Why unpublishing a story without explanation doesn’t work

Last week, a CJR colleague emailed a story to me about an intriguing legal issue. I skimmed it and saved the link so I could read the story carefully the next day. But when I clicked the link 18 hours later, I was redirected to the site’s homepage. Wondering if the link had rotted (somehow, in such a short time), or if the story had been unpublished, I emailed the author and was told that “[t]he post was incorrect” and that “[t]he story was removed at [his] direction.”

I was bewildered. The story had seemed thoughtful and well reported, and it had appeared on the website of the Radio Television Digital News Association, the professional organization serving the electronic-news industry. And the author was Vincent Duffy, an accomplished journalist—news director of Michigan Radio and a longtime RTDNA board member, the recipient of seven national Edward R. Murrow Awards.

RTDNA and Duffy had some explaining to do.

In exactly what respects was the story “incorrect”? Why was it removed rather than corrected? Did RTDNA or Duffy owe readers a more detailed, informative explanation than the one they offered? To answer those questions, let’s unpack Duffy’s story and then take up the unpublishing issues.

The disappeared story

Posted July 23 under the headline “You can’t FOIA us, we own you,” the story recounts Michigan Radio’s plans to do a piece comparing campus sexual-assault data for Michigan’s 13 state colleges and universities. The station sent identical public-records requests to the schools asking for certain information.

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Duffy reported that the FOIA office at the University of Michigan, which owns the station’s license, questioned why his reporters filed a records request and said they should simply ask whenever they want records. So, Duffy wrote, a reporter requested records from a U-M spokesperson, who said they wouldn’t be available until later this year—and the station filed another records request.

This is where things get interesting.

Duffy reported that U-M counsel told him that the station “cannot submit FOIA requests” to U-M and that the station might not be able legally to compel the university to disclose documents under the state public-records law—because the station and university are one and the same, with U-M owning the station’s license.

Incredulous, Duffy called “[t]wo prominent FOIA attorneys not affiliated with” U-M who said they “strongly disagree[d]” with the university’s counsel, according to the story. One pointed out, Duffy wrote, that even if it were true that the station couldn’t compel disclosure from U-M, any of the station’s staff members, as individuals, could do so.

Duffy closed by commenting:

[I]f you work for a news outlet owned by a public body, whether that’s a university, a community, or a state board, you may want to try and get clarification about this issue before you’re in the middle of a disagreement over a public records request. Will you be able to FOIA the organization that owns you, or will you find yourself “owned?”

What inaccuracies? And why unpublish rather than correct?

When I emailed Duffy and was told the story was “incorrect” and “removed at [his] direction,” he also said, “Michigan Radio can and does submit FOIA requests to the University of Michigan and they are routinely fulfilled, as they were on this most recent inquiry.” That was his entire response. The same language appeared later on RTDNA’s Twitter feed. Otherwise, there was no editor’s note in place of the story, no explanation of what happened—just a dead link.

That remains true as of this writing.

Interestingly, Deadline Detroit aggregated the story not long after Duffy published it. And then, not long after the story was unpublished, Duffy asked Allan Lengel, Deadline’s cofounder, to remove the aggregated post. Lengel refused.

However, Lengel and Alan Stamm, who aggregated the story for Deadline, added an update to the post, noting that RTDNA had removed the story and that Lengel had “declined [Duffy’s] request to remove this article, because it reports accurately on [Duffy’s] publicly posted comments.”

For its part, RTDNA, through executive director Mike Cavender, said Duffy writes “periodically on subjects of his choosing.” Cavender said the site’s contributors’ views “represent those of the individual writer” and that RTDNA removed Duffy’s story after he “realized his post … contained some inaccuracies” and “asked” for its removal.

But what inaccuracies? And why was the story unpublished rather than corrected? Duffy told me Tuesday he was trying to explore whether an entity owned by a public body (Michigan Radio) could compel that body (the University of Michigan) to disclose information under the state sunshine law.

“What I did not mean to say (but many, especially at the university, read into the blog post) is that Michigan Radio is not even permitted to submit FOIA requests to the university,” Duffy told me. “We do submit FOIA requests to the FOIA office at the university, and they are regularly fulfilled or denied.”

Duffy said he thought his story made clear that the station submits FOIAs and that U-M responds. However, he said, “The FOIA office understood my blog post to suggest that I was claiming they ignored and/or did not fulfill our requests.” He added that U-M is processing the station’s requests for campus sexual-assault data.

Duffy also said that after he published the story, the station’s general manager asked Duffy to participate in a conference call about the story with “numerous other university officials.” That call was off the record, he said, because some participants feared Duffy would write about it.

“What I can share,” Duffy told me, “is that numerous potential solutions to address university concerns regarding the blog post were discussed, and of them, I believed the best solution was to take the blog post down. That was my decision.”

He declined to discuss the other “potential solutions.”

U-M spokesman Rick Fitzgerald told me he wasn’t sure who was on the call, but he was “confident” no one asked Duffy to unpublish the story.

“We asked Duffy to deal with it in a way he felt was appropriate,” Fitzgerald said. “We expressed concerns about certain inaccuracies in the story.”

Fitzgerald said the concerns were threefold: Duffy’s statement that the station can’t submit FOIA requests to U-M; that U-M can’t demand records from itself; and that the U-M FOIA office told Duffy the station should simply ask for records whenever it needed them.

Fitzgerald said one and two were untrue because the station submits FOIA requests and U-M responds to them, and the third was a misunderstanding—the FOIA office only meant that in some cases (e.g., those in which the requested records are publicly available) the station might get a quicker response if it asked informally.

So, where does this leave us?

Taking on the take-down

First, Duffy and RTDNA didn’t handle this well. Duffy was reasonably forthcoming with me, but he owed his readers a detailed, informative explanation at the time RTDNA unpublished the story. The initial cursory response I got from Duffy—which RTDNA tweeted—was unsatisfactory. It didn’t clearly or precisely address why the story had been removed, and the link still redirects to RTDNA’s homepage.

“For an organization with ‘news association’ in its name and journalists on its board to remove a post cavalierly,” Stamm told me, “suggests surprising insensitivity to the principles of respecting your audience, communicating clearly, and acting with openness.”

Similarly, Kelly McBride, a media ethicist at Poynter, told me, “In general, if a story is completely wrong, I think it’s okay to unpublish. But you have to replace it with a note saying that the very premise of the story was false and the story could not be corrected.”

McBride spelled out that idea, and others on unpublishing, in a Poynter story last year. She wrote that if a news organization unpublishes, it should “keep a blank page up, rather than making the entire URL disappear or redirecting to a homepage without note”; “[o]n that blank page, insert a precisely worded explanation from editors describing why the material had to be removed”; and “remove entire articles only as a last resort.”

Second, I’m not convinced the story needed to be unpublished. Again, Duffy said he was trying to address whether the station, a U-M unit, could compel the university to disclose information under the state records law. The story addressed as much, and Duffy maintains that U-M counsel raised that issue with him.

However, Duffy did imprecisely word some of his points. He reported that U-M counsel said the station “cannot submit FOIA requests” to U-M and that U-M “can’t demand public records from itself,” two of the three flags thrown by Fitzgerald. The first was incorrect, and even Duffy says so. But the second was a closer call. Can U-M demand records from itself, insofar as the station is a U-M unit and “demand” implies a right of access and thus the ability to compel disclosure?

Duffy told me he thought that issue merited discussion and would be interesting to other entities and media outlets owned by public bodies. “Subsequent discussions on this legal technicality have not [made] the issue any more clear,” he said. “If I am wrong in my understanding, I would welcome the opportunity for university counsel to publicly explain the university’s position on this legal point, and alleviate my concerns.”

When I asked Fitzgerald whether U-M counsel believed the station could not compel U-M to disclose records, he said, “I wasn’t part of that conversation, and I’m not sure what the legal ramifications of that situation might be. That the station and U-M would find themselves in that situation is a far-end-of-the-spectrum possibility.” (Translated: I don’t know, but it’s not a very likely scenario anyway, so why worry?)

At any rate, Duffy should have been more precise in characterizing U-M’s responsiveness to the station’s requests, and he could have clarified things by correcting the story, or adding a note to explain what he meant and to absolve the FOIA office of certain sins he imputed to it, of suggesting that the office “ignored and/or did not fulfill [the station’s] requests.”

That kind of surgical approach would have brought clarity to the story and salvaged its many points that were accurate and worthy of discussion (e.g., the comments on the general challenges of obtaining records from Michigan public bodies, the background on the station’s plans to report on campus sexual assault, the call for clarity on whether an entity owned by a public body could compel that body to disclose information). In short, the story was neither completely wrong nor incapable of being clarified or corrected, and therefore unpublishing was too strong a remedy.

With that in mind, at the least I hope Duffy and RTDNA, who surely follow established standards for publishing, will put their heads together to establish standards for unpublishing. As McBride put it, “Taking articles down is a rare phenomenon among trustworthy institutions, and it should be executed in the full light of day.”

UPDATE: A few hours after we published this piece, RTDNA posted on its website a piece by Executive Director Mike Cavender titled, “Learning from your mistakes,” which links to CJR’s piece and reads, in part: “We erred in taking the post down and not replacing it with a suitable explanation as to why we did so. We apologize to our readers for that omission….You have every right to expect the highest standards of journalism coming from this organization and its leadership.You have our assurance that we will do better in the future.”

Editor’s note: This post originally indicated that U-M counsel told Duffy that he should simply ask for records rather than file a FOIA request. It was the U-M FOIA office that told Duffy this and the post has been updated accordingly.

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Jonathan Peters is CJR’s press freedom correspondent. He is a media law professor at the University of Georgia, with posts in the Grady College of Journalism and Mass Communication and the School of Law. 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.