1. Public Communications Law Lecture 15 Slide 1 The Right to Access Information Freedom of speech, and of the press, generally does not include the right to receive the information in the first place. –In addition, the security of government records is a goal that is an important function of rules and the government. –However, access to public and government records is something that exists in abundance under various federal laws. The Supreme Court has ruled three general principals when it comes to access to government information: –The First Amendment does not guarantee the right to access information. –Journalists and other citizens are on equal footing when it comes to access to information. –The right to receive information will be balanced against other public interests, such as security and preventing crime.

2. Public Communications Law Lecture 15 Slide 2 Lower Federal Court Decisions Some lower federal courts have acknowledged some level of Constitutional right to access information, including: – Restricting access to an airport after a crash without a “reasonable basis” for doing so was unconstitutional. –Restrictions on access of journalists to polling places to conduct exit polls has been held unconstitutional unless it’s reasonably necessary to prevent disruption of voting. –Government cannot arbitrarily or capriciously exclude journalists from news stories. i.e., it cannot choose which reporters get access –The SDNY court held it was unconstitutional to deny female reporters access to men’s professional sports locker rooms. –Barring access to reporters based on unfavorable writings about the government would be a First Amendment violation.

3. Public Communications Law Lecture 15 Slide 3 Access to Events Events on Public Property –Anyone, including media, has access to public property. –However, when there is a disaster scene, such as a fire or crash, the government agents may keep reporters away for safety reasons. Also, for privacy reasons, there are limits on when and how air crashes can be reported. Quasi-Public Property (e.g., power plants, military bases) –There is no inherent right to access these properties and access may be limited to those there for official reasons. War Zones –Reasonable restrictions for national security purposes are allowed. –Federal rules and practical considerations generally plan in advance what press will be allowed in an operation, and the media will not, and probably cannot, be completely shut out of an operation.

4. Public Communications Law Lecture 15 Slide 4 Freedom of Information Act (FOIA) This guarantees public access to records in many contexts. The law was passed in 1966 and the Electronic FOIA was passed in 1996. The law, in essence, allows complete access to all federal documents unless specifically withheld by the government for good reasons. The act applies to the records of all “agencies” of the federal government, including the FCC, FTC, SEC, etc. It does not apply to the records of the President himself or the individual Congress members and their staffs. The act applies to records in any format, including audio, video, written,, electronic, etc.

5. Public Communications Law Lecture 15 Slide 5 Freedom of Information Act (cont.) Rules regarding production of documents: –They are supposed to be delivered in the requested format, if available. –The agency must search for the records if not readily available. –The agency must have possession and control to be obligated to release it. e.g., if the copyright is owned by a private organization, the government may not be allowed, let alone required, to produce it. Any person or company may make a FOIA request. The request must be filed (there are forms available). –If a request is denied, the denial can be appealed. If a court finds that a request was wrongfully denied, the person who made the request may be awarded costs and attorney’s fees, etc. Agencies are required to expedite requests as much as possible, but this often does not alleviate long delays. There are small fees (per page), but they can be waived based on need.

6. Public Communications Law Lecture 15 Slide 6 Exemptions 1 There are nine categories of exempt materials, that the government need not turn over under the FOIA. 1) National Security –This allows the executive branch a lot of discretion to not release documents that might compromise national security. 2) Agency Rules and Practices –Internal procedure circulars and other departmental memos do not have to be released. –However, this exception does not apply to matters of “genuine and significant public interest.” 3) Statutory Exemptions –This applies to records Congress has ordered stay confidential. –Congress can forbid disclosure altogether or place conditions on the release of certain information.

7. Public Communications Law Lecture 15 Slide 7 Exemptions 2 4) Confidential Business Information –This protects trade secrets and other confidential information belonging to private companies submitted to the government when bidding for government contracts, etc. 5) Agency Memoranda –This protects the decision-making process of agencies from public disclosure, as doing so might inhibit employees from making creative or unusual suggestions, etc. –This is similar to the work product rule applicable in litigation. 6) Personnel and Medical Files –This protects the confidentiality of government employees and their medical records, etc.

8. Public Communications Law Lecture 15 Slide 8 Exemptions 3 7) Law enforcement –Information compiled for purposes of investigating crime, including investigative reports, etc., are exempt from FIOA. This is mainly to protect the effectiveness of ongoing investigations. 8) Banking Reports –Federal audits of banks, financial institutions, etc., that net records of such banks should not be disclosed in the interest of confidentiality of these records. 9) Geophysical Information About Oil and Gas Deposits and Water Wells –This is meant to prevent using government information for speculation purposes (e.g., to determine which wells to buy).

9. Public Communications Law Lecture 15 Slide 9 Federal Laws Preventing Disclosure Section 214 of the Homeland Security Act –This prevents disclosing important infrastructure information, so as not to allow terrorists the ability to use the information to generate targets. Privacy Act –The general rule is that the FOIA overrides this act unless the information falls into one of the 9 exempt categories. Student Records –The Family Educational Rights and Privacy Act allows students access to their own educational records and also to object to their records being released to other sources. Law enforcement records regarding on campus crimes are kept and must be disclosed. Student disciplinary records are often protected by the FERPA. Driving records cannot be disclosed without the consent of the driver; although this isn’t applicable to crimes, which can be released just as can any other criminal or court records.

10. Public Communications Law Lecture 15 Slide 10 State Laws and Disclosure Keep in mind that the FOIA applied only to federal records! Even states that don’t have FOIA equivalents generally allow their records to be disclosed under common law principles. However, the common law has some limitations: –Only people with a legal interest in records are entitled to them. –A record need only be disclosed if it is required to be kept in the first place. All states have some rules requiring disclosure of records –Some states even allow people direct access to government data banks. All states have exceptions for the same or similar cases and reasons as under the federal law.

11. Public Communications Law Lecture 15 Slide 11 Access to Government Meetings Federal “Sunshine” Law –This requires commissions, boards and councils to meet in public. –It applies only to agencies covered under the FOIA. –Also, the public is often afforded the ability to comment and participate in the process of agency decisions. –The agency must place public notices as to the time and place of a public meeting, so as to afford the public the chance to come. Congressional proceedings are open to the public (and it’s often covered on C-SPAN) and the Constitution requires congress to publish a journal of its proceedings. States have similar rules and procedures.