01/22/2010

(Read the AP story)


Remarks by Tom Curley
President and CEO/The Associated Press
Kentucky Press Association
Lexington, Ky.
Jan. 22, 2010

Let’s begin with a salute to the Kentucky Press Association leadership. These are the toughest times the industry has ever seen. Impressively, the association devotes a key segment of its meeting to reminding us of our core purpose – the necessity of a free press to serve a free people regardless of the business climate.

In so doing, the Kentucky Press Association makes a very strong statement – to the journalists who support it, to the politicians and PR folks who are watched by the journalists and, above all, to the people of Kentucky who are better served by a vibrant and engaged free press.

Getting access to information that serves the public well-being is not accidental. And, keeping FOIA and other open records laws effective isn’t just one of those “good things to do” that we can dispense with when we lack the spare cash. It’s vital. A strong FOIA in the hands of strong journalists with strong legal support breaks news.

A few months ago AP reported that Treasury Secretary Tim Geithner spent large chunks of time as he planned the bailout with old cronies from his days on Wall Street . . . some of the same guys who later put their hands out for major government help, and got it.

Those stories were based on appointment calendars, phone logs and correspondence of Geithner and other top Treasury Department officials. AP asked for those records in FOIA requests, which Treasury initially stiff-armed.

Instead of relying on a form-letter administrative appeal, we assigned a staff attorney to fully brief the legal and policy arguments supporting our right to get the materials we asked for. It was a lengthy letter. And, in fact, it looked a lot like a lawsuit.

Treasury didn’t want to be sued, especially in light of the new President’s stated commitment to openness . . . and also because it saw it would almost certainly lose. So the government coughed up the goods, and we had an illuminating story that made front pages and home pages everywhere.

It was no accident. We were able to mobilize by using new amendments to the recently bulked-up Freedom of Information Act.

That staff attorney who oversaw this case – her name is Karen Kaiser – wasn’t just taking a little time away from her regular job. Since late 2008, the lion’s share of her full-time assignment is to help AP journalists make government officials obey the law. She’s very good at what she does.

She persuaded the Army it was legally bound to release a report on shoddy electrical contractor work in Iraq and Afghanistan that was causing the fatal electrocutions of U.S. troops.

Her arguments were a major factor in forcing the Federal Aviation Administration to unseal data about aircraft bird strikes and other air safety information.

Other AP FOIA appeals targeted information about corrosion in nuclear reactors, high finance corruption complaints the SEC wanted to keep secret, the ineffectiveness of the Cash for Clunkers program, possible improprieties in Small Business Administration loan programs, and much more.

Altogether Karen has written or negotiated 43 open records appeals in the past year, and in 24 of them the agency in question has reversed its initial denial. Compelling stories swiftly ensued.

Only four agencies persisted in their refusals. We’re still waiting for results on the other 15. That’s a batting average even Barry Bonds would envy . . . and Karen’s not juicing.

But she’s not the only lawyer fighting for access on behalf of AP journalists. AP went to court in nearly 40 cases in the past year, either by itself or in collaboration with other news organizations, to clear the path to information or proceedings the public was entitled to hear about.

These cases were argued in courthouses all over America and in several foreign countries as well, over issues as big as the Constitution itself and as narrow as whether state open records law covers not only electronic documents but also the metadata attached to them.

That seemingly obscure issue cropped up in Arizona, and the media won. Elsewhere on the electronic document front, we won access to emails from the governors of Missouri and North Carolina.

We fought the Montana Department of Corrections for information about sexual misconduct on the job by prison employees.

We unsealed search and arrest warrant affidavits in Las Vegas and Los Angeles that contained details about the investigation into medical treatment of Michael Jackson just before his death.

Here in Kentucky, we teamed up with the Louisville Courier-Journal and the Lexington Herald-Leader in a challenge to the sealing of some evidence in the corruption case against a Kentucky highway contractor and a former state transportation secretary.
AP is also talking to the two major metros and the Kentucky Press Association about joining forces to seek changes in Kentucky’s lethal injection protocols – to try and ensure that the death penalty process remains as transparent as can be.

And, back to Barry Bonds, we helped win public access to juror questionnaires in his perjury trial.

Access to juries and the jury selection process comes up often. We had trouble with the judge in O.J. Simpson’s robbery trial in 2008. Last year we took that judge to the Nevada Supreme Court, and the justices reminded her forcefully that trials are presumptively open and jury selection is part of the trial.

We also had to sue in Baltimore to unseal juror information in the corruption trial of the city’s mayor.

The frustrating truth is that courts and judges, sometimes at the highest level, are often part of the secrecy problem they’re supposed to help us solve. Take the case of a West Virginia Supreme Court chief justice who was electronic pen pals with a powerful state business and political figure who also happened to have a case before the court. The justice refused to disclose the emails when AP asked for them and tried to argue that the state’s open records law doesn’t apply to judicial correspondence.

AP took that argument to the state supreme court last year and won on principle. Unfortunately, we didn’t get the emails because the court said the contents were unrelated to the judge’s duties and therefore exempt.

That’s not really what the law says, and the fight may now go to the Legislature to see if the law can be made clear enough for the court to understand next time a judge plays footsie with a powerful litigant. If it does, AP will not just sit on the sidelines and pretend we don’t care how it comes out.

In these changing times, all the old rules and all the old tools still apply . . . shoe leather, digging, developing sources, skepticism, shrewdness and intuition. And these days we also can make use of new tools . . . databases, statistical analysis, social networking, and all the research skills it takes to extract newsworthy information from them.

There’s one other important item in the journalistic tool kit we usually don’t discuss in settings like these and too often take for granted.

They’re the laws of the land – the First Amendment certainly, but also the many hundreds of statutes and the many thousands of court rulings that give reporters and everybody else the right to find out and talk or write about what our governments and our political leaders are up to.

Using law to obtain access to the news is journalism by other means. Influencing the development of the law so that it favors open government is a crucial part of what keeps a free press functioning.

That includes going to Congress or the state legislature to seek changes that will make government more open, or fight changes that will help government keep secrets.

Some people call that lobbying, and they say it like it’s a bad thing . . . as if a news organization has no business working actively to shape public policy, even if the policy directly concerns the public’s right to know.

News organizations have never hesitated to fight the executive and judicial branches of government for legal interpretations, rule changes, policies and actions that give greater access to the public. So where is it written that the legislative branch is off-limits? And who seriously imagines that the public believes that reporters and editors are neutral and disinterested observers in public policy fights in which the stakes are government openness?

Perhaps the reluctance of journalists to fight openly for laws that better reflect the spirit and intent of the First Amendment was partly responsible in the years following 9-11 for easing the way for new laws that allowed government to put more and more of its activities behind closed doors.

About five years ago, some of us decided enough was enough. We helped underwrite the creation of a coalition in Washington called the Sunshine in Government Initiative. Among its members are NAA, NAB, ASNE, RTNDA, NNA, SPJ and the Reporters Committee for Freedom of the Press. Their mission is to find allies and opportunities in Congress to strengthen the laws that support transparency.

SGI played a little-noted but crucial behind-the-scenes role in amendments to the Freedom of Information Act which President Bush signed into law two years ago, after many of the smartest people in the room had shaken their heads and said it couldn’t be done.

Since then, SGI has been focused on the effective implementation of one of those new amendments – creation of a government ombudsman to help FOIA requesters overcome agency denials even if they can’t afford to file lawsuits.

The previous administration tried to strangle this infant agency in its crib with a crafty parliamentary maneuver that would have placed it within the Justice Department. SGI spotted the move, raised the alarm and worked with legislative allies to overcome it. Today, the Office of Government Information Services is safely established within the National Archives and Records Administration and is preparing to begin operations.

In the year ahead, SGI is turning its full attention to the problem of so-called b(3) provisions. These are lines often buried deep within complex legislation that exempt specified categories of information from disclosure under FOIA.

SGI backed legislation last year that makes these hidden provisions easier to spot. In 2010 SGI will be watching for new ones and working with congressional allies on further changes to the law that will make it harder for government agencies to propose them in the first place.

The First Amendment, as we all know, is a wonderful and powerful thing. But it doesn’t enforce itself.

We should never forget that rights of free speech and free press appear in the constitutions of scores of countries . . . including some of the most cynical and repressive regimes on the planet which openly ignore them.

What makes things different here is a century and a half of accumulated statutory and common law that has defined and given to us the specific rights we enjoy . . . rights to attend meetings, enter courtrooms and obtain documents and other information that helps us understand what our government is doing.

Story by story, case by case, fight by fight, we in this room have helped to build the legal infrastructure that now supports what we do. It is an impressive edifice . . . and it is also terribly vulnerable. It is has been under challenge throughout its existence. It is still under challenge every day. It will either continue growing to meet those challenges, or it will begin getting steadily weaker, maybe too weak one day to do its job.

Up to the present day, the rights to free expression and open access that we enjoy have rested in large part on the commitment and prosperity of large institutions -- news companies, their aggressive newsrooms, their professional and trade associations, and the media lawyers who have been able to make rewarding careers out of defending and advancing the law.

Here are some of their achievements:

- New York Times v. Sullivan

- Press-Enterprise v. Riverside Superior Court

- Nebraska Press Association v. Stuart

- Associated Press v. Department of Defense

- Reporters Committee for Freedom of the Press v. Justice Department

- ABC v. Defense Secretary Powell

- Washington Post and New York Times v. The United States, better known as the Pentagon Papers case.

The law made in cases like these are what make this country different from places where Freedom of the Press is just words on a dead document. These cases and thousands like them -- filed by news organizations including some represented here -- are what get us in the door and let us report what we find there as we see fit.

Determined reporters. Community-spirited editors and publishers. A savvy and committed media bar. You could think of it as an ecosystem that evolved amid favorable conditions as all ecosystems do.

But now, those conditions are changing.

There’s a subtext in all of this that tells of threats that may lie ahead, both to journalism in the still-emerging wired and wi-fi era and to the public’s right to know.

The latest Pew Research study shows that less than 20 percent of everything that presents itself as news these days is based on original reporting. More than 80 percent is pickup or repetitive. Everything we stand for – and the foundation on what our entire economic value proposition rests -- is original reporting, even tenacious reporting.

Yet, large institutions are getting smaller. There are more empty desks in newsrooms. Some even suggest that the newsroom itself is passé in the age of crowd sourcing and cloud computing. The old trade and professional associations are withering before our eyes. Media lawyers say their First Amendment work is dwindling.

The old news industry of very large, prosperous institutions appears to be waning. Many of their successors may be smaller organizations operating on narrow margins or even on charitable contributions.

Or they may be enterprises of any size – even enormous, globe-girdling size – but without motivation to pay for news gathering that requires digging and fighting, and sometimes filing a lawsuit or lobbying a legislature. If all you have to do to make money in the news business is pass along news that other people dig up, why should you care if it took six months of digging, a FOIA lawsuit and a libel defense to get the story out?

So who will do this hard work in the digital age? Who’s going to maintain our fragile edifice of law and rules? Who will carry the torch?

Many of us attend or send people to conferences sponsored by organizations like the Online News Association. These questions belong on the agendas of those events, and we should be exerting ourselves to put them there while we still have the influence to do it.

Media lawyers do a lot of conferences and symposiums, too. There must be some where it would be appropriate to consider and discuss, at least informally, the question of who the clients of the 21st Century may be and how they might be coaxed onto the dance floor.

And it may turn out that as the online news industry takes further shape, the model that works might be one or more free-standing not-for-profit entities whose mission would be to advance the law of free media and open government through litigation and lobbying.

The Reporters Committee and AP itself are models for how productive this approach has been in the era of brick-and-mortar media.

Whoever the angels of the First Amendment are destined to be in the Digital Age, they aren’t likely to be showing up in significant force for a while. That means the future still depends on us. We – as the Kentucky Press Association has shown today – must continue the fight.


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