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The fight for access in 2013: challenging secrecy and government overreach


The fight for access in 2013: challenging secrecy and government overreach

Red Prompt

The Associated Press has been recognized throughout its long history as an aggressive advocate for the public right to know, fighting for transparency in government and holding the powerful accountable. In 2013, that mission took on new urgency as secrecy and overreach increasingly encroached on the First Amendment. Vigilance — whether it involves the White House, the newly elected mayor of New York or local and state government — has never been so important.

Bill de Blasio, right, is sworn in as mayor of New York City by State Attorney General Eric Schneiderman, left, while his family, Chiara de Blasio, second from left, Dante de Blasio, center, and Chirlane McCray look on, Jan. 1, 2014 in New York. De Blasio took the oath of office moments after midnight at his home in Park Slope, Brooklyn.

AP Photo / Seth Wenig

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Reporters Without Borders listed the United States 46th — 13 places lower than the year before — in press freedom rankings for 2013, specifically citing the secret government seizure of AP phone records. The U.S. Department of Justice notified us by email in May of last year that it had subpoenaed, without advance warning, the records from 21 AP phone lines over a 40-day period in 2012 as part of a leaks investigation. The secret subpoena followed AP’s publication of a story revealing that U.S. intelligence had uncovered an al-Qaida plot to plant a bomb on a U.S.-bound airliner.

The action was unprecedented, and AP’s response was swift. President and CEO Gary Pruitt immediately sent a letter of protest to Attorney General Eric Holder. “There can be no possible justification for such an overbroad collection of the telephone communications of The Associated Press and its reporters,” Pruitt wrote. “We regard this action by the Department of Justice as a serious interference with AP’s constitutional rights to gather and report the news.”

“We regard this action by the Department of Justice as a serious interference with AP’s constitutional rights to gather and report the news.”

Gary Pruitt, AP president and CEO, in a letter to Attorney General Eric Holder

The DOJ’s actions provoked a tsunami of protest by media worldwide, and in July the Justice Department responded by agreeing to update and strengthen the guidelines for the use of subpoenas on journalists. We believe if they had been in place at the time Holder signed them into effect this year, it would have been significantly more difficult for the governement to take our phone records without advance notice. The Radio Television Digital News Foundation awarded AP its First Amendment Award for so strongly upholding press freedom.

We also protested the growing restrictions on access to President Obama by news photographers. Increasingly, the White House has been barring photojournalists from official events that we consider to be of public significance, instead providing handout images that show the president in the best possible light (AP’s policy is to refuse to distribute photos by the president’s own photographers unless it is truly a private event or there are logistical reasons a news photographer cannot be present). In an op-ed in The New York Times, AP Director of Photography Santiago Lyon accused the Obama administration of defying the principles of openness and transparency the president campaigned on by releasing a “sanitized” visual record of his activities. The White House has since agreed to allow greater access. We are keeping a close eye on the promise.

"By no stretch of the imagination are these images journalism. Rather, they propagate an idealized portrayal of events on Pennsylvania Avenue.”

Santiago Lyon, AP director of photography, in The New York Times

We saw a similar situation in New York City on New Year’s Eve as Mayor-elect Bill de Blasio insisted on having his official midnight swearing-in ceremony in private at his home. More disturbing, de Blasio was planning to livestream the event on the city’s website, so the claim to privacy wasn’t even valid. Just hours before it was to occur, AP protested. We were quickly given a place in the pool to cover the official ceremony.

Sometimes, our challenges to secrecy and overreach have impact beyond their immediate situation. In January 2014, Washington state released a new protocol allowing all parts of an execution to be viewed by witnesses. The revised policy was a result of action AP had taken two years earlier in Idaho. In 2012, a federal appeals court ruling said that all parts of an execution must be fully open to public witnesses — a ruling sparked by a case brought by AP and other news organizations that challenged Idaho's policy of shielding the preparation phase of executions, such as the insertion of IV catheters, from public view.

Some access battles involve ordinary requests, but difficult situations. For example, AP routinely requests 911 tapes after police incidents. But when we requested them following the Sandy Hook Elementary School shootings, the result was criticism on many fronts — public, government and some other media. Ultimately we prevailed in our legal effort, and the tapes were released this year. The success was critical for two reasons: First, it set a precedent about the value in observing police conduct in response to an emergency. But, importantly, we also learned that the police had acted responsibly in a tragic and urgent situation. Said Executive Editor Kathleen Carroll: “This was a horrible crime. It’s important to remember, though, that 911 tapes, like other police documents, are public records. Reviewing them is a part of normal newsgathering in a responsible news organization.”

In other words, the checks on government cannot stop just because the subject matter is difficult, and AP will always fight for the public right to know.