Tax Analysts Blog

Off the Record, on Background, and Closed Events: A Bias Against Being on the Record?

Posted on Jun 7, 2016

This isn’t the first time I’ve written about this, and it won’t be the last. Part and parcel of maintaining a transparent tax system is having a press that can report on important issues and the actions of the government. Reporters can’t do that without sources willing to speak on the record and without access to events where government officials are speaking.

I recently spoke at a District of Columbia Bar Taxation Section State and Local Tax Series luncheon. The topic, transparency in state tax administration, is one on which I’ve spoken many times, and I always enjoy it because I strongly believe in the need for a transparent tax system. Much of the conversation at the luncheon was focused on efforts to get additional guidance from state tax agencies without compromising taxpayer confidentiality.

Near the end I raised an issue for reporters that is becoming increasingly common and goes to the heart of a transparent tax system: government officials speaking at private events that are closed to the press. The discussion led to a bit of squirming by practitioners and representatives from trade associations, all of whom have held private events featuring government speakers that were closed to the press.

The justification for holding private events is that it makes the speakers and attendees more at ease and enables them to speak off the cuff. I have some sympathy for the attendees, but I have no sympathy for the government officials. After all, it's their job to serve the public. If they want to speak off the cuff, they can do it on their own time, not when they are speaking at a tax conference in their capacity as a high-ranking official from a tax agency.

I also pointed out that more and more sources are requiring conversations with reporters to be on background or off the record. Government officials are even trying to use background briefings with groups of reporters, rather than having an on-the-record briefing. When I began reporting, conversations were assumed to be on the record unless otherwise stated. Now it seems all are assumed to be on background unless otherwise stated.

But let’s be clear about what all of these phrases mean. According to the Associated Press:

  • On the record means the information that a source provides can be used with no caveats, and the source can be quoted by name.
  • On background means the information can be used for publication but only under conditions negotiated with the source, perhaps by not naming the source but describing his or her position.
  • Deep background means the information can be used but without attribution.
  • Off the record means the information cannot be used for publication.

In any instance, the AP says, information obtained can be pursued with other sources that will be placed on the record. That said, there is often confusion about “off the record” conversations. Some sources believe that term means the information cannot be used for further reporting, so both reporters and sources should be careful when using the term.

Reporters are hesitant to use information they cannot substantiate from a named source. That is for good reason (and not just because reporters know their editors won't accept a story unless it is properly sourced). It is because reporters strive to be transparent in their reporting.

Reporters and publications live or die by their credibility. Tax Notes reporters strive to serve the public by producing fair, non-ideological articles that inform readers about the important tax issues of the day. Our reporters will accurately but aggressively cover the IRS, and state and international tax authorities.

I understand that media training is more common now and that sources are instructed to be clear with reporters about when they are willing to be quoted. That’s fine. Ground rules are useful. But sources should not go into every conversation thinking they can provide interesting information, but then say they are willing to be quoted only on a restatement of widely known law.

This isn’t the first time I’ve written about this, and it won’t be the last. Part and parcel of maintaining a transparent tax system is having a press that can report on important issues and the actions of the government. Reporters can’t do that without sources willing to speak on the record and without access to events where government officials are speaking.

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