Editors suggest how to pierce government secrecy

Thursday, September 20, 2012

NASHVILLE, Tenn. — More public records exist today than ever before, but getting access to them is another matter, open-records advocates told editors, educators and students this morning.

The fight over access to public records has shifted, a First Amendment expert said during a panel discussion on “Government Secrecy and the Fight for Public Information.” The session, moderated by National Press Foundation President Bob Meyers, was held during the Associated Press Media Editors national conference at the John Seigenthaler Center, home of the First Amendment Center.

Government officials now acknowledge that the public has a right to information, said Gene Policinski, executive director of the First Amendment Center, but they have also figured out how to obscure the data by restricting access and creating exemptions to freedom of information laws.

There’s lots of data, but it’s effectively off limits because government officials often play a game of “hide the experts,” Policinski said, barring employees who can interpret the information from speaking to reporters. Instead, agencies’ public relations officers manage the release so that they can put the “spin on the data” the government wants, he said.

Asked about the current state of access to information, Jack Gillum, an investigative reporter with the Associated Press, said: “It’s a fight, but it’s more than that; reporters are under siege.” And the fight has gotten worse, he said.

The Obama administration and FOI officers say “we have the most transparent government in history,” but the data that is released is “opaque at best” and “goes against the whole idea of openness,” Gillum said.

We should have a more transparent government than ever, but many government officials attack transparency with the “weapon” of privacy, Policinski said. Before electronic records, information about home sales and building permits were public, but not very accessible. It was “practical obscurity” — people would have to take the trouble to go to a dusty corner of the courthouse to look at a record, he said. Now many of those records can be obtained electronically, but some people are scared that details such as birthdates or addresses might be used by criminals and others to violate their privacy or even target them, Policinski said. Government officials are saying that they’re keeping the public’s information safe by blocking release of records and “protecting you from intrusive requests.”

News organizations can use database projects to demonstrate the value of open records, Policinski said. Stories about public health and safety that come out of analyzing public-records databases may be the best way to defend FOI, he said.

Gillum said that when a public relations official asks “‘why do you want the records?’ I like to answer like your mother, ‘Because I want them.’” Because as taxpayers, we are entitled to that information and don’t have to give a reason, he said.

Asked how to get more information from public officials, Gillum urged persistence: “FOIA the hell out of these people.” The reporter said he had assigned himself “FOIA Fridays” to remind him to send requests. Pretty soon, he said, officials will say, “Oh, here he comes again.”

He later added that journalists should write more stories about being denied access to public records. He noted that while working on a story in Arizona, one school district official accused him of trying to shame her into releasing records. The official said she gave him the records because she was “tired of people thinking we have something to hide.”

Policinski agreed, saying, “We need to tell the public why we need the information” and then “name names of officials who won’t comply” in order to hold them publicly accountable.

Gillum said the biggest challenge to getting access to data can be “asking the right way.”

The panelists and audience members noted that even as more information seems to be available, government officials have gotten more skilled at hiding or obscuring it. One audience member said that in Georgia, the Legislature is posting information about bills, but in a way that the public can no longer search to see who sponsored bills and whether they might have a conflict of interest.

Attorney Christine Walz said she was leery of “glossy government Web sites where it looks like you’re getting all the information, but you don’t know what you don’t have access to.”

When a records request is denied and ends up in court, Walz advises journalists to “be very clear in your request” and to remind the judge “what your story is … and what the public’s interest is in it.”

Asked whether there were any bright spots in the FOI picture, Policinski drew a laugh when he answered “No.” He quickly followed up, saying increased training of journalists and more use of records databases were positive developments.

FOI requests aren’t the only way to get information, Gillum said, reminding editors of the value of human sources. He urged editors to let reporters spend money building relationships with sources, even if it’s just for coffee. “Sources hate being just called on deadline” if there’s no relationship there, he said.

Walz spoke about her work on behalf of The Commercial Appeal in Memphis and reporter Marc Perrusquia in their legal efforts to get the FBI to release its records on Ernest Withers, a noted photographer of the civil rights movement who also was a secret FBI informant. Walz said the FBI delayed responding to FOI requests and maintained that Withers wasn’t a confidential informant even after the newspaper published a story about it in 2010 based on heavily redacted files. She said the FBI expressed concern that release of Withers’ records would keep the agency from recruiting other confidential informants.

Walz said the federal judge in the case even asked at one point, “Are we really litigating this issue?” before sending the parties to mediation to settle the case.

Such legal battles over records are frustrating because they can take years and are costly, Walz said, adding that “it’s a waiting game” and the government can afford to wait it out.

As for the Withers case, Walz said it could set a good precedent for access to other historical records.

APME, formerly the Associated Press Managing Editors, is a national association of news editors from print, online and broadcast media, as well as journalism educators and students.

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