There was old Odd Couple Show courtroom scene where Felix Unger expounded upon the dangers of “assuming.” I’d encourage you to watch it because it provides an important context for the premise of this post.
Most people may have some experience with the term “off the record” as it applies to the media. Presumably that experience is not personal because most people do not speak with the media on a regular basis and on the off chance that they are being interviewed for a story, its likely to be a human interest story and there would be no reason to speak off the record.
Regular consumers of the 24 hour news cycle may have been surprised to read that reporter and author Michael Wolff is alleged to have published excerpts in his new book “Fire and Fury: Inside the Trump White House” from sources who thought that they were speaking “off the record.”
Here’s a good general rule of thumb to live by, when communicating with anyone, in person, on the phone, via email, on social media, direct message, text, etc… presume that anything you say can and will be repeated and maybe even recorded and/or distributed. A brief detour. In respect to recording, approximately 11 states require all parties in a conversation to consent to being recorded and to do so without consent is a potential crime. The rest of the states require only one party to consent to a conversation being recorded. Interestingly, Vermont appears to be the only state that does not have a specific statue one way or another and there is no clear case law on the issue ( State v. Geraw, ruled that clandestine recording in a person’s home is illegal, while State v. Brooks held that it is OK to eavesdrop on a conversation taking place in a parking lot).
Last year the Vermont Legislature, passed what’s been referred to as the so called “Reporter’s Shield Law” or “Journalist’s Privilege.” Among other things, the new law allows reporters to refuse to disclose or be compelled from disclosing the name of a source to any branch of government, in respect to pretty much every type of tribunal. But just because reporters cannot be compelled by the government to reveal a source, does not mean that a reporter is bound by law from disclosing that same source voluntarily, for any reason.
The Associated Press (AP) has set very clear principles in respect to anonymous sources. Here are a few excerpts from those principles (emphasis mine):
“Reporters should proceed with interviews on the assumption they are on the record. If the source wants to set conditions, these should be negotiated at the start of the interview. At the end of the interview, the reporter should try once again to move some or all of the information back on the record.”
“Not everyone understands “off the record” or “on background” to mean the same things. Before any interview in which any degree of anonymity is expected, there should be a discussion in which the ground rules are set explicitly.
The AP Principles define sourcing as follows:
On the record. The information can be used with no caveats, quoting the source by name.
Off the record. The information cannot be used for publication.
Background. The information can be published but only under conditions negotiated with the source. Generally, the sources do not want their names published but will agree to a description of their position. AP reporters should object vigorously when a source wants to brief a group of reporters on background and try to persuade the source to put the briefing on the record. These background briefings have become routine in many venues, especially with government officials.
Deep background. The information can be used but without attribution. The source does not want to be identified in any way, even on condition of anonymity.
In general, information obtained under any of these circumstances can be pursued with other sources to be placed on the record.
These principles are also reflected in in the Society of Professional Journalists “position papers.” Principles and position papers are wonderful, but also nearly meaningless when it comes to legal enforceability (unlike a law, statute, rule, regulation or code which are almost aways enforceable in a professional or legal context).
So much of life is built on trust, but as President Reagan famously stated using a repurposed a Russian proverb “Trust, but verify.”
When speaking with the media make sure that expectations are agreed to upfront. Make sure the reporter specifically agrees to speak “off the record” and make sure to define what that term means for that reporter. Beware of live or recorded (TV or radio) interviews, where “off the record” is virtually nonexistent and difficult to achieve. Don’t be afraid to tell a reporter that you will get back to her or him and in the meantime take the opportunity to seek advice or discuss the contents of the interview with someone else. If you are really concerned, conduct an interview and agree to its terms only via email. Or ask the reporter if he or she minds if you record your conversation (this is a courtesy and as set forth above, probably not legally required).
Those who regularly interact with the media, have usually developed relationships with reporters and both sides know the rules of engagement and if they fail to follow those rules they do so at their own peril. For everyone else, it doesn’t hurt to make sure that all sides share similar expectations.