FOIA at 40: Can it still help the public examine its government?

The Freedom of Information Act turned 40 on July 4 of this year, a moment for both celebration and reflection among advocates for open government and press freedom. Lucy Dalglish, executive director of The Reporters Committee for Freedom of the Press sees plenty of cause for both reflection and redoubled effort to preserve the public’s right to know in our current political climate, nearly six years after the terrorist attacks of September 11, 2001.

OJR spoke with Dalglish about the heightened concern she sees from both journalists and the public about the culture of secrecy that has pervaded many parts of our government, as well as the status of a proposed federal shield law for journalists and some bloggers and a bill that its advocates say would improve administration of freedom of information regulations.

The beginnings of RCFP’s “secrecy beat”

OJR: Even before attacks of September 11, the Bush administration displayed a rare penchant for secrecy.

Dalglish: Right. [Attorney General Alberto] Gonzales, when he was the White House Counsel, tried to gut the Presidential Records Act [PRA], to essentially make it meaningless. There was the [former Attorney General John] Ashcroft memorandum interpreting the Freedom of Information Act. They were working on that well before 9/11. There was the Cheney energy task force meetings that they tried to put off-limits. They were pre-disposed to secrecy even before 9/11.

[Note: In June, 2007, the House Committee on Government Oversight and Reform issued a report alleging that senior Administration officials might have violated the PRA by using e-mail addresses assigned by the Republican National Committee to conduct official government business.]

OJR: How did journalists react to that predisposition toward secrecy in the very beginning?

Dalglish: Indifferently.

OJR: Indifferently? They didn’t see it as a real problem?

Dalglish: No, they didn’t see it as a real problem. They were caught unawares and they always thought, “Oh, we’re the only ones who care about that. Journalists are the only ones who care about that, so why even bother to report it?”

OJR: After 9/11, at what point did journalists get concerned. Was it the passage of the PATRIOT ACT?

Dalglish: Well the PATRIOT ACT doesn’t have much to do with information policy. And quite honestly, from my perspective, many of the things in the PATRIOT ACT are absolutely fine and absolutely necessary.

There were a number of things that happened after 9/11 that did impact the right of the public to know what was going on, but it wasn’t necessarily the PATRIOT ACT. I can really only think of one major area of concern in the PATRIOT ACT, and that’s section 215, which said that you could try to get tangible business information from any entity, and then, the librarians and the bookstore owners went nuts.

And we found out from the Attorney General that they were convinced that despite the Privacy Protection Act of 1980 that said you could not execute a search warrant on a newsroom, that because 9/11 was so special that the PATRIOT ACT would allow those search warrants to be executed on newsrooms.

OJR: Has anybody tried to do that?

Dalglish: No, not that I’m aware of.

OJR: There was information that had previously been public that suddenly got taken off-line after 9/11.

Dalglish: Yes. And there were rules that were implemented, executive orders that were written, there was laws that Congress did pass. For example, the law that creates the Department of Homeland Security exempted DHS from portions of the Freedom of Information Act. [RCFP has a detailed chronology of US government secrecy measures between 9/11 and 2005.

OJR: What motivated the Reporter’s Committee for Freedom of the Press to start covering these attempts at secrecy as a distinct beat, with reports such as Homefront Confidential and your blog, Behind the Homefront?

Dalglish: The absolute certainty that the public wasn’t going to learn nearly as much information as they used to, and that this administration was intent on placing valuable information off-limits.

Growing public support for open government

OJR: Where are we now in the effort to balance the legitimate need for secrecy with the public’s right to know?

Dalglish: I think we’re starting to bounce back a little bit. I think Congress has finally woken up. I think the media have finally woken up. I think the public is kind of waking up. They’re asking very serious questions. I think the [Congressional mid-term] election in November [2006] was partly due to all of this stuff. People are going, “Okay, we gave you enough rope, and you hung yourselves. So know we’re gonna go in another direction.”

And I think the [June, 2007] Washington Post stories about Vice-President Cheney explain the passion for secrecy better than just about anything I’ve seen.

OJR: When you cite the Washington Post stories as a sign that the news media has awakened, are you saying that they haven’t been aggressive enough on these issues in the past?

Dalglish: No, there’s no question the press has not been aggressive enough on these issues. Many reporters have made the mistake of concluding the public doesn’t care about this stuff, and that it was quote-unquote inside baseball. But the public does care about this stuff.

And we’re starting to find out that yes, there is a need to keep some things secret. But when you keep some things secret with impunity, abuses of power occur.

OJR: What evidence do you have that there is widespread concern about this among the public?

Dalglish: I get letters; I get e-mails. Mostly, it’s what doesn’t happen. It used to be when I would go on television or on radio and whine about this, people would call in and say I was an unpatriotic jerk. Now, when I go on these TV shows or on these radio talk shows, people call in saying, “Oh thank God there are people like you! Where have you been?” It’s more of an attitude adjustment, rather than any concrete information I’ve been getting.

I’m not getting as many death threats, let me put it that way.

OJR: You were getting death threats before?

Dalglish: Oh, sure!

Current challenges facing journalists

OJR: How do you feel things stand legally in terms of civil liberties protections for reporters?

Dalglish: They’re chipping away in millions of tiny little ways. They’re trying to close down criminal prosecutions. They’re trying to keep us out of proceedings in Guantanamo. They’re trying to close down access to jurors. They’re trying to prevent us from finding out who it is we’ve kicked out of the country. The foreign nationals that we’ve deported because of some weird, wacky matrix system. They don’t want us to know anything about critical infrastructure, even to the point of ridiculous examples. They won’t even let you know — if somebody’s proposed to build a credit-card processing facility in Texas, and the local folks won’t even tell you what intersection it’s going on, because someone has told them that’s sensitive homeland security information. I mean there’s some really ridiculous things that are happening.

And, people are so worked up, and so frightened, that they’ve kind of let common sense fly out the window.

OJR: I recall that a few months after 9/11, I was teaching a computer-assisted reporting class, and we tried to get information on whether ground water had been contaminated around a particular plant. We couldn’t get the information, whereas it had been fairly easy to find that kind of thing out online before.

Dalglish: Yes, they took it down. They took a lot of that kind of information down, because, you know, a terrorist might use that to poison people! Well the same information a terrorist could use to do damage, citizens who live in that area might appreciate knowing so they can tell their children not to drink the ground water. It’s a total double-edged sword, and they’ve got to be so over-protective, that they’re not using common sense. How can you insist that the EPA clean up your ground water if you’re not allowed to know that it’s contaminated? It gets to be infuriating.

Legislative update

OJR: Reporter’s Committee for Freedom of the Press devotes a lot of its resources to keeping track of shield laws, sunshine laws and the like. How do we stand with regard to that?

Dalglish: The [proposed Federal] shield law might move in the House fairly quickly. We’re having problems with some members of Congress who are concerned that journalists are going to protect leaked national security information. So that’s kind of a sticking point.

The Open Government Act, sponsored by [Patrick] Leahy (D-VT) and [John] Cornyn (R-TX) in the Senate, and by [Henry] Waxman (D-CA) and some others in the House, should be a no-brainer, but [Jon] Kyl (R-AZ) has put a hold on that, and he’s single-handedly blocking it.

OJR: The “secrecy Senator.”

Dalglish: Yes, the secrecy Senator.

OJR: Can you talk just a bit about the Open Government Act, which is designed to strengthen the Freedom of Information Act?

Dalglish: It doesn’t do anything, as far I’m concerned, that’s all that controversial or remarkable. It put things back the way they used to be as far as shifting in reimbursing people who have to sue the government. It doesn’t create any new information that’s off-limits. It creates some new tracking procedures, and puts some teeth into the enforcement of the act, and hopefully will make it work better, make it more user-friendly.

I don’t think there’s anything in the world that should hold this thing up. But they are so pre-occupied by immigration right now, that I don’t think anybody’s in the mood to tangle with Kyl right now. [This interview was conducted on June 26, 2007; the controversial immigration reform bill was defeated on June 28.]

What journalists and the public should do to protect the public right to know

OJR: What should journalists be doing right now with regard to Freedom of Information issues?

Dalglish: I think what journalists should be doing, quite frankly, is reading our website every single day. They should be paying attention to the sunshine in government initiative. They should be paying attention to Open the They should be paying attention to the Coalition of Journalists for Open Government. And they should be getting active in these FOI-related journalism groups.

Just stay informed, and I personally don’t think that it is a conflict for journalists to take a political position on something that has to do with the need for government to inform its citizens. Now, if you’re covering a committee in Congress that’s considering amendments to the Freedom of Information Act, should you be up there testifying in favor of the Act? No. But, what you should be doing is supporting the non-profit organizations that are trying to speak up on your behalf, to ensure your ability to do your job.

OJR: Are we doing an adequate job of making the public aware of these issues at this point?

Dalglish: We’re doing better. The American Society of Newspaper Editors has been working very hard the last two or three years on Sunshine Week. It started with newspapers, it spread to online and its spread to broadcasting. In March, right around James Madison’s birthday, we try to convey information to the public about why it’s important to support open government. Why it’s important on both the state and the federal level, and I think that’s been a remarkably successful project.

OJR: You’ve been in your job at RCFP for seven years now. In 2010, when July 4 approaches, what do you hope you will see?

Dalglish: I hope to see that the Freedom of Information Act has been amended; I hope to see that we have a reporters’ privilege – a shield law. And I hope to see that various news organizations and the non-profits are up there pro-actively seeking things from Congress rather than acting defensively.

The 'Libby Effect': Can you still keep your sources secret?

At this writing, the jury has yet to hand down a verdict in the trial of former White House aide Lewis “Scooter” Libby on charges of perjury and obstruction of justice. [Update: Guilty on four of five counts — Ed.] Whatever the verdict, one thing is clear, according Amy Ginensky, a partner at the Philadelphia law firm of Pepper, Hamilton, LLP who has tried many First Amendment cases: the Libby trial is “a subject that all of us who have any thing to do with the media need to do a lot of thinking about.”

Certainly, a lot of people are thinking about it, as evidenced, for example, by the discussion generated by Scooter Libby segment of the PBS Frontline series, News War.

OJR sat down with Ginensky to find out why she says that the Libby trial, “has changed journalism as we know it.”

OJR: You’ve said that “After this trial, even if privilege can be protected in federal and state courts, many may not perceive it.” What did you mean by that?

Ginensky: We all grew up in the “Deep Throat” era and thought that everything is protected and confidential. What we’re going to see, and I’ve already seen it myself, is lawyers – both on the civil and criminal side — thinking, ‘Oh reporters have to testify – that’s what the Libby case is all about. And it’s obvious that while there may be certain instances in certain courts where reporters have to testify, but in many states there are strong protections… shield law or common law protections. In federal courts there are still some protections, and some federal courts have been stronger than the DC court was.

So, I think lawyers’ instincts are going to be to serve a subpoena whenever they think journalists have information about anything – any information, whether or not it’s been published, whether or not it’s confidential, or whatever, they’re going to try to get reporters to testify.

Then I think you’re going to face the fact that sources have seen this group of reporters walk into the Libby trial and testify and be the number one and two and three witnesses against Scooter Libby. That is a position that I think reporters have always tried to avoid, to be a witness against people who are talking to you.

In the Justice Department, I think there has been a great reluctance to serve subpoenas on reporters – I think that’s changing. But… the fact that people think that the protections have been undone [doesn’t mean] that they have been undone.

We need to fight against that to the extent possible.

OJR: One of the extraordinary things about this case is that you have the White House and the prosecutor using the unprecedented tactic of getting sources to sign confidentiality waivers.

Ginensky: It is unprecedented. But what I have argued before is that the privilege is not the source’s; the privilege is the reporter’s. It doesn’t matter if my source is willing to speak, if I’m a reporter. It’s whether or not I will waive the privilege.

And I, as a journalist, have good reasons not to want to waive the privilege in addition to the source’s reasons, because it will chill the next source. I have won on that argument in both Federal and state courts before. Obviously this argument must have been made and did not work in [the Libby] case. If sources believe that their employers can get these waivers out of them, then they’re probably not going to be whistleblowers.

It seems to me that in the face of an attack like this, what we ought to do is to stand up and try to protect [reporters’ privilege] as much as possible, rather than lay down.

OJR: You say that there ought to be a conversation in every newsroom about the rules for granting confidentiality to a source. It’s been suggested that the practice of granting confidentiality has changed over the years from being an incentive that reporters sometimes use to coax reluctant interview subjects to being a privilege that sources expect and use to put out information for their own purposes.

Ginensky: I always understood, both from the dealings with journalists, and also from arguments that I’ve made in court, that it’s…used almost as a matter of last resort. We try to get people on the record, and not just take information off the record, because there are recognized dangers with this type of information.

And then, you may find yourself in a situation like Judith Miller, where you haven’t even published [your information] and you’re faced with having to try to protect somebody who you’ve really never tried to get on the record, and you put yourself, I think, in a bad situation.

OJR: This all comes about when the traditional interpretation of the Branzburg case is being challenged.

Ginensky: We’ve argued for years that the Branzburg case does not mean that there is no protection. But more and more courts – federal courts have found to the contrary. All the efforts to get federal shield laws are really important.

OJR: You’ve also suggested that reporters need to think about their methods and frequency of note-taking.

Ginensky: I think that each journalist needs to think about when they’re taking notes. There are journalists who always take notes – whether it’s on the record or off the record, and then they make a note afterward whether the conversation is on the record. And then they keep the notes, pretty much forever, and then they’ll be like Judy Miller – they’ll find them under desks, in shopping bags.

And that’s not a place you really want to be, because then you’ll have those notes being used to go against the memory of your source… Most sources are not likely to have that accurate a recollection, not because of anything nefarious, but because people just don’t recall the details of conversations. And given any time passage, most of us can’t recall. And so we have the journalists’ notes being used to impeach our source, and that’s a really terrible picture to put out there, and a really terrible position to put your source in.

So I think that people need to think initially, “Am I going to make notes for this conversation with this confidential source where there’s a likelihood I might end up in a battle about my notes?” Maybe you don’t make notes at all. Once you get a subpoena, you can’t get rid of your notes – that’s the destruction of evidence. So you have to think about it, I think, right from the beginning.

OJR: Many journalists hold on to their notes both in case there are questions, and because they might want to re-use the research for another project.

Ginensky: Right. And I’m somebody who defends a lot of libel lawsuits, and sometimes notes can be helpful. Most of the time, they could be helpful, but you’ve got to weigh the possibility of getting a libel lawsuit now against the possibility of a subpoena, and be thinking about these things ahead of time. You can never predict where your libel lawsuit is going to come from, nor predict where every subpoena is going to come from.

But in both instances, you can make some calculated decisions. I mean, I have been more surprised about libel lawsuits, but subpoenas – there are areas where people probably should think about whether they’re likely to get a subpoena. If you’re dealing with a whistleblower in a government agency, think about it ahead of time.

OJR: That gets pretty tricky when it comes to things like e-mail.

Ginensky: Yes, you have to worry about e-mails for your subpoenas; you also have to worry about your phone records, because there have been subpoenas to phone companies where you don’t even have control. Then, the fact that there is this phone record with you and this confidential source could reveal the confidential source. So you might want to think about some way to communicate other than the telephone. Hopefully, it won’t involve getting in the basement or parking garage like Deep Throat!

OJR: You’ve said the credentialing of bloggers to cover this trial is also significant.

Ginensky: The credentialing of bloggers is significant because it places them on a similar level as mainstream journalists. However, this event also raises some questions about the treatment of bloggers. For example, if they are treated as journalists, then will the standard of conduct practices that applies to journalists be applied to them as well in relation to liability issues? If you are considered a journalist, then you’re going to be held to a journalist’s standard of care in a libel lawsuit. I would suspect not all bloggers know much about the standard of care of how other journalists work. On the other hand, if they are considered journalists under shield laws, then, to the extent that they have confidential sources and the statutes that protect them, that’s a good thing.

OJR: Given what you’re saying, anyone who’s going to do journalism really has to have access to quality legal advice. When it comes to solo journalists, bloggers and small publishers, you’re not available.

Ginensky: Right, and I don’t have an answer for that. I would think for a lot of bloggers, it means getting insurance. I worry about risk, and I can’t say I have an answer for that. In terms of how they protect themselves, there should be a lot of reading and discussion. I would think that journalists who are in newsrooms. If they say to somebody, “I’ll protect you and give you confidentiality,” are they really willing to go to jail for that person? That’s a real problem, I would imagine.”

Whatever the verdict, we’ve all been sentenced to deal with a new with a new way of thinking about this, and the recognition that sources are going to think of it differently, and courts of going to think of it differently. In my view, we shouldn’t give up, but we should be proactive in the steps we take.