9b. Points of view – FOIA and sources

CLOSE THE LOOPHOLES IN THE FREEDOM OF INFORMATION ACT;
GOVERNMENT SECRECY RUNS COUNTER TO VIRGINIA’S LEGACY
BY BILL KOVARIK
The Roanoke Times / January 10, 2000, Monday, METRO EDITION, Pg. A7
(Note: Some of these loopholes were closed by the state legislature, in part due to a  positive reaction to the situation described below.)
THANK YOU for your Jan. 3 editorial (“A new commitment to government in the sunshine”) in which you supported a new office that will help state agencies comply with the Virginia Freedom of Information Act. Nothing could be closer to the spirit of government that inspired the Virginia Declaration of Rights in 1776, which said in part:

“That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants and at all times amenable to them.”

It has been Virginia’s long-standing disgrace that secret government and a brazenly public-be-damned attitude has festered in the shadow of our rich legacy of freedom.¬† Creating a “sunshine office” is a good start, but there are still enormous loopholes built into existing state law. One loophole involves access to law-enforcement records.

Here’s a good example of how things go wrong. Last fall, an on-duty Radford city police officer ran over and severely injured a Radford University student. I wrote the state police asking for a copy of their report on this incident under the FOIA. I was hoping to help student journalists clear up an apparent conflict between the officer’s story and the state police report.

But the request was denied since the law (Section 46.2-380) says that anyone involved in an accident, and his or her attorney or insurance company is allowed a copy of the accident report.

That’s right. The law says if you’re involved, you are entitled to a copy of the report. It actually doesn’t say that if you’re not involved, you aren’t entitled. And it certainly doesn’t say that what the police do is none of the public’s business.

It’s worth noting that another part of the state code, the FOIA itself (especially Section 2.1-341) says: “The affairs of government are not intended to be conducted in an atmosphere of secrecy …” and that the FOIA “shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government.”

These noble sentiments have been deeply undermined by contradictions in the law, which need to be corrected. Last year, a state survey found that requests for information about incidents involving police were appropriately answered by only 14 percent of the state’s police jurisdictions.

Clearly, a “sunshine office” is only the first step in making our “trustees and servants” amenable in the sense originally envisioned in 1776.

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Why journalists have a duty to protect sources

By Bill Kovarik — 07/06/05

A federal court sent New York Times reporter Judith Miller to jail today. She refused to reveal her source for a leak about the Valerie Plame affair.

“If journalists cannot be trusted to guarantee confidentiality, then journalists cannot function and there cannot be a free press,” she told the court a few minutes before they led her away.

The federal prosecutor, Patrick A. Fitzgerald, said Miller was placing herself above the law and threatened criminal as well as civil contempt charges.

The absurdity of the situation — after all, Miller did not publish the information she supposedly received — is beside the point. And the Bush administration has no doubt forgotten by now just how much flak Miller took for them in the run-up to the Iraq war. Critics of the war wish that she, in particular, had been less guillible. Its a mark of just how alienated Bush is from the press that his administration can no longer distinguish friends from enemies.

Many Americans probably think this is all just a lot of inside ball. The press is a remote institution. Most people have never met a reporter and dont have a clue what they do. Why should journalists claim a duty to keep their sources confidential? Is it some kind of arrogance or demand for “special rights?”

While a Constitutional right to protect sources may be a debateable proposition, on a day to day level it is an operational necessity. I’ve seen the need for it many times, but one particular story might help explain what I mean.

Some years ago, a prison break took place somewhere in Virginia. Ten prisoners escaped in a way that was (as Huck Finn famously said) “as easy and as awkward as it could be.” These were dangerous men, and before they were rounded back up, they did some serious damage: rapes, auto thefts, armed robberies.

But how did they escape? Why were conditions so lax in the prison? As I began looking into the incident, I realized that the only way to understand it was to get know the guards. I approached them quietly and found they would talk to me if I swore I would protect their confidentiality. I promised them I would even go to jail to protect their identity if necessary. They smiled at the irony. I shuddered.

But the guards were men I came to admire. They talked about being locked in a room with the world’s most dangerous thugs, and with nothing for protection but bravado and a nightstick. They also talked openly about some less than admirable things — fixing overtime accounts, stealing food from the kitchens, and returning brutality for brutality. They didnt like it. In fact, they were sure all that had been forced on them.

They talked about administrators who treated them with more contempt than the prisoners. They talked about how they got by on less than minimum wage. They talked about their families and their responsibilities and the enormous temptations of their jobs.

We met every day for a week at a roadside picnic table not far from the prison, and during these meetingsI began to get a picture of a system that had rotted all the way to the core. The guards were dangerously understaffed and the prisoners knew it. They were badly underpaid, and in an attempt to compensate, they filed phony overtime, which made the prison look fully staffed, and that kept the administrators complacent. The incredibly low pay also led to thefts of food from the commisary, and naturally the prisoners resented it.

One day, to everyone’s astonishment, the warden drove up to the picnic area. He said he heard his men were talking to a reporter off the record. He said he wanted to talk, too. Off the record. Would I promise him confidentiality as well? I could hardly refuse. What he added to the story made me realize that the prison system was not even listening to its own wardens.

The break-out, he explained, took place when a group of high security prisoners were transferred to his medium security facilty due to a court order. Because the system wasnt prepared, and because there was no money to prepare it, the prison administration let tensions build until something happened that would justify requests for adequate funding. They knew they were sitting on a powder keg. Heck, they even provided the matches.

As the guards and the warden talked to me, I realized that they were saying things to me that they had never even said to each other. I became a sounding board and, as I began to realize, a social safety valve with a very serious responsibility. There just wasn’t anyone else listening to these men. There just wasn’t any other way that the public could hear their story.

Everything I wrote was attributed simply to confidential sources, but when we went to press it was clear that somebody deep inside the system had filled me in. It didnt take too long before a state police investigator dropped by the newspaper office and asked if I would help him. I did confirm what I had put into print, but I refused (politely) to provide any names of the men who talked with me. His inquires were not followed by grand jury subpoenas, to my relief.

In the end, there was some reform: Guards were a little better paid, overtime was tracked, security concerns were taken more seriously, and food for prisoners was improved. However, the administrators needed to make an example out of someone, and they picked one of the guards who may or may not have been talking with me. He was transferred from an inside job to a position guarding a road crew, which is a sure way to court trouble. The next day, a prisoner that the guard knew very well ran off the road crew. The prisoner was a short time, non-violent offender and was just headed home to see his wife and kids. The guard, decent man that he was, simply could not shoot him in the back. The guard was fired the next day. (And later called me to thank me, since he was happy in a new job).

If the administrators had been sure that the guard had talked — if they even had a clue that ALL the guards, and the warden too, had talked — they would have all been punished severely, and quite likely put into harm’s way.

And so the reason that journalists must protect their sources is that the sources are often honest public servants who simply want the truth out. We call them whistle-blowers. Protecting their identity and allowing them to tell their story gives them a chance to reach the court of public opinion. If there is injustice or corruption, people on the inside need a way to tell the world. In that sense journalism serves as a social safety valve, an information feedback mechanism, and a vital functioning part of our Constitutional system.

Some might argue that journalists should protect every source every time, but I can’t agree with that. There might be situations involving national security or murder where a citizen’s duty might well outweigh the social utility of shielding sources. Off the job, if a journalist witnessed a crime, I hope they would do what any decent person would.

But journalists in their day to day work cannot become tools of political witch hunts and vengeful administrators. We cant snitch on demand and then expect the next whistle-blower to trust us. This is what kept journalists out of courtrooms and grand jury hearings in several 1970s cases, and that is what keeps Judith Miller from testifying in the Plame case today.

We may well need laws to protect journalists from zealous prosecutors simply out to punish the messenger. But come what may, journalists will continue to protect sources. — from jail cells if necessary.