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Freedom of Information in a Post-911 World
Keynote address
Society of Professional Journalists Regional Conference
April 9, 2005

It is a particular pleasure to speak to members of the Society of Professional Journalists. I have been a card-carrying member of SPJ for 24 years. In 1981, I joined the student chapter at Iowa State University, where I was editor of the student newspaper. I then became affiliated with the Quad-Cities professional chapter during my reporting years on the Quad-City Times newspaper in Davenport, Iowa. Finally, I joined the Utah Headliners Chapter of SPJ when I moved back to Utah in 1986 to work for the Deseret News.

After going to law school and beginning law practice in 1991, I stayed involved with SPJ and began working as a pro bono lawyer for the Utah Headliner's Chapter. For the past decade or so, I have acted as legal counsel to the Utah SPJ chapter, representing the chapter and other media organizations on a variety of media law issues, including, in particular, access to government records and meetings. In that role, I have greatly valued my association with Linda, Joel Campbell, Don Meyers, Jim Fisher and the many other SPJ board members and officers with whom I have had the pleasure to work.

Sometimes you need to be reminded of this, so I will remind you. The work you do is important. Here in Utah, there is simply no other organization that does the work done day-in and day-out by SPJ. I suspect that is true in many of the other states represented here today. SPJ is a local and national leader in fighting for the public's right to know, protecting journalistic freedom and independence, and in promoting and recognizing excellence in journalism. I want to take this opportunity to thank you for doing this important work.

I was asked to say a few words today about what has happened to freedom of information and of the press in this post 9-11 world. This is a topic of obvious concern to journalists and it has been covered extensively in numerous publications, reports, and studies. Instead of re-plowing that ground, what I would like to do in the next 20 minutes is focus on what you, I and others who care about freedom of information and open and accountable government can do about this growing threat.

First, let me outline just a few of the salient features of the threat. Although the USA PATRIOT Act and the attempts to force news reporters such as Judith Miller and Matthew Cooper to reveal their sources have garnered much of the public's attention, there have been other, less publicized, threats to freedom of information since 9-11. I would like to touch on three of them.

Secret Detentions and Court Proceedings.

Since 9-11, the United States government has secretly detained and imprisoned more than 1,100 individuals, some of them American citizens, on alleged immigration violations or as material witnesses. Most of these detainees have never been charged with a crime or given access to a lawyer. For the vast majority, the government has refused to disclose their names, how long they have been held, or the reason for their detention. The government says this information must be kept secret to protect the personal privacy rights of those it is detaining, a justification that, to me, seems a stretch of logic at best.

Equally disturbing is that secrecy has become the default status for court hearings involving the detainees. Traditionally, judicial and immigration proceedings operate under a presumption of openness. After 9-11, that presumption has been reversed, at least in the area of terrorism-related proceedings. The result has been less information to the public about these proceedings and less ability to monitor the fairness of the proceedings.

Reversing the Presumption of Access under FOIA.

In early November 2001, I was in New York City and visited Ground Zero, while the ground was still smoldering. Shortly before my trip, Attorney General John Ashcroft released a policy statement known as the "Ashcroft Memorandum," which significantly changed the government's approach to requests made under the Federal Freedom of Information Act. Attorney General Ashcroft's memorandum promised federal agencies fielding FOIA requests that if there were any "sound legal basis" for denying a FOIA request, the Justice Department would back the agency in court. The new directive repealed a pro-disclosure directive issued in 1993 by then Attorney General Janet Reno, who instructed agencies not to use discretionary exemptions to deny FOIA requests unless they could point to "foreseeable harm" that would result from disclosure. The agencies, of course, look to their leaders for directions on how to respond to FOIA requests. What this has done, in practice, is to reverse the presumption of access under FOIA, increase the number of discretionary denials, and result in less information for the American public.

More Secrecy in State Sunshine Laws.

Following enactment of the USA PATRIOT Act, many states, including Utah, created new exceptions to their open records and open meetings statutes. These exceptions ranged from making secret any discussions of emergency response plans and security measures to exempting from open records laws architectural drawings of public buildings and infrastructure. Some of the more drastic state rollbacks were defeated or amended. Others are being challenged in court. Many are still on the books and likely to remain there. More subtle and more disturbing, in my opinion, is the spillover effect these rollbacks have had in other areas of state sunshine laws. For example, reporters I talk to say law enforcement agencies are redacting more information than ever from police reports. There have been efforts to conceal the identities of law enforcement officers from the public on grounds of safety and security. The public benefit of openness in government records and meetings is being questioned as never before.

It's hard to believe, but three and a half years have now passed since Sept. 11, 2001. The secret detentions continue, the USA Patriot Act is up for renewal, and reporters in this country still face the threat of jail time for refusing to disclose to prosecutors and grand juries their news gathering and news sources.

What can be done about this? What can journalists, news organizations, journalism professors, lawyers, and others who care about freedom of information do? Let me suggest four practical ways you can make a difference.

First , you're journalists, so report on it. The balance between secrecy and openness in government is an issue that the public deserves to hear about. Chief Justice Warren Burger wrote the following, "[P]eople in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing." A functioning democracy requires an informed citizenry. It's your job to inform them. If the government refuses to release an audit, police report, or other government record on a newsworthy and important public issue, tell your readers, viewers, or listeners about it. Join with other news organizations and conduct an audit of the FOI laws in your state. Report the results of the audit to your readers, viewers, and listeners. Sun light is the greatest disinfectant. It's also a powerful agent of change. Shine some sun on government secrecy.

Second , challenge government secrecy. If you are denied access to a government record, whether on grounds of national security, the war on terrorism, or some other ground, challenge that denial. If you are excluded from a court hearing or denied access to the name or charges filed against a criminal defendant, challenge that exclusion. If you are subpoenaed by a prosecutor, defense attorney or law enforcement agency to disclose your sources, your notes, or outtakes, challenge that subpoena. Will you win every battle? No. Will your news organization decide to take every battle to court? No. But unless there is some push back by journalists, news organizations, FOI groups, and their lawyers, we will have abandoned the field to those who would make government more secret, less accountable to the public, and less sensitive to the First Amendment rights of the press and the public.

Third , organize. Thanks to our tax dollars, the government bureaucracy is well funded and well organized. The news media's defense against government secrecy and its protection of the First Amendment also must be muscular and well organized. Journalists, news organizations, and FOI groups that collaborate and work together on freedom-of-information issues are simply more effective. Because the news business is so fiercely competitive, this is sometimes a tough sell. You're out there every day trying to beat each other and get the story. But freedom-of-information and an independent press are issues of common concern to the press and the public. These are issues that transcend competitive business pressures. Here in Utah, the various news organizations frequently act as a coalition to oppose government restrictions on access to public information. SPJ has always played a critical role in that coalition building. Whether it's lobbying to defeat ill-advised legislation, intervening in a court case to keep the proceedings open, or working with the courts to make electronic records more accessible, working as a coalition is more effective. To borrow a phrase the military likes to use, acting as a coalition is a force multiplier. It signals to government that the issue is of major importance to the news media, lets government know it is going to have a major fight on its hands, and is more economical because the costs are shared among all participating news organizations.

Fourth , support political efforts to restore balance to government information policy. Journalists, open government advocates and civil libertarians aren't the only ones troubled by the increasing government secrecy that followed in the wake of 9-11. Many senators and representatives believe the pendulum has swung too far toward secrecy and restrictions on civil liberties, and that it is time to move it back. Democratic Senator Patrick Leahy, one of the biggest supporters of open government in the Senate, and Republican Senator John Cornyn are sponsoring the Open the Government Act, which would, among other things, reform the FOIA by creating an Internet tracking system so citizens could check on the progress of their FOIA requests, create an FOIA ombudsman to review agency openness and mediate records access disputes, and put teeth in FOIA's response deadlines by allowing a FOIA requester to recover attorneys' fees and court costs if they were forced to file a lawsuit to get a response. Senators Richard Lugar, Christopher Dodd, and Lindsay Graham have sponsored the Free Flow of Information Act, which would create a federal shield law to protect journalists from compelled disclosure of confidential sources and other news gathering material.

On the state level, last fall California joined five other states in providing state constitutional protection guaranteeing the right of the public to access government records and meetings. Eighty-three percent of California voters endorsed Proposition 59, which demonstrates to me that the public still wants open and accountable government, even in this post 9-11 world. Enshrining freedom-of-information provisions in state constitutions is a potent legal means of protecting the public's right to know because such provisions are not vulnerable to the whims of legislators. Because state constitutions are supreme law of the state, their provisions trump contrary state statutes and policies.

These legislative efforts may be a sign that the political pendulum is swinging back toward access and open government. I hope that is the case, but it's too early to tell. What is clear is that political reform will not succeed without public support. These efforts deserve support.

I would like to close by quoting from a letter that New Mexico Governor Bill Richardson wrote to the Nuclear Regulatory Commission protesting the NRC's decision to withhold information from the public during hearings on licensing a proposed uranium enrichment factory.

Governor Richardson wrote, "Freedom of information may be the greatest anti-terrorist weapon in the United States' hands because it allows everyone to think about potential terrorist threats and design anti-terrorist safeguards."