CHER PHILLIPS Gathering Information Chapter 9

Sources for Legal Right of Access Common Law Constitutional Law Statutory Law

Common Law Precedents open certain public records but limited to: - Person must have an interest - Interest is often limited to litigants - Limit can be to records what is required to be kept – common law doesn’t require that much to be kept

Constitution and News Gathering First Amendment was seen as a way to confront the government, not necessarily report on it Three cases asked the high court if journalists had an unobstructed right to gather news in a prison – they said no all three times.

Access to Government Officials: Does a public official have to talk to a reporter? Three cases Baltimore Sun v Erlich + Youngstown Publishing Co. v McKelvey + Citicasters Co. v Finkbeiner = Public officials can refuse interview access and comment to individual reporters, but cannot ban them from public press conferences.

Trespass Intentional, unauthorized entry into land that is occupied or possessed by another Daniel Lovelace – fined $300 for walking into a yard What if a government official invites the reporter onto someone else’s land? Wilson v Layne, Hanlon v Berger

Harassment Inside Edition and the Wolfsons Daughter and son-in-law of Leonard Abramson – subject of story Inside Edition aggressively followed family around Resolved without trial

Fraud Knowingly false statement of a material or significant fact that is communicated with the intent to induce the plaintiff to rely on that statement and that does, in fact, induce the plaintiff to reasonably rely upon it to the plaintiff’s harm or injury. In other words, Can a reporter give a false name and fake work history to get a job to cover a story undercover? The FoodLion story Journalist Avi Lidgi posed as a federal prosecutor and a federal judge’s aide to get secret documents.

Failure to Obey Lawful Orders Journalists can face charges of disorderly conduct or worse if they don’t respect crime-tape boundaries at scene Goes both ways… David Connell and the second story window

Tape and Recording 38 states have one-party consent for taping A dozen states require all parties Interstate conversations make it more complicated Best to get consent for all Can we tape?

Freedom of Information Act 1966 Congress passed FOIA

Applying the Law Its usefulness is determinant on how the government interprets and applies it In 2001 Attorney General John Ashcroft orders all agencies to review more closely what they release Bush admin limited public access to information about critical infrastructure – 2002 Homeland Security Act severely weakened the FOIA

FOIA and Electronic Communication Initial feelings in government were that electronic records were outside FOIA; extended to high officials Clinton admin fought NSA about saving Bush admin sought to erase all communication records among officials during Reagan admin 1993 US court of appeals rejected argument that government should be able to toss information as they saw fit, 1996 Congress amended FOIA to include electronic info

FOIA feature=related

Agency Records Two ways to draft open record law First is open-ended and says that all records are open except for certain exemptions Second is to list the kinds of records that are open The first is stronger for two reasons  Interpretation  The number of agencies:

Agency & Records Agency - The FOIA gives any person access to all records kept by all federal agencies, unless it falls into 9 categories of exemption Records – physical characteristics are not specified but paper, , computer-generated material, films, tapes, three dimensional objects

Agency Record What is an agency record? Not necessarily what you think Record is either created or obtained by an agency and the record is under agency control at the time of the FOIA request, it is likely an agency record If the agency possesses the document but didn’t create it, then might not be an agency record. If the agency came into possession of the record as part of its official duties, then it is probably a record. If the agency just happens to have it, it is not an agency record.

Nine FOIA exemptions 1. National Security matters 2. Housekeeping Materials 3. Material exempted by statute 4. Trade Secrets 5. Working papers/lawyer – client privileged materials 6. Personal Privacy files

Exemptions cont. 7. Law enforcement records 8. Financial institution materials 9. Geological data

FOIA Requests HOW TO MAKE REQUEST Letter Generator:

Government in the Sunshine Act 1976 – Congress passed Government in Sunshine Act or the federal open-meetings law “headed by a collegial body composed of two or more individual members, a majority of whom are appointed to such position by the president with the advice and consent of the Senate.” Courts have strictly interpreted this to mean bodies whose members are appointed by president

State Laws on Meetings and Records These are the statutes that govern which records and which meetings are open and provide a remedy for citizen denied access. They provide rules for notice and how records of meetings should be kept. Open record laws – Sunshine laws – govern the inspection of records.