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2007 FOI Summit Keynote Addressby James NeffHead of Investigative Projects, The Seattle Times
As you’ve been hearing this morning, our government has been prodigiously producing new secrets. You add this to the anxieties of a Post-9/11 nation, and the challenges of guaranteeing an open society seem daunting.
There are some in our government who seem to believe that secrecy is a civic virtue. Only weeks after taking office, the president, as a first order of business, issued an executive order that halted the release of 68,000 pages of documents at the Reagan Presidential Library—just before the 12-year release date tolled. Later that year, with an executive order that some believe unconstitutional, the President added a layer of executive review and delay to the release of presidential documents. As Tom Blanton has written, this has added another five years in delays. This is not virtuous conduct. Free flow of information is the lifeblood of a free country. Constricting the flow results in infarcted government, anemic political institutions and makes a mockery of our founding principles of self-government. With a far freer flow of information, might we not have gone to war in 2003? With a far freer flow of information, might we not have been prepared for its aftermath? Don’t misunderstand. This is not a matter of red versus blue. Conservatives desire a government that does not exceed its legitimate authority. Liberals desire a government that is accountable and responsive to the needs of the public. Secrecy thwarts both of those desires. Freedom of information is not and should not be a fight between political points of view. All is not discouraging, as many of you know from your own fights in what I refer to as “The Openness Movement.” I was privileged to take part in a success story. One that reminds me that determination and hard work can make a difference. This success story is an unusual investigative project by The Seattle Times called “Your Courts, Their Secrets.” This series of stories, which appeared throughout 2006 in our newspaper, revealed how judges in our state’s largest county had illegally sealed hundreds of civil cases—entirely sealed!—violating their own rules, case law and the state constitution. This wholesale secrecy depriving the public of vital information about problems in public safety, health care, the courts, business, government and schools. Those hidden problems included: sexual abuse by non-profit caregivers; defective medical devices; unscrupulous guardians for the elderly; malpractice or misconduct by doctors, lawyers and police. How we ultimately uncovered these stories is a story in itself. It started with a question by investigative reporter Ken Armstrong, who specializes in legal investigations. He had heard from beat reporters about entirely sealed files. Why? How could that be? The Clerk’s office said it had no list of sealed cases. Judge Bill Downing, an advocate for openness, said he’d be surprised if there were more than a handful. How then to find out which ones were sealed? We fashioned an innovative database reporting effort, using the skills of reporter Justin Mayo and the electronic records of the Administrative Office of the Courts in Olympia, which houses a statewide database of dockets from all the state’s counties. He fashioned a query with codes that indicated secrecy as well as wild card searches on terms such as “sealed,” “confidential,” and “secret.” And late at night on mainframe computers, the court’s IT supervisor, for a small fee, ran these searches through tens of millions of records in the statewide court-docket system. This swept up thousands of potentially sealed cases. Then they were winnowed. We had to strip out false hits such as Secret Desires video store or Industrial Sealant. That brought us down to about two thousand cases in King County. Then the reporters went to the county courthouse’s public terminal and typed in the case numbers, one by one. Up popped access denied, indicating cases that were entirely sealed. Ken and Justin also scoured the rows of shelved files, looking for bright place holders that indicated where a file had been removed and moved to a secure room. In all, they found 420 cases that had been completely sealed. They knew the parties’ names, but little else. So, we ran more than 1,000 names against lists of teachers, doctors, police officers, business executives and other professions. They searched clips, Lexis Nexis, the Internet. They pulled the sealing order in each case, no small task, to see who granted secrecy, and why. This all took a year and a half. What we discovered was that nearly every file had been sealed improperly. The judge or commissioner did not find compelling circumstances, weigh those against the public’s interest in open courts or explain the order. We met with the three top administrative judges to see about opening the files. They were surprised at what we found, but reacted in a way just as we had hoped. They would clean up the problem, alert the parties, and give them a month to argue for the parts that narrowly and legally could be withheld. Otherwise, the files would be unsealed. It was pouring rain when we left the courthouse, as we sat in Starbucks, drinking coffee waiting for the rain to subside, we felt a kind of euphoria. The files would be opened. We’d reveal a hidden history of our city, alerting people to things they needed to know about schools, public agencies, companies, the doctors and lawyers who touched their lives. Well…our euphoria soon faded. Instead of fixing their own problem at their next monthly meeting, a majority of the judges spurned their leadership and voted to force The Times to file formal motions to unseal. They hadn’t followed the rules to seal, but now The Times had to follow the rules to unseal. This posed a dilemma: we had our findings—420 illegally sealed files about things you needed to know about—but had nothing from the files to tell the story. We only had half the story. We decided to publish an initial story, laying out the problem. And then we went to court, doing a massive lawyer-assisted reporting project, using the talents and determination of Davis Wright Tremaine, our longtime partner in such battles. We fought to open 40 cases, picking those that appeared to hold the most public interest—cases in which schools, public agencies, hospitals and the like were parties. The legal battles took months and cost a bundle, but they were worth it. Eventually we unsealed 37 cases. But again, this was just one more step. In the meantime, the reporters had made dozens of public-disclosure requests in cases involving public agencies or that touched government institutions, and conducted scores of interviews. We also expanded our reporting across the state, where we found 398 totally sealed guardianship cases and, in one neighboring area county alone, 385 sealed domestic-violence cases—many of them involving law enforcement officers. The result was 15 investigative stories that exposed problems all across our community and illustrated the importance of public access to court records. I hope you get a chance to read or re-read these stories. The beauty of the series was the visceral, concrete nature of the stories. People rarely appreciate something that can be understood only in the abstract—concepts such as open records, transparent government and “accountability.” What better way to drive these concepts home than with stories built from shoe leather reporting and once-hidden files and lawyer-assisted reporting? One example: a high-powered nonprofit that operates group homes for the state had a pattern of failing to do background checks on new employees and instead put unsafe, violent workers in charge of vulnerable children. Warnings from a state employee about this were overlooked or ignored. As you might have feared, a teenaged girl was raped by an unscreened worker with a violent past. She sued the nonprofit and the state. But the public didn’t hear about this story for two years. Meanwhile, there was no pressure on state or the nonprofit to reform. A judge had sealed the entire file. In his sealing order, he wrote that the lawsuit “demonstrates unfavorable facts” about both the state and the company, and should hidden away “to protect all the parties from embarrassment.” We don’t have an “embarrassment” exemption in our state. Another gripping example: a pregnant, diabetic woman asleep in her apartment went into an insulin coma from an overdose of insulin. What her blood and brain desperately needed was not insulin but sugar. But the medical device she’d just recently received instead kept pumping insulin into her body, starving her brain and making it more unlikely that she would ever wake up. Her husband in the military was on an aircraft carrier, halfway round the world. Relatives were calling her but getting no answer. The pump had a safety feature designed to stop the insulin flow in emergencies like this. But the feature wasn’t on. The pump had been shipped to the woman with the option turned off, and the device’s instructional video devoted only 15 seconds to it, saying nothing about why the feature should be used. Nor did the woman’s medical provider turn on the safety switch. Ultimately she suffered severe and permanent brain damage. Her family sued Medtronic Inc., alleging the pump was unsafe. Medtronic had already sold 150,000 pumps in the United States. Now, what happened to this woman could have yielded insight into the pump’s design and instructions. It could have alerted patients and health-care providers to the importance of this safety feature. But Medtronic asked the judge to seal the entire file. The judge didn’t weigh the public interest in open courts and ignored case law—and sealed the entire file. As we learned after getting the file opened, the company did not report this adverse event to the FDA, as required. A final example: Over more than a decade, four school principals in suburban Seattle received numerous complaints that a teacher was fondling girls. But they failed to do anything about it. After one complaint, a principal sent the offender a pamphlet on the district policy on touching or hugging students and said, “You may want to look at it.” Three families sued. The school district settled—but secretly. The agreement ordered documents destroyed, computer records purged, court records sealed. The secrecy agreement silenced the victims and even restricted what they could tell any therapist. Again, secrecy thwarted any chance for reform. By the way, the teacher later was convicted of assaulting the students. The impact of “Your Courts, Their Secrets” could hardly have been more dramatic. King County judges here stopped sealing cases. We did another computer run at the end of last year—zero files sealed in their entirety. In other counties, judges on their own are opening hundreds of improperly sealed files. New rules now protect access in state courts and in the federal courts in Western Washington. As a court commissioner put it not too long ago while refusing to seal a settlement agreement: “It’s a new day.” I hope you will look in your courts system to see if judges in your areas are illegally sealing entire court files. We are proud of these reforms. But we don’t really have the luxury of resting on laurels. This focus on openness has sensitized us to an issue, a growing danger—one that many of you likely have confronted—closing off public records under the guise of protecting the public from identity theft. Against all the evidence, some people think that public records, especially those stored electronically and holding dates of birth, put them at great risk for fraud. And some governments have reacted without thinking to the hysteria and created more secrecy. In Snohomish County, just north of Seattle, the auditor recently closed off online access to 61 types of documents, including marriage certificates, tax liens, divorces and death certificates, because these public records might contain dates of birth, mother’s maiden name and the like. The auditor explained: “There is a public perception that individuals are getting this information from our web site and then committing identity theft.” The auditor said no one had been the victim of the crime as a result of the online documents, but access was shut down nonetheless. In other words: There is no evidence of identity fraud but people feel that there is, so public servants create more secrecy. So “feelings” trump public interest. There is not one case in Washington that we could find of public record release resulting in identity fraud. That’s not how it works. I do understand the feeling. Fear of the new, especially fear of new, little-understood technology, is familiar theme to historians. I’ve heard that when Xerox machines made copying court records cheap and easy, there was fear that unscrupulous people could flimflam the unsophisticated using court papers, posing as lawyers or officers of the court. We in the news media are partly to blame for the hysteria. We trumpeted every theft of laptops with payroll or personal information, tallying up the numbers of personal records in each incident. But we rarely followed up to see if financial harm occurred to anyone as result of the laptop loss. A story in the New York Times several months ago reveals that in almost all cases, no credit fraud resulted from loss of these laptops, let alone full-blown identity theft Identity fraud is a phony issue, and if restrictionists shape the dialogue, sooner or later the public will be closed off from public records that we need to see how its government conducts the people’s business. More than two centuries ago, newer technologies and loosened controls led to changes that in the marketplace of information and speech that upset some. Pamphleteers in our new nation benefited from advances in printing presses, papermaking, a postal system. There was an explosion of voices and free expression. It was messy. It lead to duels between men who felt their reputations were so publicly sullied that they had to act. But many many decades later, we ended up with the modern newspaper, which has looked very much the same over the past century. Likewise, the Internet and the “low cost of entry” makes everyone a pamphleteer. The technology makes it easier to access public information—and easier to close it off. This not the time to panic and close off information just because so many others, for the first time, can obtain public records so easily on the Internet. We journalists, online and print, enjoy a version of a true American dream: free people exercising free speech and free press rights in a democracy—a good and powerful force. As long as information flows freely, then today’s feisty press, from bloggers to the mainstream media, will soon enough, like the pamphleteers and the penny press, coalesce into something stable and lasting, pumping life into our open society. Meanwhile, we cannot ignore the right of every American citizen to see how its government, be it courts or White House, conducts the people’s business. We need to ask questions and put the answers out there—in the clear, effective, powerful way that you know how to do. Put those answers out there…in the light of day. Who can oppose that? Who can honestly oppose that? Thank you. James Neff, a prize-winning journalist and editor, is the author of the critically acclaimed The Wrong Man: The Final Verdict on the Dr. Sam Sheppard Murder Case (Random House). Neff has written four books, one of which, Mobbed Up, was adapted as the HBO movie, Teamster Boss. He is a past president of Investigative Reporters and Editors, a 4,500-member nonprofit organization that trains journalists worldwide. Since 2001, he has been the investigations editor at The Seattle Times. Three projects he edited or wrote have been named finalists for the Pulitzer Prize. |
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I've been talking to a lot of you at panels and at this reception—you are a feisty passionate bunch. I salute you and I salute your energy and your dedication to the cause of unleashing information the public needs .... to govern .... to make the choices that enrich us all. I am honored to be talking to you today.