To Wash Post: Baby Formula: The Press Was Not There; Press Contacts Were Controlled

Open Letter to the Washington Post: 

I’m questioning the propriety of the press covering what was known about baby formula issues prior to the shortage without talking about the censorship on newsgathering in Food and Drug Administration and elsewhere.

FDA employees, like people in many agencies, are prohibited from talking to reporters without guards from the public information office. Probably most contacts with reporters never happen because of delays or blockages through that permission-to-speak process.

About 27 years ago at least five specialized newsletter reporters walked the agency’s halls getting many stories that were not officially ordained. That kind of networking with employees might very well have brought out the formula issues well before they became a crisis.

Staff who may have seen this problem coming are in effect blocked from getting to know reporters, talking to them informally or, often, talking to them at all.

We in the press like to think that with all our talent, along with contacts with a few insiders who defy the no-talk rules, we get the whole story anyway. We don’t tell the public about this censorship culture which is now pervasive in many U.S. public and private entities. Our silence is shameful and our assumption about how much we know is repeatedly shown to be wrong.

We turn a blind eye to official information control and thereby turn a blind eye to many hazards to children and others.

The extensive legal analysis from The Brechner Center for Freedom of Information finds that these constraints, although very common, are unconstitutional and that many courts have agreed with that. The longer version is a legal brief.

May we talk about this?
Thanks,

Kathryn Foxhall

Resources
--The Society of Professional Journalists has said the controls are censorship and authoritarian.

-- “Editor and Publisher” featured the issue in October 2021.

-- The Yale Law School Access and Accountability Conference last October had a “Fighting Censorship by PIO” session. (The agenda is here and the PIO papers [Foxhall and LoMonte] are here. The video is here, session number 5.)


BCC:
Laura Reiley
Kimberly Kindy
Washington Post Editorial Staff
Senate HELP Committee
House Energy and Commerce Committee
Media Reporters
Health Reporters

American Society of Journalists and Authors

American Society of Media Photographers

News Leaders Association

Associated College Press

Center for Scholastic Journalism
Colorado Press Women
Colorado State University

International Society of Weekly Newspaper Editors
iSolon.org
Media Freedom Foundation and Project Censored
National Association of Black Journalists
National Association of Hispanic Journalists
National Federation of Press Women
National Newspaper Association
National Press Photographers Association

National Writers Union
Native American Journalists Association
North American Agricultural Journalists
OpenTheGovernment.org
Radio Television Digital News Association
Society of American Business Editors and Writers
Society of Environmental Journalists
Society of Professional Journalists
Tully Center for Free Speech at Syracuse University

To Energy + Commerce Re: Baby Formula Shortage: FDA Kicked the Press Out about Years Ago

The following letter went to the House of Representatives Energy and Commerce Committee: 

Chairman Pallone:

Regarding the baby formula shortage and what was known about circumstances at FDA: the controls on news reporting at the agency have become extreme over a long time. It is not realistic to expect that problematic situations will not develop and fester when governmental agencies heavily restrict public scrutiny of themselves.

Over the last two to three decades, many agencies, businesses and other institutions have instituted policies banning employees (and sometimes others) from speaking to reporters without oversight by authorities, often through public information officers. These restrictions prohibit all contacts not overseen by authorities, even though confidential conversations are so often critical to the public’s understanding.

Also, in reality, the system works so that a huge portion of contacts between reporters and staff is blocked altogether.

A number of journalism organizations have worked opposing these controls for a long time. I work with the Society of Professional Journalists and others on the issue.

I would like to talk to your staff about this.....
Please note also:

--Last July, 25 journalism and other groups wrote to the Office of Science and Technology Policy asking that the blockages be ended and that reporters be given credentials to enter facilities. It was one of numerous efforts over the years. We have not received any substantial response despite several follow-up contacts with OSTP.

--Importantly, an extensive legal analysis from The Brechner Center for Freedom of Information finds that these mandates for reporters to go through PIOs, although very common, are unconstitutional and that many courts have agreed. (The longer version is this law journal article.)

---SPJ sponsored seven surveys (2012 to 2016) that showed the censorship is pervasive in federal, state, and local government, education, government science agencies and police departments (see some summaries below).

---Journalism groups recently published a letter in Science magazine on this issue: Scientists’ right to speak to the press (science.org).

We don’t know about FDA but apparently contacts with the press for all or most of HHS must go through one small office, the Assistant Secretary of Public Affairs. Thus, a very few people under heavy conflict of interest and political pressure decide what all of us can hear about agencies’ workings.

As Covid deaths began to mount in 2020, an official told CDC media relations staff that just because individual reporters persist in asking to speak to someone, doesn’t mean they are allowed to.

Probably the top reason for media organizations’ silence about the controls is their long-time work ethic and strong financial incentive to assume--and to convince their audience--that good reporters get the story anyway. It’s more likely the press gets some stories and assumes what we get is all there is.

In addition, journalists fear, with good reason, that PIOs and other powers will block whatever access reporters have if they complain.

There are other resources below. I’d be happy to talk to anyone about this.

Kathryn Foxhall

U.S. Department of Health and Human Services Staff Contact Information Disappears

The Department of Health and Human Services employee directory, which has been online for many years, has suddenly lost email and telephone listings. Names and professional positions are there, but there is no way to make connections.

I emailed five public affairs officers asking whether it is fair to say that the lack of an HHS directory with contact information is unprecedented, since even before the internet anyone could buy an HHS directory at the Government Printing Office.

I also asked if it is fair to say that no contact information is listed on the HHS website for public affairs contacts, other than the media@hhs.gov.

I wrote to HHS Secretary Xavier Becerra saying this elimination of contacts would appear to be another step in the direction of information control that has included banning employees from speaking to reporters without notifying agency authorities and indicating to staff that they have no responsibility to speak the press.

One report said told the employee directory change was done in the name of security.

I told Becerra, “Security is not best served with one of the largest government agencies in the world broadly impacting public health from behind nearly impenetrable walls of restrictions with unreachable, unknowable people.

“I’m asking that all these barriers be removed. Note that many journalism groups have asked the same about the previously instituted restrictions.”

I have not had an answer yet.

Teachers’ Union President: Barriers to Talking Are Maybe Not Putin, But They are Very Dangerous

FYI to readers:

This is a story picked up from last month, but the points are still good.

You would not compare the bans on employees speaking to the press to Russia’s Vladimir Putin, because Putin is a murderer, said Randi Weingarten, president of the American Federation of Teachers, AFL-CIO, of the largest teachers’ unions.

“But the roots of it are very dangerous. The roots are basically saying, ‘We’re going to stop people from giving real, accurate, truthful information about conditions about public good….’”

Weingarten, who spoke at a Sunshine Week online session sponsored by the Society of Professional Journalists and the National Press Club, was pointing specifically to the order the Philadelphia School Board has considered that would prohibit employees from speaking to the press without express permission from the district.

She said, “Public education is a public good. The public is entitled to know what’s going on. Teachers should be able to say what’s going on. There should not be this censorship about this.”

Weingarten also told the audience that if a school or district refuses to allow a reporter to speak to an employee, it’s indeed possible that the union can help getting the two together.

On the legal side of that question, First Amendment Attorney Frank LoMonte said, journalists should know from the start that a public school or university is a government agency and, “The Supreme Court has said over and over again public employees do not check their First Amendment rights at the door when they sign on to a government job and that applies to teachers or principals or coaches or anybody in public school.”

“And so, these pervasive policies, which we see at all levels of government, including education, that restrict employees from being able to talk without permission, they’re all against the law,” LoMonte said. He is former director of the Brechner Center for Freedom of Expression and has recently become counsel for CNN.

Delece Smith-Barrow, education reporter at Politico, said, “One thing that journalists face so often is not being able to get the information that they want, or get access to someone who has the information that they need, and it’s not that we need it personally, it’s that news consumers need it.”

Some of the blockage, she said, “Can look like slow or no response to a FOIA request….Maybe they’re a principal, an administrator that is central to your story who you need to reach and you’re being told by the school district that person can’t speak with you.”

Eva-Marie Ayala, the Education Lab editor for The Dallas Morning News, described reaching out to an employee in a local agency and having a public relations person get back, really upset, and saying the reporter was being nefarious to go around the PR office.

“And you know, that is our job,” Ayala said. If a reporter is going to name someone in the paper, perhaps when there is an allegation against them, the journalist has a duty to go above and beyond to reach out to the person and get their side of the story, she stated.

Ayala also said some school boards have policies that only one person on the board, typically the school board president, should speak to the press. She said, “These school board members are elected by the public. They don’t elect one person or the whole board. They individually elect the school board trustees to speak. We reach out to them as needed. If they decline to comment, we put that in there. Again, it is all about transparency.”

Ayala said one of her pet peeves, which she gets all the time, is the request to send her questions in advance when she asks for an interview. She says she replies that she usually doesn’t share questions in advance, but she might outline some of the topics she is interested in. That’s because, the interviewee typically will say something that causes the reporter to ask a different question, and that will trigger another response from the source person.

“And, so it’s a conversation. It’s not just a one-way street.”

Further reporting on the panel is on the NPC website.

Six Million Pandemic Dead; HHS Staff Still Banned from Speaking to Reporters without Minders

The following letter went to Xavier Becerra, Secretary of the Department of Health and Human Services, March 18.

Secretary Becerra:

This is a question for the news conference planned for tomorrow. It’s being copied to 1000 plus health reporters.

Over several presidential administrations bans on HHS employees speaking to reporters without notification of the authorities have been implemented and have grown progressively tighter.

Among other things, in the years prior to the pandemic CDC blocked and limited reporters, with decisions made behind closed doors about who could talk to which reporter and what could be said.

Now we have six million dead globally and the blockages on reporters continue.

---Why is it ethical for HHS to prohibit all contacts between reporters and staff unless they are overseen by PIOs or others?
---Why is it ethical for HHS to block the information that reporters would get from those staff members who the agency successfully intimidates from telling reporters things because of the oversight or the total blockages?

---Why is it safe for the public for reporting to be under such controls? Even in light of all the problems with free speech, why is it safer for information flow to be under the control of a few people in power with their own conflicts of interest?

I’m respectfully requesting an honest discussion and not general answers like “HHS is very open” or “We put out a lot of information.”

Below is a letter opposing the controls sent by journalism groups to the Office of Science and Technology Policy, as well as other resources.

Please note, also below, that an extensive analysis by the Brechner Center for Freedom of Information says these requirements for reporters to always go through PIOs is illegal.

Thanks for your attention.

I’d be happy to talk to anyone at most anytime.

Kathryn Foxhall

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Resources


---A letter from freedom of information officers of the Society of Professional Journalists and Society of Environmental Journalists went to the Office of Science and Technology Policy decrying the recent scientific integrity report that endorsed these restrictions. We said the policy, “not only violates the scientists’ First Amendment rights, it tramples on the public’s right to know, and it contributes to the spread of misinformation and distrust in government.”

---Last July, 25 journalism and other groups wrote to OSTP asking that the blockages be ended and that reporters be given credentials to enter facilities.
---Please note in particular that The Brechner Center for Freedom of Information has an extensive legal analysis that finds these rules, although very common, are unconstitutional and many courts have agreed with that. It also says that journalism organizations, themselves, could sue to stop the blockages.
--Yale Law School’s recent conference on access included “Censorship by PIO.”
--The Society of Professional Journalists has said the controls are censorship and authoritarian.
--SPJ has sponsored surveys showing the restraints in federal, state, and local government, education, government science agencies and police departments.
--A recent webinar, “The Gagging of America,” from the Society for Advancing Business Editing and Writing, has a discussion of blockages in both the public and private sector.

For Sunshine Week: Controls that Have Become the Norm; No Answer from Biden Science Office

INDIANAPOLIS – Editor’s Note: The following column was written by Kathryn Foxhall, Society of Professional Journalists Freedom of Information Committee vice chair, for Sunshine Week.

Last year, 25 groups wrote to President Joe Biden’s administration saying journalists’ jobs are intentionally hindered by the government in many ways. These include, as we wrote, “barring government scientists, issue specialists and other government employees from communicating directly with reporters and even refusing to allow interviews of such scientists or specialists, even with oversight by a public information officer.”

Addressed to the President’s Office of Science and Technology Policy, the letter was signed on by groups including the Society of Professional Journalists, the National Newspaper Association, the Society for Environmental Journalists and the National Association of Black Journalists.

The issue is far from new, of course. Over the past three decades the forced monitoring and blocking of journalists has become tighter and tighter. Some journalists say one presidential administration learns from the last and then builds the controls stronger.

Foundational to the restrictions is the message that agencies or offices give to the employees — written or otherwise — that they may never speak to a journalist without monitoring from the bosses, often through public information offices.

This means that when a reporter contacts a staff member at the Centers for Disease Control and Prevention or the Food and Drug Administration, that person will usually tell the reporter they have to go through the PIOs. From there, officials decide behind closed doors whether there will be an answer at all, who can speak and what can be said.

A comprehensive analysis from the Brechner Center for Freedom of Information found that existing controls are unconstitutional violations of the First Amendment.

Last spring the Washington, D.C., chapter of SPJ wrote to CDC Director Dr. Rochelle Walensky, saying the “restrictions on staff speaking to reporters without notifying authorities amount to a human rights abuse, withholding critical perspective from the public and from health professionals.”

Walensky responded, “CDC scientists and researchers communicate with members of the press about their work. However, CDC experts are working scientists and are not always available for interviews. Our press officers serve as points of contact for news media to provide relevant background information and to ensure questions are answered in a timely manner.”

With reporters’ access pretty well controlled through that choke point, leaders can also make briefings few and far between, without fear reporters will get around them.

Journalists get stories, of course. Sometimes we take what officials hand to us or interviews they allow under monitors. Sometimes we fill an article out with comments from outside sources. Sometimes insiders defy the rules and talk to us without reporting to the authorities.

However, with up to several thousand people in an institution prohibited to speak, or prohibited to speak without minders, it’s impossible that we know enough about issues critical to the public.

Two years into the COVID-19 pandemic, The New York Times reported that CDC was not releasing all the data it has on COVID. Perhaps reporters should have been in the buildings getting to know staff people, chatting with them normally.

Meanwhile, the controls have become somewhat of a societal norm. Many government entities on the federal, state and local level, businesses and nonprofit organizations put the no-talking-to-the-press rules on employees.

There are many reasons these controls have happened, including reporters rushing to get a story; journalists believing what they get is the story, rather than a limited piece of the overall context; and officials legitimately fearing something will blow up on them, sometimes before they know about it themselves.

However, there is also a great deal of manipulation of information to serve political or other purposes.
As Russia is so profusely illustrating for us, information control by people in power is not just wrong, it’s one of the most corrosive and deadly forces in human existence.

In January, the Office of Science and Technology Policy published the scientific integrity report for the Biden administration, which basically endorsed press control policies as they have existed for years.

Freedom of information officers from SPJ and SEJ wrote to the OSTP, saying the gatekeeping process “has slowed and effectively constricted the flow of information to journalists. The public is instead often fed a steady diet of curated information and official ‘talking points’ designed to support the agency’s position.”

Seven months after the original letter, and with the exception of acknowledgement emails, OSTP has not answered any of the groups’ correspondence.

Why Is It Safe to Ban Federal Employees from Speaking to the Press with Monitoring?

Why is it safe for the federal government to have the current rules against employees speaking to the press without monitoring?

Is there any reason to think the rules serve the public better than free speech protections?

I sent a petition to the Biden Administration's Office of Science and Technology this week, asking their leadership to examine those questions before they simply follow the policies set by previous administrations.

Excerpts from the petition are below.

Dr. Alondra R. Nelson
Office of Science and Technology Policy

Dr. Francis Collins
Office of Science and Technology Policy

Dr. Nelson and Dr. Collins:

....

Journalism organizations have written to you objecting to the Office of Science and Technology Policy’s endorsement of the restrictions.

I’m petitioning OSTP to look objectively at the rules and questions around them, rather than just assert that federal agencies and others are allowed to implement them, as has happened with the recent scientific integrity report and other policies. I’m asking for researched answers on this drastic shift in information flow to the public, not simply opinion or declarations of rights for people in leadership.

Below is the full list of questions I am asking OSTP to examine, with discussion.

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--Why is it safe for the federal government to have the current rules against employees speaking to the press without monitoring? On occasion some employees defy the rules, talk to journalists without the monitoring and bring us critical information. The fraud and poor regulation in generic drug industry was brought out in the book, “Bottle of Lies,” which author Katherine Eban said took 10 years to write because of the muzzling of government scientists. Why do we expect such abridgement of speech not to hide things?

--Is there any reason to think the rules serve the public better than free speech protections? Government leaders often cite facts such as a person not chosen by officials might say the wrong thing. That is completely true, but does not answer why controls on what so many people can say by a few people in leadership will lead to better outcomes overall.

--When and how did these restraints come about? A number of journalists remember first encountering them in the late 1980s or the 1990s, apparently as the public relations profession expanded. What do we know about their history and why they were adopted? Was there ever any public discussion or debate?

--Were they instrumental in hiding problems that resulted in a pandemic worse than it had to be? The CDC and FDA are sources of numerous complaints of blockages even after reporters ask permission to speak from public information offices.

--Why are they constitutional? The extensive legal analysis from The Brechner Center for Freedom of Information finds that these rules, although very common, are unconstitutional and that many courts have agreed with that. The longer version is a legal brief.

--Given the policies’ pervasiveness, have they moved us toward an authoritarian or otherwise unfree society? The Bureau of the Census and the Federal Communications Commission have these policies. Would they be used to keep an administration or political party in power?

Resources

--Yale Law School’s recent conference on access included “Censorship by PIO.”

--Attached to this email are excerpts from an interview with an FDA newsletter editor who used to report by walking the halls of FDA.

--The Society of Professional Journalists has said the controls are censorship and authoritarian.

--The Society of Professional Journalists has sponsored surveys showing the restraints are pervasive in federal, state, and local government, education, government science agencies and police departments.

--A recent webinar, “The Gagging of America,” from the Society for Advancing Business Editing and Writing, has a discussion with First Amendment Attorney Frank LoMonte on blockages in both the public and private sector.

--Last July, 25 journalism and other groups wrote to OSTP asking that the blockages be ended and that reporters be given credentials to enter facilities.

--Last year the Biden administration’s Environmental Protection Agency affirmed that it would continue these controls.

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Summaries of SPJ Surveys

SPJ sponsored seven surveys (2012 to 2016) that showed the censorship is pervasive in federal, state, and local government, education, government science agencies and police departments. Seven of 10 federal-level journalists said they consider the government controls over who they interview a form of censorship. Forty percent of federal PIOs admit to blocking specific reporters because of past “problems” with their stories. Seventy-eight percent of political and general assignment reporters at the state and local level say the public is not getting the information it needs because of barriers to reporting.

Fifty-six percent of police reporters said rarely or never can they interview police officers without involving a PIO. Asked why they monitor interviews, some police PIOs said things like: “To ensure the interviews stay within the parameters that we want.”

Almost half of science writers said they were blocked from interviewing agency employees in a timely manner at least sometimes. Fifty-seven percent said the public is not getting all the information it needs because of barriers to reporting.