ASNE submits comments on presidential records

• By: ASNE staff
• On: 04/27/2009 00:00:00
• In: First Amendment

ASNE has joined the Reporters Committee for Freedom of the Press on two sets of comments filed with federal Executive Branch agencies that are considering changes to the way information is accessed regarding Presidential Records and regarding aviation safety records relating to "bird strikes" by airplanes.

On March 24, 2009, the National Archives and Records Administration ("NARA") requested the submission of comments or suggestions on the collection, retention and distribution of Presidential Records. The request was open-ended, seeking any suggestions that would help the agency in these areas. Access to Presidential records under FOIA can occur as soon as five years after a president leaves office; the Presidential Records Act allows further restrictions on access for up to twelve years (the Bush Administration took these to the extreme, both in terms of length of time in which restrictions would be in place and in terms of who could invoke such restrictions to access).

The RCFP/ASNE comments, which can be accessed here were filed on April 17, 2009 and suggest greater use of the Internet to distribute Presidential records and specifically advocate the proactive posting of records to the NARA or Presidential library Web sites, where applicable, with increased search capability. These facilities would require digitizing more records, which we also favor as long as there is no destruction of non-digital records as a result. There should not be limits on the size of files or the number of pages released, though we agree that negotiations between a requester and NARA are appropriate for purpose of expediting a records request and limiting the requester's expense. 

The two organizations also filed joint comments [insert link to FAA comments] with the Federal Aviation Administration ("FAA" ) on April 20, 2009 in a proceeding governing access to information voluntarily provided to the FAA regarding instances in which an in-flight airplane strikes a bird. The FAA currently collects "bird strike" data when it is voluntarily provided by airlines to a "National Wildlife Strike Database."

Once in the possession of the agency, of course, that information becomes a public record subject to any applicable Freedom of Information Act exemptions. In the instant proceeding, opened on March 19, 2009, the agency proposes to make these reporting requirements mandatory while exempting the collected information from FOIA, under the theory that the information is likely to be misinterpreted by the reviewing public at great detriment to individual airlines or airports.

As our comments point out, the great irony is that this movement toward secrecy comes at a time when public interest in bird strike data is at its highest and "Public access and analysis of the data will lead to a quality discussion about the dangers of bird strikes and air travel - and to more educated choices by government officials and the public on how the danger can be curtailed." It also comes in the wake of strong and unequivocal statements by President Obama and official White House and Department of Justice Memoranda requiring greater transparency in government (regardless of the ability of the public to process and understand that information).

The government would be restricting access to a database that has been publicly available for years and to which voluntary submissions of information consistently have increased over the past two decades. Indeed, the information in this database contradicts the consistently low estimates by FAA officials regarding bird strikes. Thus, our comments demonstrate the clear need for continued access to a database that will be more accurate and informative than ever by virtue of a new mandatory reporting requirement. The comments cite to and quote several news articles relying on information obtained from the National Wildlife Strike Database.

Of further interest to members may be an upcoming oversight hearing on the Freedom of Information Act in the Senate Judiciary Committee, tentatively scheduled for some time in June. Associated Press President Tom Curley will be testifying on behalf of that organization and the Sunshine in Government Initiative (ASNE and AP are among the nine members of the Sunshine in Government Initiative). While Mr. Curley will be advocating for greater openness and better FOIA processing in several areas, we hope that the Judiciary Committee devotes at least some attention to this FAA proceeding and the bird strike issue among the many topics it considers in June.

Perhaps we shouldn't be surprised that the federal shield law is moving rapidly through the 111th Congress, given that the shield law effort progressed farther in the 110th Congress than it ever had before. However, as far as surprises go, at least this is a pleasant one: it could take the 111th Congress just four months to equal the success of its predecessors, with the full House of Representatives having passed HR 985 by voice vote on March 31, 2009, and the Senate Judiciary Committee poised to consider S 448 as early as this week.

As much as we would celebrate reaching this legislative apogee, we are also mindful that this is where the real work would begin.   We knew that the House was extremely likely to pass HR 985, given the overwhelming support for HR 2102 in the 110th Congress (it passed by a 398-212 margin); we are also confident that the Senate Judiciary Committee will pass S 448, as Committee Chair Patrick Leahy (D-VT) has long been a supporter of a free press and Ranking Minority Member Arlen Specter (R-PA) is the sponsor of this particular bill.

There would be dual hurdles to overcome from this point: (1) getting the measure to the Senate floor and (2) resolving any differences between the House and the Senate versions if the Senate passes S 448. Senate rules make it very easy for a single Senator to put a "hold" on a bill and effectively stop forward progress; one such hold placed by Senator Jon Kyl (R-AZ) doomed S 2035 in the 110th Congress. The hold was one step too many to overcome on the eve of a historic Presidential election.

We remain hopeful that, in the event of another hold on the bill, we can get the required 60 Senators to demand a debate and floor vote on S 448. It is our understanding that the Senate Judiciary Committee may hold a hearing or vote on S 448 soon.

ASNE member support - as always - would greatly help the success of S 448 in the Judiciary Committee; editorials directed at both the Senate and the Administration would be crucial to our efforts on the Senate floor, as we need at least 60 firm commitments in favor of S 448 to ensure that floor time is scheduled and a vote occurs. After that, legal counsel will work with representatives of the more than 70 other organizations and companies that support the Free Flow of Information Act and with Hill staff to get one version of this legislation - or a compromise between the two -through both Houses and to the President's desk for his presumed signature (you may recall that then-Senator Obama co-sponsored S 2035 in the 110th Congress, announced during the joint ASNE/NAA Convention in Washington in April 2008). Links to editorials written by other ASNE members, as well as general information regarding the legislation, can be found on the Free Flow of Information Act page of the ASNE website.

The need to enact the Free Flow of Information Act into law becomes more acute with every passing day. Detroit Free Press reporter David Ashenfelter avoided significant fines (which the trial judge could have required Mr. Ashenfelter to pay out of his own pocket) and, possibly, jail time when a trial judge ruled on April 21 that Mr. Ashenfelter's Fifth Amendment right against self-incrimination permitted him to refuse to testify about the source of information relating to his 2004 stories on prosecutorial misconduct during a federal terrorism trial. However, there was no ruling that the First Amendment protects a reporter called into court, thereby prolonging our fears regarding the next reporter in this situation.