In Baltimore, a tale of two transparencies

Photo: Police in riot gear return to a staging area after lining up to enforce a curfew imposed in the aftermath of rioting following Monday's funeral for Freddie Gray, who died in police custody, Friday, May 1, 2015, in Baltimore. (AP)

In the aftermath of Freddie Gray’s death from a spinal injury sustained while in the custody of Baltimore police officers, the department did something unusual: It allowed a reporter for The Baltimore Sun to observe the work of the task force investigating Gray’s death.

At the same time, a more common scenario was playing out: A coalition of news organizations demanding that police respond to requests for records related to the Gray case was being stonewalled.

The two events make for an interesting case study to examine not only the authorities’ legal bases for withholding information regarding a matter of public concern, but also the relative value of different sorts of transparency.

The Sun’s story on the task-force investigation, written by crime reporter Justin George, has generated a lot of discussion on social media. From what I’ve seen, much of it has been about the level of access the police provided, in a sort of public (or at least semi-public) demonstration of transparency. As the story disclosed:

The Baltimore Sun was granted exclusive access to the task force and monitored the investigation for days. The Sun agreed not to publish details about the investigation until Baltimore State’s Attorney Marilyn J. Mosby decided whether to prosecute any of the officers involved in the Gray incident, though reporters continued to use other sources for information.

With that access, George was able to reveal some compelling details, among them that the timing of Mosby’s decision surprised the investigators, who had “stunned looks [across] their faces” as they watched her Friday press conference; and that a surgeon who works with the US Olympic Committee watched and offered expert opinions as investigators demonstrated the leg hold that officers used to restrain Gray when he was arrested. The story also reported on efforts by investigators to keep a low profile while gathering information:

To recreate Gray’s 45-minute ride in a police van, plainclothes officers rolled a $250,000 laser imaging system on a tripod down potholed roads and cracked sidewalks, ready to tell residents who questioned them that they were city surveyors.

That’s good stuff, and kudos to George and The Sun for getting it. (George did not respond to a request for comment on Monday.)

At the same time, other media outlets were finding Baltimore officials unforthcoming. The Associated Press reported on May 1, a day before George’s story broke, “Nearly two weeks after Gray’s death, the public still doesn’t know much more than it did on Day One.” The AP story noted that the Baltimore Police Department refused to release the report on Gray’s death that it submitted to the state attorney’s office, and the police commissioner declined to answer questions about it.

Frustrated, a coalition of news organizations—including The Associated Press, The Baltimore Sun, The New York Times, the Reporters Committee for Freedom of the Press, The Wall Street Journal, The Washington Post, and three Baltimore broadcast affiliates—on April 30 sent a letter to the BPD public information officer, to address the department’s “failure to respond to several requests for documents … submitted … over the past few weeks” under the Maryland public records law.

Some records may properly be exempt from disclosure. But the letter rightly notes that “the public and the news media have the right to inspect a police record unless the statute exempts it”—and that certain records (e.g., of arrests, 911 tapes, and call logs) don’t fall within any statutory exemption, and those must be released immediately.

It also argues for release of the full report—admittedly, a less clear-cut case—“because there is enormous public interest in and an expectation of transparency with regard to this matter, and release of the document would therefore only serve the public interest.”

The attorney who wrote the letter, Nathan E. Siegel of the firm Levine Sullivan Koch & Schulz, told me that as of late Monday night, the BPD had not responded.

Journalistically, both the access The Sun obtained and the access the coalition is seeking are valid. And, obviously, they are not mutually exclusive—there is no dilemma here for news organizations seeking to uncover information and inform readers.

Still, in a sense this is a tale of two models of transparency, with big conceptual differences between them: one is a privilege that can be easily revoked, while the other is an exercise of rights (recognizing that, yes, even statutory rights can be taken away by a legislature).

To me, the conceptual difference is important because, when we say someone has a right to do something, we mean, as scholar Ronald Dworkin put it, “that it would be wrong to interfere with his doing it.” And, as scholars Erik Ugland and Jennifer Henderson added, “We do not mean wrong in the practical sense of it being ill-advised; we mean wrong in the moral sense of it being a violation.”

So, while we take note of the access the police provided one reporter, I see more value conceptually in the sort of transparency the coalition is seeking—because it doesn’t exist as much at the convenience of the government, and it recognizes the government’s moral obligations to be as transparent as possible about matters of public concern.

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Jonathan Peters is CJR's press freedom correspondent. An attorney, he is an assistant professor of journalism at the University of Kansas, where he teaches and researches media law and policy, with an affiliate research position exploring big data and Internet governance in the KU Information & Telecommunication Technology Center. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.