The Defense Department spent $70,500 to produce a Humphrey Bogart-themed video called “The People’s Right to Know” to teach employees to respond to citizen requests for information. But when it came to showing the tape to the public, the Pentagon censored some of the footage.
Officials said they blacked out parts of the training video with the message, “copyrighted material removed for public viewing,” because they were worried the government didn’t have legal rights to some historical footage that was included.
Citing the U.S. Freedom of Information Act, The Associated Press asked the Pentagon for a copy of the video nearly 18 months ago. The Defense Department released an edited version of the tape and acknowledged the irony of censoring a video promoting government openness.
“We knew it would be embarrassing,” said Suzanne Council of the Army Office of the Chief Attorney, which gave advice to censor the scenes because of copyright concerns.
The 22-minute video features a trench coat-clad narrator resembling Sam Spade, the detective played by Bogart in the 1941 classic “The Maltese Falcon.” The narrator follows mysterious characters known only as “veiled lady” and “large man” as he describes Pentagon rules under the open records law, which mandates disclosure of most federal documents, e-mails, photographs and videotapes.
‘Tricky business’
“Releasing or denying access to records can be a tricky business,” the narrator says, impersonating Bogart. “In the end it will be up to you to do the right thing and provide as much help as you can.
“And remember, I’ll be looking at you, kid.”
The Pentagon produced the video in 2001 and internally distributed about 100 copies. It explains, for example, that photos of military airplanes and buildings shouldn’t be turned over to the public under the open records law.
The video also includes historic clips from the 1996 Olympics, the exploration of Titanic wreckage in 1986 and Hank Aaron hitting his record-breaking 715th home run in 1974. Those clips and others were copyrighted by organizations that would not give permission to release them, said C.Y. Talbot, chief of the Defense Department’s Office of Freedom of Information and Security Review.
The Army lawyer, Council, said her law staff recently asked the organizations again for their permission and were denied. “We couldn’t get approval; we did our darnedest,” she said.
Legal experts challenged the Pentagon’s refusal to release the entire video, arguing it was improper under the Freedom of Information Act — the subject of the videotape itself — for the government to withhold records because they include copyrighted material.
The video lists reasons for withholding government documents under U.S. law but does not mention copyright. It cites seven categories of information that can be withheld, including classified documents and “trade secrets and commercial and financial information given by companies in their bids for contracts.”
‘This is silly’
“This makes no sense; this is silly,” said David A. Schulz, a First Amendment lawyer in New York who has represented the AP. “This is a novel effort to apply a provision that clearly has no proper application here.”
Schulz said the Pentagon’s assertion would allow the government to keep secret any records that contained material the government itself did not produce, such as letters or e-mails to U.S. officials from outside organizations.
The tape’s existence was first uncovered by Michael Ravnitzky, an open records advocate and private investigator in Washington; he withdrew his request for a copy before he ever received one.
“It was a little childish,” said Jim Klotz, a UFO researcher in Seattle who also asked for the tape. Klotz routinely asks for federal documents and thought the government’s own training video might be helpful. “It wasn’t bad; it covered the basics,” he said.
Michael Powell, a Rice University student in Houston, asked for the tape for his graduate studies on information laws. “Aesthetically, it was horrible,” he said. “The main character was obviously intended to be like Humphrey Bogart and had this terrible Bogart accent the whole way through.”
Experts said it was probably legal for the Pentagon to include the historic footage in its video under the “fair use” provision of U.S. copyright law, which permits use of such clips for criticism, news reporting, teaching or research.
“Nobody wants to get sued,” said Jay Flemma, a New York copyright lawyer. “Corporations would be served best by not including such material, but you certainly can make a strong argument this was fair use.”