Access based on background

From the Fall 2002 issue of The News Media & The Law, page 46.

By Alicia Upano

Caught in the crux of post-September 11 measures that have tightened security at airports, federal agencies, state capitols and local police offices, some journalists face new security policies. In one instance, a never-implemented, decades-old ordinance was revived. As a result, some journalists must disclose personal information and clear background checks in order to retain access to news events.

For White House correspondents and Los Angeles police reporters, background checks have always been a part of the job. Other reporters, however, say that criminal background checks of reporters gives the government one more reason to refuse media access. They worry that the new policies may infringe on their First Amendment, due process and equal protection rights. With background checks in place, they fear that licensure could be next.

Chicago Police dust off old rules

In an attempt to increase security earlier this year, the Chicago Police Department announced that reporters applying for their annual press credentials, usually a simple process, would be fingerprinted and undergo a criminal background check after police decided to enforce a decades-old ordinance that had never been used, the Chicago Headline Club reported.

The Headline Club, which is the local chapter of the Society of Professional Journalists, opposed the renewed credential process. Headline Club President and Chicago Tribune reporter Christine Tatum questioned the possible invasion of privacy to the individual and the chilling effect on the industry as a whole.

“While the Headline Club supports the idea of accrediting the media, we question the City of Chicago’s right to determine who is a journalist,” Tatum wrote in a letter to Chicago Mayor Richard M. Daley.

The fear is that crimes and infractions that clearly do not affect reporters’ abilities to do their job, such as a driving under the influence of alcohol charge, may be used against them. Tatum said the police department has not provided details about how the policy will be implemented.

“Anytime you get a government agency saying, ‘This journalist worries us. Here’s the reason why this journalist can’t come in,’ . . . this is a huge problem,” Tatum said.

Chicago Police Department Director of News Affairs David J. Bayless said the department is only interested in scanning the fingerprints through a statewide database to check for outstanding warrants and child sex offenses. If anything suspicious is found, the reporter will be notified and called in to discuss the situation so the department may determine whether to issue the credential. The reporter’s news organization will not be notified, he said.

Another concern is the timeliness of the ordinance, which is so old it mentions “newsreels” and does not include modern-day media such as television, cable or online journalism, or part-time or freelance journalists.

“It doesn’t matter how timely (the ordinance) is,” Bayless said. “Just because the wording doesn’t include them, doesn’t mean they’re not included.”

Although new media are not included in the ordinance passed by the city, the department’s media guidelines issued late August include Internet news services, discussion groups and other forums. According to Bayless, the department heeds both the city’s ordinance and the department’s guidelines.

Bayless emphasized the need to adhere to the ordinance for security measures as police press credentials allow media access to the city hall press room, the department headquarters press area and crime scenes.

“After 9-11, the entire Chicago Police Department had to look at what it had to do differently,” Bayless said.

While the Headline Club’s formal position is not the opinion of all Chicago journalists, Tatum said the danger lies in placing personal information into the hands of the very people they cover. She said that news organizations should be responsible for performing background checks on their employees and vouching for the people they send to a scene.

Although the Chicago Police Department plans to go ahead with the renewed credential process, the department is still waiting for the proper equipment to take digital photos and issue a pass on credit card stock rather than the laminated paper passes they previously issued. Bayless said tightened security across the nation has put the high-demand equipment on back order. For now, he said, police will continue to recognize last year’s passes.

The Headline Club continues to discourage journalists from complying with the ordinance.

“If you have some people conceding to the background checks and some people not, what kind of message does that send?” Tatum asked. “It’s either right or wrong.”

Alternatives in Omaha

The Chicago Headline Club has looked to the Omaha Police Department’s decision as an alternative to how background checks could be handled.

When faced with a similar policy in Omaha, reporters and police reached a compromise. In November 2001, Omaha Police Chief Donald Carey proposed background checks and fingerprinting for journalists entering police headquarters but dropped the proposal in December after meeting with strong opposition from the press.

The presence of sensitive documents in the building, such as criminal records and intelligence information, sparked concern as to the backgrounds of those who had access to the building, Omaha Police Department spokesperson Sgt. Dan Cisar said. Because members of the media are the only people other than law enforcement who enter headquarters daily, he said the department wanted to know if any members of the press had alarming criminal backgrounds.

Nearly all Omaha news organizations dissented, Cisar said.

The department met with the press to discuss the new policy, and decided to allow the news organization to perform background checks on their reporters and inform the police of who was eligible for a press credential, Cisar said.

“The local media was not suspects in terrorism. In other words, we couldn’t label them as someone who would harm our building,” Cisar said.

Cisar said the department also heightened security in the building by escorting the media while in the building, installing cameras and outside barriers.

Capitol credentialing in Pennsylvania

In another effort to protect an official building, the Pennsylvania Department of General Services took steps to heighten security at the state capitol in September. The department began issuing credentials to the capitol press corps, many of whom had been there for years.

Media had previously enjoyed unfettered access at the capitol using press credentials issued by the state senate. But the department, charged with protecting the building, proposed to issue a press credential to serve as an access card to the capitol. DGS Secretary Samantha Elliot said that everyone who wants a permanent access card must clear a criminal background check.

“I don’t like government dictating policy to a free media. If anyone should be dictating, it should be our employers, not the people we’re covering,” said John Baer, Pennsylvania Legislative Correspondents Association president and reporter for the Philadelphia Daily News.

With the help of attorney Amy Ginensky, of the Philadelphia-based Dechert law firm, PLCA met with the governor’s chief of staff in September and they settled on a proposal that was previously deemed unacceptable by the DGS, Baer said.

Capitol press corp members now have three options. First, reporters can adhere to the original DGS policy, submit a background check at their own expense and be approved by the state for a press credential. Second, reporters’ employers can review their background checks to verify that they are eligible for a pass. Third, reporters can refuse background checks, but go through public security checkpoints with valid identification.

Ginensky said police provided the capitol press corps with a list of irrelevant and relevant crimes so that employers may gauge what activity indicates a security risk. Irrelevant crimes include library theft, bad checks, insurance fraud, prostitution and driving under the influence of alcohol. The relevant crimes include murder, aggravated assault, “propulsion of missiles into an occupied vehicle or onto a roadway” and terrorist threats.

“It’s important that while there are security issues lurking, that protecting those interests doesn’t become so prominent that other important rights like First Amendment [and] due process are ignored,” Ginensky said.

She added that in such cases there are alternatives, as in the Pennsylvania case, to serving both the government’s security interest and theconstitutional interests of the press “without necessarily encroaching on civil rights.”

Routine checks

In other places around the country, reporters are used to background checks.

“You just do it, it’s a routine out here,” said Los Angeles Times reporter and SPJ California Project Sunshine Chair Dan Weikel. “I haven’t heard any complaints.”

Yet Weikel said he can understand reporters’ concerns about releasing personal information, and opts for only providing corporate addresses and phone numbers. Although a reporter may only provide professional information, personal information is still accessible at a local department of motor vehicles, he said.

Weikel, Tatum and Baer all recognize how any determined person can get background information on a reporter.

Reporters realize their own tricks for finding information may very well be used on them. Baer said it takes little more than a name, birth date and $10 to get a criminal background check in Pennsylvania. Weikel said a person can take basic personal information to run searches on criminal databases to find any criminal charges.

But to the LAPD Media Press Pass Coordinator Brenda Benton, issuing press credentials is serious business. All requests for press passes go through Benton, who reviews letters (on original letterhead, signed by a news director or editor) and if she finds that they qualify for a credential, she sets an appointment.

All forms are filled out in front of Benton, she said. The paperwork asks a multitude of personal questions, covering everything from physical attributes to residence. The fingerprints must pass Department of Justice and Federal Bureau of Investigation clearance and can take up to three months.

The LAPD has required background checks for nearly 50 years because “people started showing up at crime scenes and they didn’t know who was who,” Benton said. The passes are meant to identify legitimate members of the press and not necessarily to look into their criminal history.

Most reporters who are “not an ax murderer or have a warrant” receive passes, she added.

Although press credentials are issued to give reporters access to crime scenes, police headquarters and particular press rooms, several reporters said they rarely use their credential. Although there has yet to be any known complaint of reporters being denied access due to their criminal history, the fear remains that backgrounding may be the first step toward the government deciding who is and who is not a journalist.

“No one should be able to pass on the credentials for expressing words and views in publications,” said Philadelphia attorney Ginensky. “The government should not choose who covers them unless we’re going to get rid of the First Amendment.”