Reporters Without Borders

United States

Published on Wednesday 29 April 2009. Updated on Wednesday 21 October 2009.
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The House of Representatives backed a proposal for a federal shield law allowing journalists to protect their sources of information. The government of Barack Obama, in a bid to break with the practices of the Bush administration, made promises over public access to official information.

The 111th Congress, which recommenced in January 2009 after the November 2008 elections, has been voting on the federal Free Flow of Information Act that guarantees protection of sources. The bill was passed by the House of Representatives on March 31, 2009 and has also been introduced in the Senate. It is identical to one already approved in October 2007 allows exemptions to protection of sources in the following cases:

  • in a criminal investigation, if “(…) there are reasonable grounds to believe that a crime has occurred; the testimony or document sought “is essential to the investigation or prosecution or to the defense against the prosecution; and (…) in a matter other than a criminal investigation or prosecution (…) essential to the resolution of the matter”;
  • if revealing the source’s identity is necessary to prevent an act of terrorism against the United States or its allies, or in the event of “signficant and articulable harm to the national security”;
  • to prevent a crime or serious harm to persons;
  • to identify a person who has broken a commercial agreement or who holds information which can affect public health;
  • in a case in which “the interest in disclosure clearly outweighs the public interest in gathering and disseminating the information or news.”

This last point has prompted the highest degree of controversy.

These exceptions naturally give rise to criticism. Approval of this bill should put an end to the current absurd situation in which protection of sources is recognized in legislation approved by a majority of states, yet not at the federal level. This shortcoming prompted the jailing of some journalists during George W. Bush’s dual term—a period characterized by the undermining of public freedoms. In the interim, before the Senate votes on the bill, the issue of source confidentiality has placed some members of the press on an ongoing collision course with the courts. David Ashenfelter, of the daily Detroit Free Press, who was taken to court for reporting on irregularities committed by a former federal prosecutor in a terrorism-linked case, faces a fine of $ 5,000 a day until he reveals his informants’ names to the court.

The current Obama administration, which is seeking to break away from the practices of the Bush administration, has disclosed that it intends to take major action concerning the issue of public access to official information. A memo from U.S. Attorney General Eric Holder stipulates that federal departments “should readily and systematically post information online in advance of any public request.” In addition, the agencies should have “the tools they need to respond promptly and efficiently to FOIA requests.” Further, each agency’s Chief FOIA officer must ensure compliance with the law so that whenever documents cannot be released in full, they should be released to the fullest extent possible. Finally, FOIA denials will only be defended if an agency “reasonably foresees that the disclosure would harm an interest protected by one of the statutory exemptions.”

Despite these encouraging developments, the August 2, 2007 murder of Chauncey Bailey, editor of the weekly Oakland Post, remains unpunished, almost two years later. To date, only the alleged gunman who fired the fatal shots is scheduled to appear in court. The person suspected of ordering the killing has yet to be charged. An official investigation has already revealed that he colluded with certain local police officials who were initially in charge of the investigation.

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