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From the Summer 2009 issue of The News Media & The Law, page 22. It’s an old Washington staple: the…

From the Summer 2009 issue of The News Media & The Law, page 22.

It’s an old Washington staple: the official White House briefing, led by the high-profile administration staffer who refuses to be named on the record. As the Obama administration looks poised to carry on its predecessors’ unusually heavy reliance on background-briefings, some frustrated members of the press are calling for a time-out.

Toby McIntosh, managing editor of the Bureau of National Affairs (BNA), a news publishing company that provides information and analysis about businesses and the government, has joined the Sunshine in Government Initiative and other transparency advocates in a fight to get government back on the record. He has drafted a letter the groups plan to get journalists to sign and circulate to various agency and Capitol Hill press secretaries.

The letter asks officials to stop inviting the press to what are essentially public speeches and meetings, sometimes attended by 300 or more people, only to declare at the outset that their statements are to be off the record.

“We hope to educate people about why it’s not such a good idea,” McIntosh said. He worries that bloggers or other audience members with Twitter accounts, for example, who attend such meetings might not care about violating an off-the-record request. That would put the mainstream media in an uncomfortable position, McIntosh pointed out, deciding whether to abide the official request or supply readers with information that’s readily available on the Internet through others who were there.

As the attorney for the American Society of News Editors, Kevin Goldberg hears complaints from reporters faced with government sources who refuse to be attributed just as often now as he did during the Bush administration.

“I really think the people just need to take a stronger stand,” Goldberg said. “Part of the problem is if it happens to an individual reporter or publication they may feel they’re in this fight alone. But as long as people know it’s becoming part of the culture, if everybody fights back, government and corporations will get the message and realize they need the media as much as the media needs them.”

However, he said, “fighting back” by way of refusing to cover events is difficult in such a competitive atmosphere. He suggested reporters use an event for which it is in the interest of the speaker to have his message heard as an opportunity to demand it be delivered on the record.

It is “clearly something not just occurring during the Bush administration,” Goldberg said, but something that “will continue to occur as long as people let it.”

Backgrounding can create problems that go beyond competition between media organizations. Reporters complain that not being able to attribute information to an exact source leaves their readers in the dark when looking for someone to hold accountable when things go wrong.

Yet Ari Fleischer, a former White House Press Secretary in the Bush Administration, said he thinks background briefings are important for journalists because they offer a more detailed understanding of issues than will be given by an on-the-record spokesperson.

“Background briefings are a useful way for reporters to do their jobs while being respectful of the needs of the policy makers,” Fleischer told News Media & The Law. “Not everybody is and should be an on-the-record spokesperson.”

When he worked at the Bush White House, Fleischer said organized background briefings were held “as necessary, and (were) relatively infrequent.”

But to the complaint that White House officials deliver the same message “on background” in front of a group of reporters and then again on camera, Fleischer said, “I think that’s a problem. I don’t think the White House should do that.”

“To make backgrounding valuable it should be productive; it should be informative; it should be multiple layers deep; and it should be infrequent,” Fleischer said. “You make a mockery out of backgrounding if you say something on background and an hour later you say the same thing publicly on TV.”

Before becoming the Washington Post ombudsman in February, Andy Alexander was the bureau chief for Cox Newspapers. He said he often watched government staffers hold press conferences and require that attribution be given not to them, by name, but to some variation of “senior White House official.”

Disturbed when President Bush and White House employees would deliver the same information on television that could not be attributed just a few hours earlier, Alexander and other bureau chiefs banded together to confront then-White House Press Secretary Scott McClellan.

“[We] made the point that you frequently complain about us using anonymous sources,” Alexander recalled, “but when you do these senior official backgrounders, you’re putting us in the position to do exactly that.”

A new administration has taken over since then, but Obama’s pledge to break open government has not translated into anything like a ban on no-name briefings. Alexander has used his Post column to call attention to the issue.

“I think there’s power in numbers,” he said. “We should not be complacent to their PR strategy. We should be trying to put people on the record. We should be trying to curb these, because they will expand throughout the bureaucracy.”

Elsewhere in government

Alexander says that as unofficial background briefings became the norm at the White House, the trend spread to other governmental agencies.

David Carney, writer and publisher of the Tech Law Journal, agrees.

About 10 years ago, Carney says, he was first told that the information shared at a public meeting held by the Federal Communications Commission was off the record. Since then, he said, he’s seen the same thing happen at the Federal Trade Commission, and the National Telecommunications and Information Administration. “It’s getting worse,” he said.

“Of course, I zealously follow any agreement I reach with a source,” he said, but draws the distinction that in these instances, “they’re saying ‘we can unilaterally impose an agreement upon you.’ I formally tell these people I have not agreed to an off-the-record condition and they tell me to leave or don’t let me in the door or tell me in advance not to come.”

Yet these meetings are still, technically, public. “The only class of people prohibited from distributing info about these meetings is reporters,” Carney said, mentioning that he has seen individuals who are not members of the press attend the meetings with notepads, voice recorders and video cameras without being bothered.

In order to keep reporters like Carney out of these meetings, he explains, they will often be run by outside groups (the Federal Communications Bar Association and the Bar Association of the District of Columbia are common outlets) through which the agencies can impose harsher restrictions than the public agencies.

“When the agencies want to go have this secret procedure, they go to these groups,” Carney said. “It’s their building and there are trespass laws. That’s how they can get away with this.”

Why would agencies care so much about keeping journalists in the dark? Carney alleges that barring smaller, newer companies from accessing information about recent advances and regulations in the industry can give older companies who can afford a representative in Washington a competitive advantage. Also, he said, big Washington law firms benefit from hiring former FCC employees who can provide insider advice to high paying companies.

Journalists, he points out, offer the same information at a much lower cost.

“I’ve had some long conversations, some meetings with people. I’ve written letters. None of this has gotten me anywhere. It’s just gotten me better known,” he said. “People are just on the lookout for me. It’s been a little bit counterproductive.”

But other groups seem to be making more of an impact on the situation.

Some White House correspondents, like McClatchy Newspapers’ Steve Thomma, noticed early on in the Obama administration that staffers seemed to put more briefings and conference calls on background than their predecessors. Thomma said he and other reporters realized they needed to do something after the day the president nominated Sonia Sotomayor to become the next Supreme Court justice.

“A number of officials spoke on background and then went out to the White House driveway and spoke on camera,” delivering the same message, he said, naming senior advisor David Axelrod in particular.

“The practice of speaking on background is an old and accepted and sometimes practical one,” said John Walcott, McClatchy’s bureau chief. “What’s happened in the last 20 years or so is that the practice has gotten completely out of control. Now it’s not used out of diplomatic necessity or need to preserve some measure of confidentiality; it’s become a way of putting out information that may or may not be accurate with no accountability.”

In an effort to curb the administration’s propensity for blocking the names of government sources, bureau chiefs from McClatchy, The Associated Press, the New York Times, USA Today, Bloomberg, and Reuters heeded their correspondents’ complaints and sought out Obama’s press secretary, Robert Gibbs.

“Their argument from the first meeting was ‘gee, everyone else is doing it. All the people in Congress talk on background and are quoted in your newspapers, so why shouldn’t we do the same?’” recounted Thomma. The publications countered that “you speak for the entire executive branch; you’re speaking for the government,” he added.

Two more meetings have taken place since the initial one; the most recent was organized by Gibbs himself right before the President’s trip to Europe for the G8 meeting, where Thomma noted a vast change in the behavior of government officials.

“During the first overseas trips, rarely did a senior administration official come over to the press briefing room and when they did it was on background,” he said. “On this trip, by comparison, senior people came over every day to brief us on what the president was saying and hearing in these meetings, what action was taken, and they were on the record every time. It was very helpful.”

But since the administration’s return to Washington, White House reporters have already been faced with the familiar backgrounder. Just a couple of weeks after the overseas trip, Thomma saw two White House briefings held on background. He said email invitations to the briefings were sent to reporters, noting that they would be on background. The officials told the reporters this allowed them to assume that those who showed up had accepted the rules, he said in an email message.

“A group of us are sending a message to Gibbs to ask why the backsliding,” Thomma said.

Most recently, the Obama administration’s briefing tactics were held to an unlikely standard. The State Department announced that a conference call briefing on the U.S.-China Strategic and Economic Dialogue that was taking place in Washington would be held on background. A frustrated reporter pointed out that a briefing on the same information conducted by Chinese officials was being held on the record and asked, “Which country is more open?” The reporter also told the State Department spokesman Ian Kelly, “you should be embarrassed,” according to a report by McClatchy’s Washington Bureau. Ultimately, the conference call was conducted on the record.

Walcott points out that despite the recent improvement, “it’s not something that is going to be solved overnight.”

“This issue is going to be with us through this administration and beyond, it’s going to require constant attention,” Walcott said. “It’s a permanent source of friction but I think these are healthy fights to have. I think what’s unhealthy is when the government simply dictates.”