and searches increasing since enactment of the Patriot Act, it may be time to consider a push for a federal shield law.
Within the next few months, AP will invite representatives of the organizations I’ve mentioned and some others experienced in this kind of work to help us develop a plan for a Washington office that would seek better statutory guarantees for more accessible government information.
If we’re successful, we would convene a broader group to help flesh out an agenda for this effort.
The Reporters Committee, SPJ, ASNE and others do some lobbying already. But by their own accounts their legislative activities are sporadic and uncoordinated, and the scope is limited by their tax-exempt status.
Their candid assessment of their own efforts is that only a full-time dedicated presence will be as effective as it should be.
I know that some in the journalism community would strongly disapprove of a project of this kind. They believe the role of journalists is to remain strictly impartial, and that express backing for even the best intended legislation would compromise that role. I respectfully disagree.
The objection reminds me a little bit of the saying about the man who was “so broad minded that he wouldn’t take his own side in a fight.” A fight is what this is. A fight is what our system of government intends and expects it to be.
We do not sit in some impartial referee’s box where open government is concerned. Like it or not, we’re in the game for keeps, and we can either play badly or play well. I believe we have a duty to play well, and that it’s time to learn whether some new moves will help.
And in the meantime we intend to do more of what we’re already doing.
* State FOI audits, for example, have been very effective tools for testing official compliance with state FOI laws and raising public awareness of their rights. Usually these audits are conducted as a collaboration among all state media including AP.
Starting now, AP bureaus in any state where such audits have not been conducted will be instructed to make some phone calls and start a project immediately. And AP will press in every state for regular audits at least once every five years.
* Bureau chiefs will also be directed to provide a status report on access for still and video cameras to state and federal courtrooms in their territories. Where there is no active effort under way to expand access, or the effort has faltered, chiefs will be asked to develop a plan to move things forward.
* AP bureau chiefs will be directed to review their procedures for responding when access to information or proceedings is blocked. We will help them speed the process of deciding when to hire counsel, seek allies among other media, and fight back.
* We will issue fresh instructions to AP editors at every level to be sure that any news story that benefits from an FOI request or suffers from lack of public information that was refused by a government source says so clearly.
There is a lot more we can do, especially if we work together.
Our industry can be proud of the principled stand it has always taken for freedom of information. Every one of us has used the FOI laws for the public good, fought to get into public meetings, sued to overturn gag orders or unseal documents.
The advocacy of ASNE, SPJ, the Reporters Committee, and the scores of FOI and Open Government councils all over the country have helped keep the First Amendment vibrant. Yet today, the forces of secrecy have drawn fresh strength from the war on terror and the heightened privacy concerns that new technologies have spawned.
We, the forces of open government, must find fresh strength of our own, and I am confident we will.
Thank you for inviting me to join you.
