Archive for September, 2006

OPEN Government’s got a chance

Occasionally, members of Congress realize just how ridiculously secretive government is and actually do something to promote the free flow of public information.

Wonder of wonders, the House Government Reform Subcommittee on Government Management, Finance and Accountability (now there’s a mouthful) today approved the OPEN Government Act (H.R. 867. OPEN, by the way stands “Openness Promotes Effectiveness in our National Government”).

This, ladies and gentlemen, could be the most comprehensive legislative reform of the Freedom of Information Act we’ve seen in a decade.

Today’s vote is hot on the heels of the Senate Judiciary Committee’s approval of the Senate’s version of the act (S. 394), a bill that also has bipartisan support.

If approved, the act would provide an array of sensible reforms, including:

  • The restoration of meaningful deadlines that help FOIA requesters get the information they want in a timely fashion.
  • The creation of hotlines and other tracking measures by government agencies to help the public follow up on requests.
  • The creation of independent mediators to help resolve disputes and recommend alternatives to litigation.
  • Greater ease for the recovery of attorney fees incurred by requesters when litigation is unavoidable.
  • Penalties for agencies that blow deadlines and delay responses.SPJ is incredibly proud to be a participant in the Sunshine in Government Initiative, a coalition of media groups that promotes government accessibility, accountability and openness. The coaltion generated a press release today rightfully praising today’s vote. I must admit one passage in the release caught my eye:

    “On December 14, 2005, President Bush signed an executive order improving implementation of FOIA. Today’s action recognizes that even the best executive order is no substitute for action by Congress.”

    Translation: President Bush made a nice overture, but he didn’t go far enough. Thank goodness Congress is wising up and on track to do something really worth cheering about.

    In December, President Bush issued an executive order requiring agencies to take several steps aimed at streamlining the handling of FOIA requests and generally making the process smoother for everyone. He even called for the appointment of senior-level officers to ensure FOIA compliance.

    But here’s where the president fell short: His directive didn’t change former U.S. Attorney General John Ashcroft’s 2001 edict that federal officials look for legal grounds on which to deny FOI requests rather than to presume the public has a right to the information it seeks. How convenient.

    I also found the timing of the president’s order interesting given that bipartisan support was building for the more stringent OPEN Government Act proposed last spring by Sen. John Cornyn (R-Texas) and Sen. Patrick Leahy (D-Vt.). The bill we’re looking at now would indeed disallow governments from using some FOIA exemptions to explain away their failure to respond to requests within periods mandated by statute.

    “The Bush-Cheney administration sent a powerful message governmentwide with the Ashcroft policy in 2001,” Leahy said after the president’s December order. “That shifted the upper hand in FOIA requests from the public to federal agencies. The new policy (foisted on us by Ashcroft) says, in effect, ‘When in doubt, don’t disclose, and the Justice Department will support your denials in court.’ It undermines FOIA’s purpose, which is to facilitate the public’s right to know the facts, not the government’s ability to hide them.”

    When reacting to Bush’s order, Cornyn, a GOPer from the president’s home state, chose his words more carefully. “…More remains to be done to ensure that Americans citizens have access to the information they need and deserve.”

    Good thing these two didn’t give up the good fight. They have my sincere thanks for this one.

    While it’s highly unlikely lawmakers will vote on this bill before the end of the current term, the recent shows of support for the OPEN Government Act bode well for broad approval from the new Congress.

  • Shield Law hearing summary

    SPJ’s legal team at Baker Hostetler in Washington, D.C., followed this morning’s Senate Judiciary meeting regarding a proposed federal shield law for journalists. These notes recap the discussion and were compiled by Malena Barzilai.

    Senate Judiciary Committee

    Hearing on Free Flow of Information Act 2006

    September 20, 2006


    Committee members

    Sen. Arlen Specter (R-Pa)

    Sen. Jon Kyl (R-Ariz)

    Sen. Chuck Schumer (D-NY)

    Sen. Sam Brownback (R-Kan)


    Paul J. McNulty, Deputy Attorney General, U.S. Dept. of Justice

    Steven F. Clymer, Professor, Cornell Law School

    Theodore B. Olson, Partner, Gibson, Dunn & Crutcher LLP

    Victor E. Schwartz, Partner, Shook, Hardy & Bacon LLP

    Bruce A. Baird, Partner, Covington & Burling LLP

    On behalf of SPJ

    Malena Barzilai

    Laurie Babinski

    Baker & Hostetler LLP

    Summary of Witness’ Testimony (with Senators’ comments throughout)

    Paul J. McNulty

    • McNulty’s main point was that the Bill shifts the power unnecessarily from the executive branch (DOJ) to the judiciary to decide whether a journalist should be required to disclose a confidential source.
      • He argued that courts lack the resources, knowledge and ability to effectively use the balancing test in determining the confidentiality of a source.
        • Specter disagreed in questioning, noting that courts are able to weigh national security interests appropriately, as they do in habeas and electronic surveillance cases.
        • McNulty countered, noting that a judge will not be able to adequately judge the consequences of the harm, and that each judge would consider such consequences differently.
      • In defense of the executive branch’s power, he noted the DOJ’s record of restraint in issuing subpoenas to journalists – according to McNulty, there have been less than 20 cases in 15 years.
      • Finally, he asserted that the Bill is a “solution in search of a problem,” because even with the aforementioned cases, “the media has not missed a beat.”
        • Specter disagreed, asking for a case where the standard in the legislation differs from the DOJ guidelines. McNulty will answer in follow-up with the Committee.
    • McNulty’s other concerns with the Bill included sending the wrong message to leakers and encouraging their behavior, tipping the balance in the separation of powers against the executive branch, and a Sixth Amendment limitation on criminals calling witnesses.
    • Schumer brought up the government’s double standard and “selective outrage” regarding leakers – sometimes the government wants the information out and looks the other way when a leak occurs, while other times it pursues the leaker from its “high horse.”

    Theodore B. Olson

    • Olson’s principle argument, noting a circuit split regarding privilege law, was that  “lack of uniformity [in the courts] creates intolerable uncertainty” among journalists, sources and their lawyers.
      • Uniformity will regularize the rules in cases that, in opposition to McNulty’s reliance on the DOJ, Olson says will end up in court anyway if a journalist decides not to abide by a subpoena.
      • The real question, Olson addressed in questioning, is whether the judges should carve out the privilege on their own as they’re doing now, or whether they should have Congress’ guidance as this Bill provides.
    • In opposition to McNulty’s argument that the DOJ, not the courts, should be applying the balancing test, Olson countered that it’s exactly the courts that should be applying this balancing test as the courts do in many other instances, including when they determine probable cause for issuing warrants and apply the attorney-client privilege.
    • Olson noted that 39 states’ attorneys general supported a shield law in an amicus brief in the Plame case because one law and various interpretations from the courts is still better than the many interpretations based on no solid law that currently creates the variation among circuits.
    • Specter, in questioning Olson, asked if this Bill would have produced a different result in the Miller case. Olson responded: “It may have.”

    Steven F. Clymer

    • Clymer’s main point was the concern that the Bill will not actually contribute to the free flow of information. He noted that while the Judith Miller case was progressing, stories still came out using confidential sources, most notably the stories on secret prisons and wiretapping.
      • Even with the Bill, there will be no additional assurance of confidentiality that a reporter can give a source. There are too many exceptions and there will be too many interpretations for such assurances.
      • Clymer said that the lack of such additional assurance for journalists and sources creates a Bill where “what we get is all the costs … without the benefits.”
    • Echoing McNulty, Clymer countered Olson, saying that the Bill will not accomplish uniformity with such an unstructured balancing test because federal judges are not competent to make the appropriate determinations.

    Victor E. Schwartz

    • Schwarz focused primarily on private litigation, noting that when Congress left privileges out of the Federal Rules of Evidence, “its judgment was correct.”
    • All this Bill will do, he says, is contribute to the “free flow of information that shouldn’t really flow” because it treats all leaks, illegal or legitimate, the same.

    Bruce A. Baird

    Baird largely echoed Olson, noting that since confidential source cases will end up in court regardless of the Bill, at least the proposed law gives judges some guidance via the balancing test as to how to determine whether a reporter should be required to testify.

    The IRS goes to church?!

    So many interesting e-mails cross the transom in a day. Many bring compelling First Amendment issues to the attention of SPJ’s national leaders.

    I truly wish the Society had the bandwidth to address every single one of those issues with a flurry of press releases, indignant op-ed pieces and legal support, but it doesn’t. SPJ has to draw the line somewhere, and it typically does by tackling those matters with a direct impact on the practice of journalism.

    But there are controversies — and a story published Sept. 16 in the Los Angeles Times outlines one of them — that deserve some sort of reaction from one the nation’s largest and oldest journalism advocacy organizations. SPJ does, after all, champion free speech. And despite what we’ve all heard about “the liberal media,” journalists are some of the staunchest believers I know in the establishment of religion and the free exercise thereof.

    So, let’s just say I’m not the only working stiff in a newsroom who has spotted parallels between the legal fights the federal government has picked with journalists — and the mess now raining down on an Episcopal church in Pasadena, Calif. Wonder of wonders! The liberal media might have something in common with the religously devout after all. (OK, OK. So in this case, the parish is well known for its liberal stance on various biblical issues.)

    Some quick background: All Saints Episcopal Church has until Sept. 29 to submit to the IRS all documents and e-mails it produced during the 2004 election year with references to political candidates.

    What triggered the investigation now threatening the church’s tax-exempt status? A minister who had the gall to say during a 2004 sermon — delivered only a couple of days before the presidential election — that Jesus would have had serious problems with the Bush administration’s preemptive war strategy in Iraq and its efforts to address poverty around the world and right here at home.

    The church’s 3,500 members are debating whether to comply with the IRS summons, which, the church states in a press release, probes “deeply into its core religious practices.” Hmmm. Sounds a whole lot like those overzealous federal probes that have increasingly struck at the heart of journalistic practices.

    The government has thumbed its nose at us all in recent months: “Information you hold sacred, believing it is protected from public scrutiny because of your First Amendment rights? Get outta here! We’re the only ones entitled to keep secrets!”

    I’m praying the feds have finally picked on the wrong crowd — a crowd that will do an even better job than news organizations (and, yes, even SPJ) have done of making the public aware of how the First Amendment is going to hell in a handbasket.

    I’m also watching with great curiosity as a church gets a crash course in what it’s like to be a journalist these days.

    God does indeed move in mysterious ways.

    If you must be in the Congressional Record …

    For some odd reason, it never occurred to me that serving as SPJ’s president would land my name in the Congressional Record. But that’s indeed what happened today.

    To be honest, I cringed at first. After all, respectable journalists diligently monitor the activities, debates and proceedings of Congress. They don’t become a part of them. Here I was breaking a sacred rule drummed into my head since journalism school: “Cover the news. Never make the news.”

    I dispensed with the handwringing in short order. I will not apologize for defending the improvement and protection of journalism and the free flow of information to the public. If that means I must share my thoughts and opinions on those matters with our nation’s leaders — and even ask those leaders to support laws that champion a free press (“Oh, the horror!” some of you purists — or are you the pious? — are thinking …), so be it. Somebody’s gotta do it.

    Don’t get me wrong. I understand why many journalists grumble from the shadows. I know why they’d rather endure working on a quintuple-bylined story due to the desk in just under 10 minutes than to ask a politician for anything. Such conversations feel too much like icky requests for personal favors. I get it. Trust me.

    At the same time, I also believe firmly that journalists must do more for journalism and the First Amendment than what it takes for them to collect their paychecks. Those who assume their news organization’s lawyers (or the lawyers at larger news organizations) will handle all the “advocacy work” on their behalf are fooling themselves. Those who think they’re stalwart defenders of a free press just because they show up for work every day, break a few big stories and file an occasional Freedom of Information Act request are downright delusional.

    This, of course, is where SPJ comes in. The Society is one of very few journalism organizations in the country that can lobby to support First Amendment interests. It offers an effective way for journalists to make their voices heard loudly and clearly. They need never step from the shadows — or add their name to the Congressional Record. They need only to become a member.

    Sooooo, why’d I wind up in the Congressional Record? SPJ is one of 28 organizations that signed on to a letter sent today to members of a conference committee for budget approprations to the Department of Homeland Security.

    We urged those committee members to adopt section 525 of the U.S. House’s version of H.R. 5441. What the heck would that do? It would help correct the misuse of the “Sensitive Security Information” (SSI) designation that a whole lot of government officials like to slap on information that has no business being kept secret. The SSI marking has been abused to cover up embarrassing government activities.

    Here’s an interesting example of SSI abuse: The Transportation Security Administration uses the SSI marking to block public access to information that’s even widely known! (Don’t take it from me. Take it from Judge Charles R. Breyer of the United States District Court for the Northern District of California. In 2004, he faulted the the TSA and FBI for making numerous “frivolous claims of exemption” for “innocuous” information that even boils down to common sense.)

    As the letter, spearheaded by and co-signed by SPJ, states:

    “An example of widely-known information to which the TSA has applied SSI, apparently in an effort to block public access, includes ‘the texts or even the titles of five aviation warnings given to airlines just before the 9/11 terrorist attacks, even though the titles and the substance of the warnings have been published in the best-selling 9/11 Commission report,’ as reported by the National Security Archive in 2004. The warnings, distributed to each of the airlines before 9/11, and publicly available on the Internet and in the FAA reading library before 9/11, described the threats to civil aviation presented by Islamist extremists and specifically named Usama bin Laden and his al-Qaeda network. Now, more than five years later after those same terrorists attacked on 9/11, the release of those warnings given to the aviation industry before 9/11 cannot possibly present a risk to the nation’s transportation system. Yet they remain designated SSI by the TSA, thwarting efforts at accountability related to 9/11 and to ensure improved security.”

    How to fight for the shield

    After you get the background information about the Senate Judiciary Committee’s upcoming Sept. 20 hearing on the proposed federal shield law for journalists, do something, darn it!

    It’ll take only a few minutes to write or call your senators. It is especially important for key senators on the Judiciary Committee to hear from their constituents. Those key players are: Orrin Hatch (R-UT), John Cornyn (R-TX), Sam Brownback (R-KS), Tom Coburn (R-OK), Mike Dewine (R-OH), John Kyl (R-AZ), Joseph Biden (D-DE), Herb Kohl (D-WI), Dianne Feinstein (D-CA) and Richard Durbin (D-IL).

    Not sure what to write or say? Then review this sample letter, crafted by SPJ attorney Malena Barzilai of Baker Hostetler:

    Dear [senator]:

    The Senate Judiciary Committee may soon be marking up S. 2831, the Free Flow of Information Act of 2006, which would create a qualified federal shield law for journalists. As a working journalist, I write to express my support for this bill, which strikes an appropriate balance between the need to protect the free flow of information to the public through a free press and the need to ensure the fair administration of justice and effective law enforcement.

    Confidential sources and information have played a essential role in enabling me and my fellow journalists to inform the public about important issues. However, this function is threatened because reporters are with increasing frequency finding themselves involved in contentious federal lawsuits in which the government or other litigants are demanding information about these confidential sources and materials.

    The District of Columbia and 49 states already recognize an absolute or qualified privilege for journalists, but the absence of uniform protections at the federal level has created unpredictability that makes it difficult for the press to do its job. There is an urgent need for Congress to enact a federal shield statute that will provide a clear federal standard. We hope you will support S. 2831 and work for its enactment this Congress.


    [name here]

    Not sure you should say anything at all? Granted, journalists with an ounce of good sense don’t make a habit of lobbying Congress. But c’mon. There are times — and this is one of them — when we need to use all the power we can muster to protect a free press and the free flow of information to the public. As Jonathan Alter, a senior editor of Newsweek writes:

    “Somebody had better come up with something soon or the basic arrangements by which (the public) learns hard-to-find truths about (the) world will collapse faster than a Hollywood marriage. Interested in Enron and other business rip-offs? How about the war on terrorism or the spread of nuclear weapons or some local scandal or half the other important stories you see on the front page? Once federal prosecutors and even civil claimants (like Wen Ho Lee) get in the habit of forcing reporters to cough up their sources, you’ll be dining on handouts and hokum.”

    We must actively work to change the law — and we have our chance. SPJ is among more than 15 other journalism organizations supporting the proposed federal shield. Surely, we’re not all crazy and/or straying from our strong commitment to professional ethics.

    Showdown for federal shield looms

    This just in from Malena Barzilai, one of SPJ’s attorneys at Baker Hostetler in Washington, D.C.:

    The Senate Judiciary Committee’s hearing on the proposed federal shield law for journalists (Search for the full text of Senate Bill 2831, also known as the Free Flow of Information Act of 2006) will be held at 9:30 a.m., Sept. 20.

    The hearing will focus on aspects of law enforcement and national security. There are no media representatives among those tapped to testify. The witnesses are Paul McNulty, deputy attorney general of the U.S. Justice Department; Victor Schwartz, who represents the U.S. Chamber of Commerce; Ted Olson, the former solicitor general and former assistant attorney general at the Justice Department; and Bruce Baird, a former assistant U.S. attorney.

    McNulty and Schwartz will oppose the bill, and Olson and Baird will support it.

    What should you do?

    • Call your senator Look online to find your senator’s contact information. Please aim to call his or her office before Sept. 20. Encourage everyone you know to do the same.
    • Don’t forget. Pay careful attention to who is supporting this measure and who is fighting it — and then vote accordingly. Special note: A representative of the U.S. Chamber of Commerce is fighting this proposed shield. Hardly a surprise, eh?
    • Do some homework. SPJ has produced an excellent primer about the need for this legislation. Jonathan Alter, a senior editor of Newsweek provides another insightful explanation in a July 2006 column. If journalists are forced to cough up their sources, Alter writes, the general public soon will be “dining on handouts and hokum.”

    Dunn done at HP

    And you sure aren’t going to see me complain about it.

    HP (That arguably stands for “Hackers of Privacy,” not “Hewlett-Packard”) Chairwoman Patricia Dunn is “stepping down from” (perhaps that’s better phrased “was kicked from”) the helm of the technology giant’s board of directors. Her departure from the top job is to take effect Jan. 18 — although she is expected to continue serving as a director.

    As many now know, Dunn and other HP execs tried to clamp down on boardroom leaks to the media by hiring private investigators who now are accused of identity theft. Turns out the gumshoes didn’t see much wrong with using shady — if not illegal — tactics to gain the professional and private phone records of at least nine journalists and members of HP’s board.

    Dunn has defended her role in the probe, insisting she didn’t know the investigators were using such “inappropriate techniques.” While that may be true, it’s a lame excuse. The old buck, as they say, stopped with her.

    The lesson in all of this for journalists? Never let down your guard. Not for a second. Ever. The truth is always — and without question — more important than the image any company hopes to project to protect its bottom line.

    Impact 9/11 has had on American journalism

    OK, so reporters have a tendency to ask big questions and demand relatively snappy answers in only minutes flat. As SPJ’s new president, I’m learning in a hurry how difficult it is to sound smart on incredibly short notice while also choosing my words very, um, “carefully.”

    In the last couple of days, I have received calls from three journalists, including one in Africa, wanting to know how 9/11 has affected American journalism. My top answers, devoid of much elaboration, are posted below in no particular order.

    What would you add to this list?

    1. Many journalists all of a sudden woke up and discovered religion (particularly Islam). Belief in a higher power — and the lack thereof — figures into everything, including business decisions, politics and a person’s stance on various social issues. Yet, far too many journalists failed to understand, much less explain, how faith figured into the subjects they tackled. Since 9/11, I have seen much more careful exploration and explanation of the role religion plays in various world affairs. Still, the American press has a long way to go on this count … Journalists wanting greater insight into the role religion plays on every beat would be smart to consult the Religion Newswriters Association.

    2. The lack of Arab and Muslim voices in American media has become more apparent to me since 9/11. Can you name one prominent Arab newspaper columnist or TV broadcaster? What about ANY Arab newspaper columnist or TV broadcaster? To American newsrooms, I say, “Let’s make more of a conscious effort to hire these people, please. Every newsroom should reflect the community it serves.” The National Arab American Journalists Association is happy to discuss these issues — and provide the names of worthy job candidates.

    3. In the last five years, more journalists have begun to focus on the daisy chain that includes U.S. policies on the Middle East, the world’s oil and energy markets, the relationship between Israel and its neighbors and the tension often arising between Islamic and Judeo-Christian cultures. Before 9/11, these seemingly complex analyses often were delegated to a news organization’s foreign correspondents. Hands off — or of no concern — for the men and women slogging through city meetings and pounding the streets back in the States. Not anymore.

    4. 9/11 should have taught everyone in journalism a big lesson about the unflinching and unapologetic skepticism journalists should have of their government leaders. Enough said.

    5. 9/11 unfortunately has ushered in some of the most serious breaches of press freedom Americans ever have seen. The number of classified documents is on the rise. The Freedom of Information Act is under attack. Overzealous federal prosecutors have been empowered to haul journalists into court, demanding that reporters and editors hand over notes and the names of confidential sources. Some lawmakers are pushing for the “Official Secrets Act” bill to clamp down on whistle-blowers. And all of this plays well with an increasingly nervous America, which appears all too willing to trade personal freedom for personal security. I can’t shake this famous quote from An Historical Review of the Constitution and Government of Pennsylvania: “Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety.”


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