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Veteran investigative reporter and producer Sheila Kaplan finds her current work as a researcher at Harvard University’s Edmond J. Safra Center for Ethics comes with certain perks. When she contacts the Environmental Protection Agency wearing her “Harvard hat,” she says, staffers are allowed to talk to her.
It was a different story when she called as a reporter with the same request, she recalls.
In 2009, Kaplan, then a freelance reporter in California with Politics Daily, set up interviews with scientists working at the U.S. Environmental Protection Agency’s office in Research Triangle Park who had agreed to speak with her on the topic of brain-damaging chemicals. However, when she arrived at the Durham, N.C. office, she was met by a public affairs official who explained that her interviews were either canceled or would be conducted with the official present.
“These are scientists — taxpayer-funded scientists working on issues that are important to the public,” said Kaplan. “Their work should not be secret or filtered through a PR person.” The EPA did not respond to questions about Kaplan’s experience.
Recent surveys of journalists indicate that, while some positive changes have been made with respect to access to federal health and science experts, Kaplan is not the only reporter feeling frustrated by still-existing barriers.
Last fall, the Columbia Journalism Review published an article reporting the results of a survey it conducted in conjunction with ProPublica of nearly 400 science, environmental, and health journalists, seeking their impressions of this administration’s level of transparency.
“To some extent, the survey contradicts the impressions of journalists who complain that the situation is worse under Obama than it was under Bush,” wrote CJR’s Curtis Brainard. For example, Obama received better grades than Bush in four categories: “interview permissions,” “interview minders,” “online databases,” and “processing [FOIA] requests.”
However, this administration’s progress in those categories — with the exception of “online databases” — was “small to insignificant,” Brainard wrote, adding that “[m]arginal progress . . . does not an open government make.”
The results of a Society of Professional Journalists-sponsored survey released during Sunshine Week in mid-March indicated that “information flow in the United States is highly regulated by public affairs officers, to the point where most reporters considered the control to be a form of censorship and an impediment to providing information to the public,” according to the survey report.
For example, three-quarters of the respondents said they had to obtain approval from public affairs officers prior to interviewing agency employees, while approximately half reported being barred from interviewing government employees at least some of the time. More than half said they try to circumvent the agency’s public affairs office at least some of the time.
Because of instances when press officials have interrupted her, tried to steer the direction of conversations, or objected to questions, Kaplan says she often conducts interviews at coffee shops.
“There are good ones and bad ones,” explains Joseph Davis, director of the Society of Environmental Journalists’ WatchDog Project, recalling his encounters with government minders from when he was a reporter with Congressional Quarterly. “The good ones just sit quietly with a notepad in the hand and don’t say too much, and the bad ones will intervene in the interview and interrupt and explain or sometimes even warn the scientist that they’re only allowed to talk about X subject and Y subject.”
He recommends reporters “cultivate direct relationships” with scientists and sources instead by attending professional meetings in which they are delivering papers.
From an agency perspective, Bill Hall, director of the news division for the U.S. Department of Health and Human Services, says the “goal is [to] help us better serve the media, not run interference or prevent interviews from happening.”
“The good ones” can be “really helpful,” says Felice Freyer, a medical writer at the Providence Journal and chair of the Association of Health Care Journalists’ Right to Know Committee. For example, she says, a public affairs official listening to an interview may know where to obtain information when the interview subject does not.
“But I think it should be up to the reporter to decide whether this person is listening in or not,” she adds.
According to some health and science reporters, one factor compounding the access problems is that some agencies lack clear rules on how — and with whom — interviews can be conducted, a problem some federal officials claim they are currently addressing.
Scientific integrity policies and media access policies
On April 6, Office of Science and Technology Policy Director John Holdren announced that most agencies and departments with science- or technology-related missions met a March 30 deadline to publicly release final or draft versions of their scientific integrity policies. In an earlier December 2010 memorandum, Holdren provided agencies with guidelines for establishing written policies designed to strengthen the integrity and credibility of federal science. Among other things, he said, this meant “promot[ing] and maximize[ing], to the extent practicable, openness and transparency with the media.”
Holdren’s guidelines — an effort to implement President Obama’s March 2009 memorandum on scientific integrity — encouraged agencies to ensure federal scientists could, “with appropriate coordination with their immediate supervisor and their public affairs office,” speak with the media on “matters based on their official work.”
These documents articulate — in varying degrees of detail — agencies’ policies and procedures for media access. They address, for example, the role of public affairs staff in responding to media questions and facilitating interviews.
Hall says that for HHS, the guidelines “really only summarize what we have been doing for many, many years throughout the Department.”
AP Photo by Mark Humphrey
However, some have criticized the process behind the development of the policies, as well as the resulting products.
In August 2011, government watchdog OMB Watch described the implementation of Obama’s March 2009 memorandum as “promising” but “haphazard,” noting that agencies were not required to solicit public comment on their policies. A few agencies, including the EPA and the National Science Foundation, took “the wiser approach of being more open,” OMB Watch reported.
Public comment periods generated significant changes in some of the policies. For example, watchdog group Public Employees for Environmental Responsibility (PEER) described EPA’s initial draft as “pathetically weak,” criticizing its requirements that media contacts adhere to clearance procedures — without “la[ying] out” those procedures — and that public affairs staff attend media interviews. On its website, SEJ called it “the first time that the EPA’s previously unwritten minders-and-permissions policy for press interviews” was reduced to a public, written, agency-wide policy.
According to Union of Concerend Scientists’ website, after receiving more than 25,000 public comments, the agency made “significant improvement” to its policy. For example, it added a provision encouraging public affairs officials to “ensure that the science is plainly and clearly communicated for the intended audience in a timely fashion.”
However, the agency also retained a provision that media interactions comport with “clearance procedures,” stating: “The EPA Scientific Integrity Committee will develop an Agency-wide framework for the approval of scientific communications.”
The agency also maintained that public affairs officials “should” be present in media interviews in the later draft. When asked whether a reporter could opt out of the presence of a public affairs staff member under this provision, the EPA press office did not answer the question, but stated that the agency is “committed to agency transparency, which is why the policy was opened up for public review and comment.”
According to AHCJ’s website, HHS also made several key revisions to the March version of its media guidelines after the organization expressed its concerns with the earlier September draft.
For example, the agency added a clause to the section barring nonemployee contractors from speaking on behalf of the agency that provided for “exceptions” to this rule “on an individual basis,” AHCJ noted approvingly. Hall says this exception will apply in situations where the “resident expert” was hired on a contract basis, but would “likely be the best person to speak with reporters” about a topic.
However, a troublesome clause remained, as AHCJ noted: the agency’s requirement that its employees “coordinate with the appropriate public affairs office/personnel” before participating in an interview.
When asked if — under that guideline — public affairs office employees would be expected to be present during media interviews, Hall responded in a written statement: “I don’t think there’s an expectation one way or the other.”
“In my 30-plus years in public affairs at HHS, I don’t ever recall a reporter demanding the removal of a press officer for an interview,” he added. “I’m sure that if we ever faced that bridge, we would collaboratively figure out a mutually agreeable way to cross it.”
Lyrissa Lidsky, a media law professor at the University of Florida, explains that while reporters “ha[ve] every right to try to contact” federal employees for interviews, they do not have a First Amendment right of access to them. As for the employees, they do not have the same First Amendment speech right in their employee capacity as they have as citizens. This, she adds, is what leads to “lots of leaks.”
Access to records
Notably, 31 percent of the CJR-ProPublica survey respondents gave the current administration a grade of “strong” or “very strong” on its access to “online databases.” However, journalists say some databases they rely on lack some of the most critical components.
For example, in November, the U.S. Health Resources and Services Administration (HRSA) restored public access to a database that contains records of disciplinary actions and malpractice judgments against licensed health care practitioners, without the practitioners’ identities. However, it did so only upon attaching conditions to its use.
HRSA removed the National Practitioner Data Bank Public Use File from its website last September after receiving an attorney’s complaint that a reporter from The Kansas City Star had identified his client, a doctor, by comparing the database records with other information. The agency also threatened the reporter with civil penalties for “republication” of the database information.
Following heavy public criticism, the agency reposted the database in November; however, downloading it would now signify consent to a “Data Use Agreement,” which permits use of the database only for “statistical reporting or analysis that does not identify any individual or entity,” and forbids its use “alone or in combination with other data to identify any individual or entity.” Further, users must delete or return copies of the database to the agency upon request, and may not repost it.
AHCJ President and ProPublica reporter Charles Ornstein says it concerns him that the databank is now being restricted after having been made publicly available for years by both Republican and Democratic administrations.
In December, a group of journalism organizations, including The Reporters Committee for Freedom of the Press, sent a letter to the HRSA protesting the use agreement and seeking clarification on what consequences journalists would face if accused of violating it.
HHS responded in April, defending the use agreement as necessary to ensure the agency meets its “legal obligation” to maintain the database “in a form that does not permit . . . identification,” and stating that it will “investigate alleged breaches of’ the use agreement “on a case-by-case basis.” However, the letter said, the agency could not compel a reporter to speak with it, although it could “request additional information from the reporter or third parties.” Further, the agency stated that – pursuant to advice from its Office of the General Counsel – violators of the use agreement are “not subject to criminal, civil or administrative penalties.” Upon finding any misuse, the agency stated it will consider removal of those data points that made the information identifiable.
Ornstein says his “ideal approach would be to go back to the way [the database] was” before its original removal. Following the letter from HHS, he issued a statement on the AHCJ website advising reporters to consult their editors and attorneys before downloading the databank, or to download another version of the file available on the Investigative Reporters and Editors website which, while not having been updated after August 2011, does not carry a use agreement.
Ken Ward, who has reported on mine safety for the Charleston Gazette in West Virginia for 21 years, says while the Mine Safety and Health Administration makes a database of information about underground mine inspections and enforcement actions available on its website, it withholds key information: the inspector’s narrative of the actions that violated regulations. For that information, he says, he still has to submit a FOIA request.
In an email response, MSHA press official Amy Louviere stated that those notes are released if they are “not part of an ongoing enforcement action” and “with names of lower-level mine operators redacted for personal privacy.” She adds that “[o]n occasion, additional information may be withheld as pre-decisional/deliberative material.”
Ward says in some areas, the agency has shown improvement, such as making agency officials more accessible for interviews. However, he says “there are still a lot of problems” where it comes to FOIA requests. Louviere said MSHA received 2,218 FOIA requests in 2011 -“the most ever in a year” – and “does its best” to timely process requests “based on the resources that are available.”
According to Ward, however, “they are still taking months and months and months” to respond to FOIA requests. For example, he says, he is still — two years later — waiting for records from a request he filed after the April 2010 Upper Big Branch Mine explosion in West Virginia.
“You had a mine disaster and you had 29 miners blown up and it took an inordinate amount of time for MSHA to release some of the key records here,” he said.
Likewise, Kaplan says where her FOIA request with the EPA is concerned, her “Harvard hat” has “not helped at all.”
In April of last year, Kaplan requested five years’ worth of written correspondence that members of Congress and their staffers sent the agency for her current research — a study of the outside influences that affect the EPA’s ability to execute its mission.
Nearly a year later, Kaplan says she has received very few documents, despite her attempts to negotiate with the agency. She gets the impression “they’re just trying to drag it out.”
“I answer a question, they wait a few more weeks and ask me the same question again, and somehow miss my email response,” she says.
When asked to comment on the timeliness of agency’s processing of Kaplan’s request, an EPA official explained in a written statement that while it seeks to process requests within the statutory time frames, “the goal cannot always be met” due to factors such as the complexity of requests and staff availability.
The next step: implementation
What remains to be seen is how the media access provisions of the scientific integrity policies – and the underlying principles of openness – will be implemented. Freyer says from her organization’s quarterly conversations with HHS, it seems “they’re working very, very hard to . . . get the system organized and make the rules clear.”
Similarly, Francesca Grifo, director of the Scientific Integrity Program of the Union of Concerned Scientists, says her meetings with EPA officials have made her “cautiously optimistic” that it will abide by its media policy.
But, she adds, “There’s a big difference between a piece of paper and something like this really being in the DNA of the agency, and it’s really hard. It takes a lot of training, a lot of undoing of a previous culture of fear.”
For many health and science journalists, therefore — as the SPJ survey indicates — avoiding the press office remains an attractive option.
“It’s hard for a reporter to figure out why on earth they would ever want to go through the press office,” Davis says.