Media should press candidates on open government

WASHINGTON – At a time of continued government secrecy, the news media should press the presidential candidates on whether their administration would enforce “the spirit as well as the letter of the law” protecting the public’s right to know, says Associated Press President and CEO Tom Curley.

“Secrecy is one of the handiest tools for government that wants to be accountable only to itself regardless of the spirit of any law,” he said March 18 in a national Sunshine Week speech.

Curley praised congressional passage of legislation that toughened the Freedom of Information Act. But he chided Bush administration efforts that he said undercut the measure.

The presidential election provides a good opportunity to press for open-government policies, he said.

“We need to ask the candidates – at every opportunity until we have a clear answer – whether they are willing to appoint an attorney general willing to follow the spirit as well as the letter of the law that protects the people’s right to know what their government is doing,” Curley said in his speech at the National Press Club.

President Bush signed into law last December a toughened version of FOIA, the first such makeover to public-access laws in a decade. It establishes a hotline service for all federal agencies to deal with problems and an ombudsman to provide an alternative to litigation in disclosure disputes.

The legislation came partly in response to an order by former Attorney General John Ashcroft in the wake of the Sept. 11, 2001, attacks, in which he instructed agencies to lean against releasing information when there was uncertainty about how doing so would affect national security. Although the legislation is aimed at reversing Ashcroft’s order, it fails to explicitly do so.

Earlier this year the administration submitted a budget proposal that would move the ombudsman’s office to the Justice Department instead of the National Archives. Open-government advocates including Sen. Patrick Leahy, D-Vt., say that would be a conflict of interest because Justice would be defending federal agencies seeking to keep records secret.

In his speech, Curley criticized the administration move as a “sucker punch” to cripple the new FOIA law. He urged advocates to push back and called for the next attorney general to explicitly reverse the Ashcroft memo.

“We must do more because the entrenched powers have become far more determined to avoid public scrutiny when it matters most,” he said.

Addressing the issue of whether journalists should be open-government advocates, Curley said it would be a disservice to the public to pretend to be “disinterested observers.” He noted that journalists already routinely badgered executive agencies and courts “for information and access we think the Constitution says the public is supposed to have.”

“The brightest rays from Sunshine Weeks have spotlighted countless efforts by citizens to hold their governments accountable,” Curley added. “By reporting on their efforts, we have revealed for millions important lessons in fighting city halls, statehouses and, yes, even Washington.”

In his remarks, Curley:

  • Cited the case of former USA Today reporter Toni Locy as a “dramatic example” of why Congress should pass a federal shield law. Locy recently was fined up to $5,000 a day by a federal judge for refusing to disclose anonymous Justice Department sources to lawyers for a former Army scientist who came under scrutiny in the 2001 anthrax attacks. An appeals court last week stayed the judge’s order pending appeal. Locy also at one time worked for the AP.
  • Urged release of any evidence the U.S. military has to justify its detention of AP photographer Bilal Hussein, who worked in the Iraq war zone. After Hussein spent 19 months in prison, his case was referred to the Iraqi criminal courts last year. Pentagon spokesmen have alleged that Hussein was suspected in a range of terrorist-related activities.Curley said he thought the Locy case had gotten good public attention. On Hussein, he said, “I don’t know how many people are interested in one more Iraqi. I wish there were.” Predicted the media would not shy away from reporting about the human rights abuses or protests in China during the Summer Olympic Games. He noted that one journalist across the world is beaten every two weeks in pursuit of the news.

Q & A on Sunshine Week
Curley is one of the media’s foremost advocates for open government and freedom of information.

Last year he testified before the Senate Judiciary Committee to urge that the Freedom of Information Act be revitalized; an amended act was signed into law late last year.

In question-and-answer form, he discusses this year’s Sunshine Week initiative spearheaded by media organizations.

Question: Sunshine Week 2008 marks the fourth year of the national effort to initiate a public dialogue in the United States about the people’s right to know. What’s different, compared to previous years?

Answer: Important progress was made last year. The Freedom of Information Act got a significant upgrade 40 years after it first was passed. A federal shield bill advanced further in Congress than ever before. The bill would give reporters significant protection from disclosing confidential sources. Unfortunately, we also saw increasing willingness on the part of judges to pressure reporters to give up sources.

Q. On the last day of 2007, President George W. Bush signed into law legislation amending the Freedom of Information Act. How significant are the changes outlined in that law?

A. The new law sets meaningful deadlines for agencies to respond to information requests, provides incentives to meet those deadlines, calls for a tracking system so requesters can check the status of their requests, and creates an ombudsman to help resolve disputes when requests are denied.

Q. Does the public have better tools now to know what the government is doing?

A. Any strengthening of the Freedom of Information Act benefits the public directly. Most FOIA requests are filed by the public about their own records (Social Security or veterans’ benefits). We think these amendments will help everyone, not just the news media.

Q. Does the government have the right to close off electronic communication, such as e-mails, from public view?

A. E-mails or other electronic files can be “records” and subject to disclosure under FOIA. Whether they can be withheld from public view depends on whether any of the exemptions in the Freedom of Information Act or other federal statutes apply to the particular content and purpose of a communication, whether electronic or paper.

Q. Has progress been made on the state level in opening up government records without legal recourse?

A. Two of the absolute worst states in terms of open-government laws – Louisiana and Pennsylvania – made considerable progress. Ultimately, what led to the change was citizen outrage over government of the special interests, for the special interests and by the special interest-elected representatives. Media played an important role covering the citizen unrest and focusing the spotlight on the most offensive officeholders and their ties to lobbyists.

Q. What is the outlook for a federal shield law?

A. The House has passed a bill, and the Senate is considering a similar one. The Senate Judiciary Committee has approved it. If the full Senate approves it, the differences with the House have to be ironed out, and then the president has to sign it. Supporters of the bill are cautiously optimistic about a Senate vote, but the rest of the process is hard to predict.

Q. Will the advent of a new administration help or hinder open-government initiatives?

A. That’s really hard to know. Candidates who get elected tend to want to control the message and the messenger. We have to continue to fight for openness on all fronts. This election year would seem to offer hope in several ways. Public interest by many measures is higher. The campaigns have been exciting, and the likely party nominees have appealed for transparency, healing and dialogue. Judging by the electorate’s repudiation of bare-knuckle partisan politics, the politicians might have gotten a message.

Q. What role should media play in the dialogue about the people’s right to know?

A. Media can help in important ways. We should explain how information can be accessed. We should model good behavior in making critical facts available, especially in crisis situations. We should seek to put as much information on the record from sources or leaders in a position to have reliable facts. We should do our best to explain in understandable terms what’s happening, who benefits and the likely impacts. Finally, we should work harder to hold elected and other officials accountable. One of the best ways to do that is to give voice to citizens and their concerns through fair coverage and letters.

Q. Is there a historical benchmark for an acceptable balance between the good done for security against the harm done to liberty?

A. As a case in point, look at the U.S. military’s detention of AP photographer Bilal Hussein in Iraq – since April 12, 2006. We believe Bilal’s detention was part of a sweep of photographers by the military and was intended to end (or) prevent coverage of a part of the war that was not going well. We know from history – such as from the Vietnam War – that images that inform the public can change the world. In terms of access to information for the media and the public, it appears we are seeing a replay on the part of some of the old Cold War scare tactics. Government exaggerates the threats and implies that it has knowledge we don’t, so only they know best. Really, that attitude is outrageous and shortsighted. Since Bilal was picked up, there also has been an egregious disregard of his due process; we’ve seen meddling in the judicial process at every step. The war on terrorism will likely be more successful if we stand by the rule of law, especially when dealing with due process for suspects or detainees. Procedures already exist to get the job done, even on electronic surveillance. We started on a slippery slope in the aftermath of the Sept. 11 attacks and now have secret prisons abroad and former military prosecutors accusing the government of trying to rig trials at Guantanamo. Excessive secrecy combined with abusive judicial tactics are a danger to democracy.

Q. Has the media’s traditional role as a watchdog of government activity on behalf of the public changed?

A. The role has evolved with the times and technology, and you can see it being played out in the presidential election process this year. The public is getting a much faster vetting of candidate rhetoric and information about partisan tactics or game-playing. New technologies have helped create new media, so there are more voices than ever. Social-networking sites are providing context and information to millions of people, especially a new generation of voters. With all the cameras in all the places, candidates and even media are finding it hard to duck.