Missed ASNE chat on fighting for access? Replay here!

On Wednesday, June 28, we hosted our second live video event, dubbed "ASNE Expert Series: Fighting for access," with moderator Karen Peterson and experts ASNE Legal Counsel Kevin Goldberg, attorney at Fletcher, Heald & Hildreth, P.L.C., and Lucy Dalglish, dean of the Philip Merrill College of Journalism at the University of Maryland. 
We discussed journalist access issues and covered some of the most important topics, such as document requests, access to meetings and events, physical assaults and arrests and confidential sources. 
For those who weren't able to join the chat, the video is available below for replay. Also, read the summary (below the video) by Goldberg for tips and takeaways.



The past few months have been notable for several verbal and now physical attacks on journalists. There have also been high profile discussions and even fights over access to the White House and other high ranking government officials. Each individual event has been met with shock, leading to statements of outrage and a fair amount of “how did we get here?” But, to some extent, focusing on a single denial of access, a single arrest, a single assault or a single threat to sweep reporters into leak investigations runs the risk of missing the forest for the trees.  

In reality, threats to newsgathering are becoming increasingly problematic because they are not only more stark, but also more intertwined. It's becoming harder for a reporter to change tracks in his or her pursuit of a story because the alternative roads to the same or similar information are already being blocked. This administration is similar to its predecessor in one key respect: It is increasingly strategic and savvy about controlling its message; editors need to become more strategic and savvy in fighting back, which means identifying and anticipating problems before they arise. 

Editors should be aware of negative developments with regard to federal and state Freedom of Information Act and Right to Know laws, access to meetings and officials, increasing assaults on and arrests of reporters and the dangers of relying on confidential sources when all other attempts to obtain information fail. In addition to understanding how these major newsgathering areas fit together, they need to be proactive with regard to improving their chances of getting information through each individual method. This “long view” in each area requires: 

  • Understanding that it is taking longer and longer to obtain information through both federal and state access laws and that this is because of several factors from a massive increase in the number of requests being filed each day to the use of increasingly outdated technology by government agencies processing these requests to a boldness by these agencies to “game” the system when they want to be recalcitrant.
  • Identifying the key problem areas at the state level in particular and making sure that legislatures and agencies do not enact laws or implement policies, which then will prove difficult to overturn. Trending areas include (1) ANYTHING involving police information but particularly access to new technologies used by the police, such as body cameras and automated license place readers and information about officers involved in use of force incidents; (2) records, which may impact an individual's personal privacy; (3) educational records; (4) access to court records and (5) use of personal email/text/instant messaging/apps to conduct government business.
  • In addition to pushing back against bad legislative and policymaking efforts, newsrooms need to be committed to going to court when exemptions are imposed. But before this happens, steps need to be taken to speed up the actual processing of each individual request, a practice that will improve your chances of getting information in a timely manner but enhance the entire system. Requesting records demands attention not only to each individual request, but also your entire stable of requests. 

Access to Meetings/Places
  • Government officials no longer believe they need reporters to carry their message to the public; social media suits them just fine. That's why the number of press conferences is down and the rules for attending are changing. None of this is new, but the scale on which it is occurring is broader and more intense. Sadly, the law is not on our side when it comes to a right of access to press conferences or a right to interview a particular person. 
  • Still, the more you accede to these restrictions, the more you are complicit the next time they are imposed. This is especially true when a boycott is imposed on some or all members of the media, after which the government's “readout” or photos are enthusiastically accepted and published. Not every instance mandates a response, but you need to learn how to identify the truly egregious situation, pick your spot and manner of response and be willing to explain the significance of these issues to your readers. 

Physical Assaults or Arrests of Reporters 
  • Perhaps the most shocking trend are the increasing physical assaults on or arrest of reporters, the likes of which have been rare in the United States (especially when compared with what reporters face elsewhere in the world).
  • This is where editors can, and perhaps need to, step up and lead.  A professional basketball coach wouldn't put any of his players in a high-pressure, late-game situation without running through all conceivable situations in practice first; why would you send a reporter into a dangerous situation without any preparation (or less than full preparation)?  
  • Preparation for covering a tense event (which these days may include simply setting foot in a government building) must start weeks in advance and include the coordination of multiple parties: editors, teams of reporters and perhaps even legal counsel. In fact, it should also include outreach to those government officials themselves. Throwing a reporter into a dangerous situation cold is recipe for disaster, but prepping that reporter as to how to dress, act, identify problems and, in the worst case scenario, quickly identify himself or herself as a reporter and get help will minimize the danger.
Confidential Sources
  • With traditional, direct avenues to information blocked, there is always a temptation, if not outright need, to rely on disclosures of information from confidential sources.  Editors need to recognize the dangers involved and create newsroom policies regarding use of confidential sources. 
  • Reporters and editors should be clear as to when confidential sources should be used, agree how far they are willing to go to protect a source and, perhaps more important than ever, be knowledgeable about the dangers of using confidential sources.
  • Steps should be taken to minimize the government's ability to incorporate you into a leak investigation; these include knowing the technologies the government is using to ferret out leakers (and where and how it is most likely to be deployed) and then how to use (or not use) technology of your own to avoid being detected.  

Leading your newsgathering efforts requires recognizing that the threats to access are now, more than ever, broadly mosaic in nature. The response, now more than ever, must change from reactive to proactive.