March 13, 2005 <http://www

March 13, 2005 <http://www.wvgazette.com/section//2005031230>

Re-published with permission from the Charleston Sunday Gazette-Mail

Out in the open: Media Needs To Stand Up for Right To Know

by Ken Ward Jr.

I wanted the fast-paced life of an environmental reporter.

And nothing epitomizes this glacial beat as much as monthly meetings of the state Environmental Quality Board. It's usually the board, its staff, me and maybe a dozen others, mostly industry lawyers and lobbyists, but sometimes an environmentalist or two and some folks from other regulatory agencies.

The meetings can be really painful. I've watched them debate for an hour about when to meet next, or — I hate to even write this — which topic to take up next.

The audience of interested parties doesn't help the situation. Lawyers, biologists, chemists and engineers are free to offer their thoughts. Sometimes, they all insist on responding to each other, over and over.

But it's Democracy in action, and it's all out in the open.

Well, it used to be. In December and January, I missed a couple of meetings, and everything changed.

The board formed a committee to study a change in West Virginia's water pollution limits for aluminum. Board members decided they didn't need to announce committee-meeting dates to the public, or have those meetings open to citizens.

Even Wendy Radcliff, the board's lawyer, a sure champion of public involvement if there ever was one, thought these closed-door meetings would be OK.

When I listened to the meeting tape and heard this, I literally gasped. I immediately contacted Radcliff and board Chairman Ed Snyder to complain. They both promised to look into it.

At the next meeting, Snyder brought up the matter again. After researching the issue a little, Radcliff advised board members to issue public notices and hold meetings in the open.

A couple of board members objected. So did industry representatives. Open meetings and public notices would take too much time, they complained.

This is where things got a little uncomfortable.

There were several environmental group members in the room — you know, representatives of "the public." But they didn't say a word. Nothing. The silence was deafening.

So, I spoke up. I objected to any closed meetings. I explained that the board — and any committees it forms — must announce meeting dates and open those meetings to the public.

One industry lawyer jumped in and said I was wrong. Another industry representative said if I was so concerned about the public knowing when meetings were, I should just list the dates in the paper.

A couple of weeks later, I was vindicated. The state Ethic Commissions Open Meetings Committee ruled that the aluminum committee can't shut out the public.

The environmentalists decided to get involved. Several wrote letters to the ethics panel, urging it to rule for sunshine.

When I say this was a little uncomfortable, here's why: Reporters are supposed to write about meetings, not speak at them.

Standing up and drawing attention to ourselves goes against everything we're taught in journalism school.

For all our talk of the First Amendment and the public's right to know, we in the press are really pretty wimpy when it comes to standing up for those things.

Take Gov. Joe Manchin's "gag order" on state employees.

Most of the statehouse press corps considered it a joke, the mistake of a new administration that would soon be repealed or forgotten by the bureaucracy. I'm sure I'm not the only member of the media who cares about this, but one Manchin official told me that I was the only one who complained.

In the last two months, I've seen what it has done. All around state government are people who now wonder if they're allowed to answer the most basic question from a reporter. Manchin sent a chill through state government that will be slow to fade, if it ever does. Worse yet, the governor has yet to clearly withdraw that policy or issue any concise rules that allow state workers to talk to the press.

When I was at West Virginia University more than a dozen years ago, they didn't teach journalism students about the Freedom of Information Act.

I learned it one summer from reporter Paul Nyden, when I worked at the Gazette. The next semester, I started sending FOIA requests to then-WVU President Neil Bucklew. Bucklew must not have liked it. Pretty soon, they increased the copying cost from 5 to 50 cents a page.

They teach FOIA at WVU now. But it's still not that popular with the administration — at least when a class is assigned to file requests for information about how the university spends its money.

Soon after I came to the Gazette, one of my duties was covering the Kanawha County Commission.

Early on in that assignment, I found out about the "meeting before the meeting," where commissioners decided everything.

I started complaining about that, and even walked into a couple of their private summits.

The late Gary King, then president of the commission, put a stop to all that nonsense. At his insistence, commissioners did everything in public. They stopped planning things out beforehand. They stopped having executive sessions. King even refused to talk to the other commissioners on the phone.

The public portion of the meeting — something that once took maybe 45 minutes at most — turned into a three-hour affair once a week.

Like the EQB meetings, it was kind of painful. But I wondered how many other government agencies have "meetings before the meeting," that reporters don't know about or object to.

I'm still puzzled by such things.

Other reporters complain that such-and-such government official would not give them a document. What FOIA exemption did they claim, I ask? Turns out the reporter never cited the Freedom of Information Act in a letter that might have convinced the tight-fisted government official to comply.

That would take too long and be too much trouble, I'm told.

I'm not talking just about West Virginia's press corps, either. At a conference a couple of years ago, a reporter who covered a national beat for The New York Times admitted to me that she had never, ever filed a request under the Freedom of Information Act. She said she wouldn't know where to start.

There are lots of exceptions. And luckily, many of them are right here in West Virginia.

My Gazette colleague Eric Eyre did some incredibly creative things with FOIA in his reporting on Jerry Mezzatesta. At one point he joked about filing a FOIA request for "all of Jerry Mezzatesta's fake letters."

My all-time favorite might be what West Virginia Public Radio did a few years ago to a Department of Environmental Protection spokesman.

Radio reporters had asked for a copy of a DEP study on how mining and timbering added to flooding. DEP said that the report was a draft, and would only release certain parts of it. The agency blacked out portions of it with the "highlight" function in Microsoft Word, and e-mailed the document to Public Radio. Somebody there figured out what DEP had done, and simply "un-highlighted" those portions of the report.

There are heroes outside of the media as well.

One is Jason Huber, a bit of a throwback, do-gooder of a lawyer here in Charleston. Huber is among the few lawyers who has figured out that, if you sue the government for wrongly withholding information, the government has to cover your legal costs.

One of the most rewarding experiences in my nearly 14 years at the Gazette was when the paper went to court to force into the public eye records from the West Virginia Development Office.

I learned a lot about FOIA during that case, and, thanks to lawyers Pat McGinley and Suzanne Weise, we made some good law. The Legislature later overturned part of our victory, sealing most state records about economic development from public scrutiny. But, part of the ruling still stands to block state officials who claim all of their correspondence with any outside parties is exempt from FOIA release.

In fact, this newspaper, under our legendary late publisher, W.E. Chilton III, brought most of the public records cases in West Virginia. His leadership and his commitment to the public's right to know are why West Virginians can find out about bad doctors and bad lawyers.

But overall, reporters and editors are still far too hesitant to use public records laws and open meeting rules.

We are also way too timid about reporting on the hurdles we encounter.

Editors say this stuff is inside baseball, and often want to leave it out. Do we burden a complex story with even more procedural details about barriers to getting information? Do we shift the focus of a story to our role in getting it, even for a paragraph, when everything we're taught tells us to be observers, not participants?

But, I've always thought that it is important for the public to understand how hard government officials work to keep the people they work for from finding out what they are up to.

Perhaps more importantly, journalists are absolutely afraid to stand up or speak out in favor of government openness. That has to change.

And, I'm happy to say, there is some progress being made.

More than 30 national journalism organizations have banded together as the Coalition of Journalists for Open Government, or CJOG.

The coalition is working to provide timely information about threats to Freedom of Information and to speak out against those threats. The group is supporting efforts to reverse government efforts to gut FOIA in the name of homeland security following the Sept. 11 terrorist attacks. For more information, visit www.cjog.net.

The stalwart organization on such issues has long been The Reporters Committee for Freedom of the Press. Because of its work, no reporter or editor has a good excuse not to understand state public records and open meetings laws. Just visit www.rcfp.org, and scroll down to "Tapping Officials' Secrets" and its state-by-state explanation of the applicable laws.

I'm particularly proud of the work being done by the Society of Environmental Journalists. From our little corner of the journalism world, we have tried to monitor and speak out against efforts to seal off environmental information from reporters and the public. Read about what we've done at www.sej.org/foia/index.htm

And starting today, a collection of journalism groups is sponsoring "Sunshine Week," an effort to educate the public about Freedom of Information issues and threats to citizen access to government. You can read more about it by visiting www.sunshineweek.org. Elsewhere in today's paper, you will find several Associated Press stories that were written as part of this effort. I commend them to you. They are worth reading.

But even as the journalism world tries to come together to explain the importance of public access and fight for it to continue, some of us feel uneasy.

Within the Society of Environmental Journalists, I frequently hear from members who aren't so sure that the group should be taking on this advocacy role. SEJ members take a lot of heat for being the "environmentalist journalist" — a Greenpeace plant in the newsroom — and they are constantly on guard for things that can be used to question their fairness.

To its credit, the AP has pushed its member newspapers to run stories and editorials during Sunshine Week. The AP is spearheading Sunshine Week efforts, along with the American Society of Newspaper Editors and the Radio-Television News Directors Association.

But the AP board of directors has decided that its role will be to foster educational efforts, and not to do direct lobbying on public access matters.

Last May, AP President Tom Curley gave a groundbreaking speech about emerging threats to reporters' rights to information needed to report the news.

Curley, head of the world's largest and oldest news-gathering organization, correctly predicted that some in the media world "believe the role of journalists is to remain strictly impartial, and that express backing for even the best intended legislation would compromise that role."

As Curley said at the time, "I respectfully disagree."

Ken Ward Jr., the Gazette's environmental reporter, is chairman of the Society of Environmental Journalists' First Amendment Task Force.