Gathering Information

CHAPTER 9

Gathering Information RECORDS AND MEETINGS News Gathering and the Law The Constitution and News Gathering Access to Government Officials: A Right to Interview? The First Amendment Protection of News Gathering Summary The Freedom of Information Act Applying the Law FOIA and Electronic Communication Agency Records What Is an Agency? What Is a Record? What Is an Agency Record? FOIA Exemptions National Security Housekeeping Practices Statutory Exemption Trade Secrets Working Papers/Discovery Personal Privacy Law Enforcement Financial Records Geological Data Handling FOIA Requests Federal Open-Meetings Law Summary State Laws on Meetings and Records State Open-Meetings Laws State Open-Records Laws The Privatization of Public Government Summary Laws That Restrict Access to Information School Records Health and Medical Records The Federal Privacy Law Criminal History Privacy Laws State Statutes That Limit Access to Information Summary Bibliography Page 320 This chapter focuses on how the law affects the efforts of reporters and ordinary citizens to gather information about what is going on in the nation and their communities. Until about 20 years ago the text focused on federal and state statutes that either permit or limit the gathering of information from government records or from meetings of government agencies. Today the law regarding news gathering is also focused on efforts by the government and others to stop the press from collecting data about a wide range of people and activities. Both topics are covered here. Additional material on access to the judicial process and judicial records is presented in Chapter 12. Information is the lifeblood of American journalism and American politics. Until the mid-20th century there were few significant rules that defined the rights of citizens, including journalists, to gain access to the information generated and kept by the government. Reporters developed sophisticated but informal schemes with news sources in government to get the material they needed. The average citizen was shut out. Since the 1950s state and federal governments have passed laws defining public access to records and meetings. If there was a “Golden Age of Access” to information it was likely in the 1970s and early 1980s. Since then there has been a growing government resistance to public (especially press) access to such materials—a resistance exacerbated by the events of Sept. 11, 2001. President Barack Obama vowed to change this shortly after taking office. He declared a new era of open government and asserted that when it comes to Freedom of Information Act (FOIA) requests to government agencies, there should be a clear presumption in favor of disclosure and that, in turn, disclosure should be timely.1 Obama declared a new era of open government. Despite the lofty rhetoric and hope for change in the form of greater transparency by the federal government, the Obama administration largely failed to deliver on its promises. An audit conducted by the National Security Archive at George Washington University and released in December 2012 found that more than 60 percent of the 99 government agencies surveyed had failed to update their FOIA regulations despite a March 2009 memorandum from Attorney General Eric Holder calling on each agency to review its internal FOIA policies and to take steps to improve them. Furthermore, the report found that 56 agencies had not updated their FOIA regulations since the passage of the OPEN Government Act of 2007 (described later in this chapter), which mandated that agencies reform their fee structures, provide easy-to-use tracking numbers for all FOIA requests, publish data on their FOIA output and work with FOIA mediators at the Office of Government Information Services (OGIS). In a statement responding to the audit, U.S. Senator John Cornryn (R.-Tex.), who helped to draft and sponsor the OPEN Government Act, observed that “When President Obama took office, he pledged that his administration would be the most transparent in history. This report reveals how hollow that pledge was.” Senator Patrick Leahy (D-Vt.), who worked with Cornryn on the Act, stated that the 2012 National Security Archive audit “makes clear that the overwhelming majority of federal agencies are neither fulfilling the President’s promise of an open and transparent government for the American people, nor complying with the vital reforms to the FOIA process that Congress demanded by enacting the . . . OPEN Government Act.” Page 321 Furthermore, four years after President Obama took office, access to federal agency records was still not always easy to obtain. A study released in September 2012 by Bloomberg News found that only eight of 57 major federal agencies surveyed responded timely (within the 20-day window mandated by statute) to requests by Bloomberg News relating to out-of-town travel records for both cabinet secretaries and top officials at those agencies. That’s a scant 14 percent compliance record. Furthermore, a whopping 27 of the agencies (slightly more than 47 percent) had failed to fulfill the requests more than three months later. For instance, the Department of Homeland Security failed to fulfill Bloomberg’s request for travel records for its head, Janet Napolitano, while the Department of Justice failed to respond to the same request for records to its head, Attorney General Eric Holder. New York University Professor Paul Light told Bloomberg News that “it’s ironic that the demands in the presidential campaign for Mitt Romney’s tax returns are unrelenting, but when it comes time to release the schedules for senior appointees there’s the same denial of access.” The federal government’s own data for fiscal-year 2012 showed a backlog of 71,790 record requests across all federal agencies—a minor increase from two years before, when there were 69,526 backlogged requests. The agency with the highest number of backlogged requests at the end of fiscal-year 2012 was the Department of Homeland Security, with more than 28,500 backlogged requests. Complete and updated data information can be found at http://www.foia.gov, the federal government’s official FOIA Web site operated by the Department of Justice. Access to government information today is denied in many ways, from secret docketing of cases so the public doesn’t even know they exist to the use of the states’ secret privilege to withhold documents or testimony that allegedly could jeopardize national security. In 2006 The New York Times exposed a seven-year-old program under which government intelligence agencies removed from public access at the National Archives in Washington, D.C., “thousands of historical documents that were available for years, including some already published by the State Department and others photocopied years ago by private historians.”2 In brief, the federal government was reclassifying as confidential and secret more than 55,000 previously declassified pages from its document repository. What does it cost to declassify information—to change it from classified to unclassified status? A very large sum! According to a 2012 report by the Information Security Oversight Office (ISOO), it cost 41 executive branch agencies about $52.76 million in fiscal-year 2011 to identify and process information subject to the automatic, systematic and mandatory review declassification programs, as well as discretionary declassification activities. The 41 agencies included the Department of Defense, but not the Central Intelligence Agency, Defense Intelligence Agency and a few other defense/security agencies such as the National Security Agency. ISOO is part of the National Archives and Records Administration (NARA), which calls itself “the nation’s record keeper” and safeguards and preserves records of the federal government. The complete report can be found at http://www.archives.gov/isoo/reports/2011-cost-report.pdf, while the website for NARA is located at http://www.archives.gov. Page 322 Journalists and citizen activists are often forced to go to court to try to assert rights they believe have been abridged by government restrictions on access to information. But rights and liberties are grounded in the law. When someone goes to court and asks for something, the first thing the judge will say is “Show me the law.” So if journalists hope to use the law for assistance, they must find support in one of those sources of the law discussed in Chapter 1. But rights and liberties are grounded in the law. NEWS GATHERING AND THE LAW In order for journalists to gather news, they must have access to information. While information to courts, trials and judicial proceedings is discussed in Chapter 12, there are three primary sources of law to which journalists might look to find a legal right of access to information such as documents, records, meetings and venues. Those sources of law are figureCommon law figureConstitutional law (the First Amendment to the U.S. Constitution) figureStatutory law (both state and federal statutes) Despite the tradition of open government both in this country and in Great Britain, common law provides only bare access to government documents and to meetings of public agencies. Secrecy in England had a direct impact on how colonial legislatures conducted their business. The Constitutional Convention of 1787 in Philadelphia was conducted in secret. The public and the press had almost immediate access to sessions in the U.S. House of Representatives, but it was not until 1794 that spectators and reporters were allowed into the Senate chamber. Although today access is guaranteed to nearly all sessions of Congress, much (maybe even most) congressional business is conducted by committees that frequently meet in secret. Common-law precedents exist that open certain public records to inspection by members of the public, but distinct limitations have been placed on this common-law right. For example, under common law a person seeking access to a record normally must have an “interest” in that record. Most often this interest must relate to some kind of litigation in which the person who seeks the record is a participant. Also, only those records “required to be kept” by state law are subject to even such limited disclosure under common law. Many important records kept by the government are not “required to be kept” by law. Hence, common law must be found wanting as an aid in the process of news gathering. THE CONSTITUTION AND NEWS GATHERING Does the U.S. Constitution provide any assistance to citizens who seek to scrutinize government records or attend meetings of government bodies? Surprisingly the First Amendment plays a rather insignificant role in defining the rights of citizens and journalists in the news-gathering process. The amendment was drafted in an age when news gathering was not a primary function of the press. The congressional records of the drafting and adoption of the First Amendment fail to support the notion that the protection of the news-gathering process was to be included within the scope of freedom of the press. The First Amendment was seen as a means by which the public could confront its government, not necessarily report on its activities.3 Page 323 The Supreme Court has explored the nexus between freedom of expression and news gathering. In a non-press-related case in 1964, the high court ruled that the constitutional right to speak and publish does not carry with it the unrestrained right to gather information.4 Eight years later Justice Byron White, speaking for three other members of the court, said: “Nor is it suggested that news gathering does not qualify for First Amendment protection; without some protection for seeking out the news, freedom of the press could be eviscerated.”5 Many First Amendment lawyers regard this statement as a fountain from which a constitutionally based right to gather news springs, but others disagree. White’s statement was dictum in a case that involved the right of journalists to refuse to reveal the names of confidential news sources (see Chapter 10). And White said he didn’t see any connection at all between news gathering and a reporter’s right to protect the name of a news source. The sentence was hardly a ringing endorsement of a First Amendment right of access to information. These comments are as far as the high court has gone in dealing with this issue in an abstract or theoretical way. “Without some protection for seeking out the news, freedom of the press could be eviscerated.” The high court has been asked on three occasions whether the First Amendment guarantees a journalist the unobstructed right to gather news in a prison. In each case the court said no. In Pell v. Procunier,6 reporters in California attempted to interview specific inmates at California prisons. In Saxbe v. Washington Post,7 reporters from that newspaper sought to interview specific inmates at federal prisons at Lewisburg, Pa., and Danbury, Conn. In both instances the press was barred from conducting the interviews. The U.S. Bureau of Prisons rule, which is similar to the California regulation, states: Press representatives will not be permitted to interview individual inmates. This rule shall apply even where the inmate requests or seeks an interview. At issue was not access to the prison system. The press could tour and photograph prison facilities, conduct brief conversations with randomly encountered inmates and correspond with inmates through the mails. In addition, the federal rules had been interpreted to permit journalists to conduct lengthy interviews with randomly selected groups of inmates. In fact, a reporter in the Washington Post case did go to Lewisburg and interview a group of prisoners. The argument of the press in both cases was that to ban interviews with specific inmates abridged the First Amendment protection afforded the news-gathering activity of a free press. The Supreme Court disagreed in a 5-4 decision in both cases. Justice Stewart wrote in the majority opinion that the press already had substantial access to the prisons and that there was no evidence that prison officials were hiding things from reporters. Stewart rejected the notion that the First Amendment gave newspeople a special right of access to the prisons. “Newsmen have no constitutional right of access to prisons or their inmates beyond that afforded the general public,” the justice wrote.8 Since members of the general public have no right to interview specific prisoners, the denial of this right to the press does not infringe on the First Amendment. “Newsmen have no constitutional right of access to prisons or their inmates beyond that afforded the general public.” The high court did not disagree with the findings of the district court in the Saxbe case that face-to-face interviews with specific inmates are essential to accurate and effective reporting about prisoners and prisons. What the court seemed to say was that while the First Amendment guarantees freedom of expression, it does not guarantee effective and accurate reporting. Page 324 In 1978 the high court split along similar lines on a case involving press access to a county jail.9 An inmate at the Santa Rita County, Calif., jail committed suicide in 1975. Following the death and a report by a psychiatrist that jail conditions were bad, KQED television sought permission to inspect and take pictures in the jail. Sheriff Houchins announced that the media could certainly participate in one of the six tours of the jail facility given to the public each year. However, the tours did not visit the disciplinary cells nor the portion of the jail in which the suicide had taken place. No cameras or tape recorders were allowed, but photographs of some parts of the jail were supplied by the sheriff’s office. Reporters at KQED took a jail tour, but were not happy at the limits placed on them. Sheriff Houchins contended that unregulated visits through the jail by the press would infringe on the inmates’ right of privacy, could create jail celebrities out of inmates that would in turn cause problems for jailers, and would disrupt jail operations. Houchins noted that reporters did have access to inmates—they could visit individual prisoners, could visit with inmates awaiting trial, could talk by telephone with inmates, could write letters to prisoners and so forth. But KQED argued that it had a constitutionally protected right to gather news and challenged the limits. Chief Justice Warren Burger wrote the opinion for the court in the 4-3 decision. “Neither the First Amendment nor the Fourteenth Amendment mandates a right of access to government information or sources of information within the government’s control,” Burger asserted. The chief justice seemed troubled by the argument of KQED that only through access to the jail could the press perform its public responsibility. “Neither the First Amendment nor the Fourteenth Amendment mandates a right of access to government information or sources of information within the government’s control.” Unarticulated but implicit in the assertion that the media access to jail is essential for an informed public debate on jail conditions is the assumption that the media personnel are the best qualified persons for the task of discovering malfeasance in public institutions. . . . The media are not a substitute for or an adjunct of government. . . . We must not confuse the role of the media with that of government.10 In 2009 the 2nd U.S. Circuit Court of Appeals held in Hammer v. Ashcroft11 that a rule banning in-person meetings between reporters and prisoners held in the special confinement unit (mostly comprised of death-row inmates) at the federal prison in Terre Haute, Ind., was permissible and did not violate prisoners’ rights. Prisoners in other units, however, were allowed in-person interviews with the press. In upholding the rule, the appellate court observed that the inmates in the special confinement unit were not denied all access to the press, as they were allowed to use telephones and U.S. Mail to communicate with reporters. The court found that a reasonable justification for the rule against face-to-face interviews with death-row inmates was the danger that such interviews, when televised, would turn the inmates into celebrities. The government did not want people to become celebrities by committing crimes, such as Oklahoma City bomber Timothy McVeigh who was held at Terre Haute before being executed. The government also feared that celebrity prisoners would create envy and jealousy among the prison population, leading to possible disturbances. In 2010 the U.S. Supreme Court declined to hear the case, thus letting the appellate court’s ruling stand. Page 325 In 1980 in a case that many commentators hailed as the beginning of a general constitutionally guaranteed “right to know,” the Supreme Court ruled that the First Amendment does establish for all citizens the right to attend criminal trials.12 (See Chapter 12 for a full discussion of this case.) But while Chief Justice Burger’s opinion was quite explicit regarding the First Amendment and attendance at criminal trials, it was obscure regarding the larger constitutional right to gather news in other contexts. And the high court has done little in the past two decades to clarify its position on this question. Although it has decided a number of right-of-access cases since Richmond Newspapers,13 the Supreme Court has never explicitly recognized this right outside of judicial proceedings. The lower federal and state courts tend to mirror the rulings by the Supreme Court that reject the notion of a First Amendment right of access to information and meetings. There are, however, significant exceptions: figureIn 2008 a federal district court reiterated the findings of other courts that “exit polling, which involves a discussion of governmental affairs and politics as well as the media’s right to gather news, is protected by the First Amendment.”14 The court noted that while content-based regulations on exit polling are impermissible, content-neutral time, place and manner regulations (see Chapter 3) may be okay depending upon how far away the media are kept from the polls. figureWhen the White House staff tried to exclude camera crews with CNN from the pool of network television photographers who cover the president, a U.S. District Court forbade the discriminatory action, noting that the First Amendment includes a “right of access to news and information concerning the operations and activities of government.”15 figureA U.S. District Court in Ohio ruled in 1988 that the press and the public have a qualified First Amendment right of access to the legislative process—in this case a city council meeting. The court said there was always a First Amendment presumption in favor of open government meetings, a presumption that can only be overcome by a formal showing of a need for privacy and confidentiality.16 figureIn 2002 the 9th U.S. Circuit Court of Appeals held that the public enjoys “a First Amendment right of access to view executions from the moment the condemned is escorted into the execution chamber.”17 This right of access, the appellate court wrote, includes the right to watch so-called initial procedures, including the forcible restraint of the condemned and the fitting of that person “with the apparatus of death.” The court reasoned, in part, that “informed public debate is the main purpose for granting a right of access to governmental proceedings.” Precisely one decade later, the 9th Circuit reiterated its position after Idaho refused to allow witness access to the initial part of an execution procedure, namely the entry of the condemned individual into the execution chamber and the insertion of intravenous lines into his body. Specifically, Judge Stephen Reinhardt rebuked Idaho and wrote in 2012 in Associated Press v. Otter18 for a unanimous three-judge panel that “the First Amendment protects the right to witness executions in their entirety.” Page 326 Unfortunately decisions like these stand in stark contrast to a larger body of case law that denies this proposition. For instance, a federal court in Arkansas in 2008 disagreed with the 9th Circuit’s ruling described above regarding a First Amendment right of public access to witness executions. In rejecting the existence of such a right, U.S. District Judge Susan Webber Wright wrote in Arkansas Times v. Norris that “the Supreme Court has never recognized a First Amendment right of access to executions,” and added that of all the federal appellate courts, only the 9th Circuit has held that the First Amendment includes a right of public access to executions.19 In reaching her anti-access conclusion, Judge Webber Wright observed that “in contrast to the unbroken, uncontradicted history of access to criminal trials, in the 1830s, executions in the United States became private events and moved from the public square to inside prison walls.” Other courts have denied a First Amendment right of access in similar situations. TAKING OUTDOOR PHOTOGRAPHS OF FEDERAL PROPERTY? IT’S NOT ALWAYS AS EASY AS YOU MIGHT THINK In 2010 the New York Civil Liberties Union Foundation filed a lawsuit called Musumeci v. United States Department of Homeland Security that challenged the constitutionality of a little-known federal regulation that prohibits people “entering in or on federal property” from taking photographs of “building entrances, lobbies, foyers, corridors, or auditoriums for news purposes” if “security regulations, rules, orders or directives apply or a Federal court order or rule prohibits it.” The lawsuit was filed after Antonio Musumeci was arrested the previous year while videotaping a political protest in a public plaza outside a federal courthouse in lower Manhattan. Specifically, Musumeci was standing in a plaza immediately adjacent to the Moynihan Federal Courthouse when he was arrested for violating the regulation (41 Code of Federal Regulations § 102-74.420). He contended there were no signs in the plaza indicating it was either federal property or that federal regulations restricted photography in the area. The New York Civil Liberties Union Foundation argued that the regulation is: (1) enforced inconsistently “as an excuse to arrest and harass law-abiding photographers”; and (2) unconstitutional to the extent that it regulates noncommercial photography in outdoor areas, such as sidewalks and plazas, to which the public otherwise has unrestricted access. The case settled in October 2010, with Federal Protective Service (FPS) agreeing to pay $1,500 to Musumeci and, perhaps more importantly, the requirement that written notices be distributed to all FPS officers to remind them that no general security regulations prohibit exterior photography taken outside federal courthouses in public spaces. In return, the settlement allows FPS security officers (as well as other law enforcement personnel) to approach individuals taking photographs and to ask them for the voluntary provision of information such as why they are taking photographs and their identity, and to take lawful steps to ascertain whether unlawful activity, or reconnaissance for the purpose of a terrorist or unlawful act, is being undertaken. Page 327 In 2004 the 8th U.S. Circuit Court of Appeals held in Rice v. Kempker that “the First Amendment does not protect the use of video cameras or any other cameras or, for that matter, audio recorders in the execution chamber.”20 In this case, a religious-based group in Missouri called New Life Evangelistic Center wanted to videotape the execution of a convicted murderer, Daniel Basile, in a Missouri correctional facility, and it asserted a First Amendment right of public access. The organization contended that allowing viewers to see the horror of a man put to death would convince people that capital punishment is wrong and thus would help end capital punishment in Missouri and in the United States. The appellate court, however, reasoned that “neither the public nor the media has a First Amendment right to videotape, photograph, or make audio recordings of government proceedings that are by law open to the public.” Most courts have refused to recognize the First Amendment as a means to gain access to government records, government meetings or government facilities. A key point that must be remembered regarding these rulings: In virtually all the instances noted in which a court has ruled that the First Amendment does provide a means of gaining access to a meeting or a record, the court has emphasized that this right belongs to both the press and the public. Reporters are not given any special rights in this regard, only those rights that all citizens enjoy. “Neither the public nor the media has a First Amendment right to videotape, photograph, or make audio recordings of government proceedings that are by law open to the public.” Access to Government Officials: A Right to Interview? Each example described so far involved a question of First Amendment access to either a place, such as a government-run prison, or to a proceeding like a government meeting or an execution. But what happens when a reporter simply wants access to speak with a person—namely, a government official such as a mayor or a governor—and that official has issued a “no-comment policy” and refuses to speak with specific members of the press? Is there, in other words, a First Amendment right of access for the media to conduct one-on-one interviews with government officials such that the officials cannot refuse to speak with the news media? Page 328 The answer appears to be no. In 2006 the 4th U.S. Circuit Court of Appeals held that then–Maryland Gov. Robert L. Ehrlich Jr. did not violate the First Amendment rights of two Baltimore Sun reporters when he issued a directive denying them interview access. In Baltimore Sun v. Ehrlich,21 the paper claimed the no-access directive was in retaliation for what the governor believed was negative coverage and commentary by Sun journalists David Nitkin and Michael Olesker. The appellate court, however, held that “no actionable retaliation claim arises when a government official denies a reporter access to discretionarily afforded information or refuses to answer questions.” It reasoned that the governor’s response to the Sun’s coverage “is a pervasive feature of journalism and of journalists’ interaction with government. Having access to relatively less information than other reporters on account of one’s reporting is so commonplace that to allow the Sun to proceed on its retaliation claim addressing that condition would ‘plant the seed of a constitutional case’ in ‘virtually every’ interchange between public official and press.” The appellate court added that “in the ongoing intercourse of government and press, a reporter endures only de minimis [minimal] inconvenience when a government official denies the reporter access to discretionary information or refuses to answer the reporter’s questions because the official disagrees with the substance or manner of the reporter’s previous expression in reporting.” This ruling agrees with the 2005 federal district court decision in Youngstown Publishing Co. v. McKelvey.22 In this case, a judge held that a no-comment policy issued in 2003 by George McKelvey, then the mayor of Youngstown, Ohio, that directed city employees not to speak with reporters from a bimonthly newspaper called the Business Journal did not violate the First Amendment. The judge concluded “the right of access sought by the Business Journal is to information not otherwise available to the public, and, therefore, is a privileged right of access above that of the general public to which no constitutional right of access applies. The no-comment policy does not impede the Business Journal from engaging in a constitutionally protected activity, and Plaintiffs cannot establish this element of their First Amendment retaliation claim.” Although the paper appealed to the 6th Circuit, the appellate court dismissed the case in June 2006 as moot because a new mayor had taken office and withdrawn McKelvey’s edict to various city officials instructing them not to speak to reporters from the Business Journal. In brief, the new mayor’s rescission of the no-comment policy meant there no longer was a case to hear.23 In 2007, however, in a slightly different scenario, a federal judge held in Citicasters Co. v. Finkbeiner that the mayor of Toledo, Ohio, could not exclude a specific radio reporter from attending the mayor’s press conferences that are open generally to all journalists.24 Judge James G. Carr reasoned that a press conference is a public event, in contrast to the cases of Baltimore Sun v. Ehrlich and Youngstown Publishing Co. v. McKelvey in which reporters were denied private interview access and/or direct comments to their questions. The mayor’s office unsuccessfully argued that the radio personality who was denied access was not a news reporter but was an entertainer. Page 329 Viewed collectively, then, this trio of cases suggests that while government officials can refuse to grant one-on-one interview access to specific reporters and can refuse to give comments to specific members of the news media, they cannot selectively deny access to specific reporters from public press conferences that are open to all members of the news media. Some governmental entities have even placed no-talk orders on all of their employees. For instance, in 2010 the board of aldermen of Waveland, Miss., adopted a policy that prohibits all employees, officials, or commissioners from giving any interviews, statements, or press conferences with any news organizations without prior approval from either the mayor or the city attorney. The policy was added to the employee handbook for those working in this small city located on the Gulf of Mexico. The First Amendment Protection of News Gathering As it grows harder for plaintiffs to win libel suits against the media (actual malice is tough for public officials and public figures to prove), plaintiffs’ attorneys now are suing not just for how news is reported, but increasingly for how news is gathered. The First Amendment generally provides no special protection for journalists or exemption from generally applicable laws when they gather news. Arguments that the constitutional protection of a free press allows journalists to bend or break criminal and civil laws when gathering news typically are rejected by courts. Plaintiffs’ attorneys now are suing not just for how news is reported, but increasingly for how news is gathered. In 1998, for example, a U.S. District Court in Maryland refused to dismiss charges of transporting and receiving child pornography against a freelance journalist who attempted to block the prosecution by arguing that he was gathering news, not child pornography. Lawrence Matthews said that law enforcement officials were too zealous in their prosecution of Internet users and that the news stories resulting from his investigation would reveal this overly aggressive official action. His work was in the public interest, he said. But the court was not moved. “It is well settled that the First Amendment does not grant the press automatic relief from laws of general application,” Judge Williams said. “If law enforcement officials are doing something improper in their investigations the court does not understand how the defendant would uncover malfeasance by receiving and disseminating the materials himself.”25 In 2000 the 4th U.S. Circuit Court of Appeals affirmed Judge Williams’ decision and rejected Matthews’ assertion that the First Amendment entitled him to assert a legitimate-journalistic-purpose defense to conviction under federal child pornography laws.26 It also rejected the friend-of-the-court argument of the Reporters Committee for Freedom of the Press that there should be a more general journalistic news-gathering exemption from those laws. The appellate court cited with approval the Supreme Court’s opinion in Branzburg v. Hayes for the proposition that the First Amendment does not provide “a license on either the reporter or his news sources to violate valid criminal laws.”27 “It is well settled that the First Amendment does not grant the press automatic relief from laws of general application.” Page 330 Most reporters don’t violate criminal statutes, as Matthews was charged with doing, to investigate how the police enforce those statutes. But reporters do break other laws. An overview of some of these kinds of situations will demonstrate that the courts are no more tolerant of these actions. Trespass In 2009 a West Virginia judge held that two photojournalists did not have a First Amendment–based right to be on the property of Massey Energy Company to shoot pictures of a group of protesters complaining about so-called mountaintop removal mining. The two were given trespass citations. Sometimes, however, it seems that reporters, including student journalists, are arrested for trespassing even when they are on public property simply because police become annoyed with their activities. In 2010 Alex Kotran, a photographer for The Lantern, the student newspaper at Ohio State University, faced a possible misdemeanor trespass charge for taking photographs of police trying to round up two cows that had escaped onto some athletic fields. Kotran, as reported in The Lantern, said he was handcuffed and the police officer “told me I was under arrest. I advised him that I was on public property.” Every year, it seems, journalists run afoul of the law on trespass charges, some of which are no doubt legitimate and others which appear to be trumped up by law enforcement officials in deliberate efforts to censor the press. Trespass is an intentional, unauthorized (i.e., without consent) entry onto land that is occupied or possessed by another. While consent is a defense to a claim of trespass, journalists who exceed the scope of consent by taking actions in abuse of the authorized entry or by going into places beyond where they have permission may be held liable. Reporters may face both civil liability and criminal prosecution when they trespass. It is important for journalists to remember, as one federal appellate court wrote in 1995, that “there is no journalists’ privilege to trespass.”28 What’s more, reporters don’t have the right to trespass on private property or even government-owned property. Reporters may face both civil liability and criminal prosecution when they trespass. A case illustrates the dangers of criminal trespass. Reporter Bryon Wells of the East Valley Tribune near Phoenix, Ariz., sought to interview a recently fired local police officer named Daniel Lovelace. Lovelace had been involved in a fatal shooting and was charged, at the time, with second-degree murder. Wells went through a closed but unlocked gate, posted with a “no trespassing” sign, and entered Lovelace’s fenced property. The reporter walked to the front door, rang the bell and was told by the woman who answered, Lovelace’s wife, to leave. Wells apparently left peacefully, but in 2004 a judge upheld Wells’ conviction for misdemeanor criminal trespass—he was fined $300 and sentenced to a year of probation—based on the incident.29 In upholding a ruling by a lower-court judge, Judge Michael D. Jones wrote that “reporters who are in violation of a criminal trespass statute are not exempt from prosecution simply because they are exercising a First Amendment right.” The Arizona criminal trespass law at issue provides: “A person commits criminal trespass in the first degree by knowingly . . . entering or remaining unlawfully in a fenced residential yard.”30 Not all reporters who enter private property uninvited are necessarily trespassing. Whether or not the owner or occupant of the property asks the reporter to leave is a critical factor. A woman who permitted a CBS television crew to accompany a crisis intervention team that entered her home was later unable to maintain that the visit had been a trespass, a court ruled.31 Also, the public is invited to visit some kinds of private property, and the press is a part of the public. ABC sent a camera crew to secretly film eye examinations being given to patients at an optical business. The exams were being administered in the portion of the business that was open to customers who wandered in seeking information, medication or other services. The 7th U.S. Circuit Court of Appeals rejected a trespass action brought by the owners of the property, saying that there was no invasion in this case of any of the interests that the tort of trespass is designed to protect, namely the use and enjoyment of one’s property without interference. The offices were open to anyone who sought ophthalmologic services offered by the business. The activity in the office was not disrupted; there was no invasion of anyone’s private space.32 Page 331 In a modern twist on trespass involving Google’s Street View program, a federal appellate court in 2010 in Boring v. Google, Inc.33 ruled in favor of a Pennsylvania couple who live on a private road posted with a sign reading “Private Road, No Trespassing.” As described by the appellate court, the Street View program “offers free access on the Internet to panoramic, navigable views of streets in and around major cities across the United States. To create the Street View program, representatives of Google attach panoramic digital cameras to passenger cars and drive around cities photographing the areas along the street.” The couple sued after they discovered that Google had taken “colored imagery of their residence, including the swimming pool, from a vehicle in their residence driveway months earlier without obtaining any privacy waiver or authorization.” In ruling in favor of the couple on their trespass claim, the 3rd U.S. Circuit Court of Appeals observed that “the Borings have alleged that Google entered upon their property without permission. If proven, that is a trespass, pure and simple.” The U.S. Supreme Court declined to hear the case in October 2010. Is it a trespass to photograph or film a person from above his or her home or other private property using a helicopter to get the desired images? It all depends on how high the chopper passes. Television newsmagazines often try to capture images of celebrity weddings using aerial shots taken from hovering helicopters. In a slightly different twist, a news helicopter hovered for 10 minutes above the home of Gail Bevers to obtain footage for a story about the poor condition of rental properties. Bevers, who was “scared to death” by the helicopter, sued for trespass. In 2002 a Texas appellate court hearing her case observed that “one of the key facts in ascertaining whether a flight through airspace constitutes a trespass is the altitude of the aircraft.”34 The court noted that while “landowners have no right to exclude overflights above their property because airspace is part of the public domain,” flights that are within the “immediate reaches of the airspace next to the land” and that also interfere substantially with the use and enjoyment of that land may constitute a trespass. In Bevers’ case, the court concluded “a single ten-minute hover over her property at 300 to 400 feet does not, as a matter of law, rise to the level of ‘substantial interference’ with the use and enjoyment of the underlying land.” The appellate court thus affirmed summary judgment for the media defendants. Is it a trespass to photograph or film a person from above his or her home or other private property using a helicopter to get the desired images? What if the reporter accompanies government officials, police or firefighters onto the property? Can these government agents give permission for the press to illegally enter private property? The simple answer is no. And the courts have ruled that not only are reporters potentially liable for damages in such a case, but the law officers themselves may be at risk for bringing reporters along. Page 332 In 1999 the Supreme Court of the United States unanimously ruled that when law enforcement officers permit reporters to accompany them when they enter private homes to conduct searches or arrests, the officers violate “the right of residential privacy at the core of the Fourth Amendment.” Two cases found their way to the high court. The first, Wilson v. Layne, resulted when members of a joint federal and local law enforcement task force invited a Washington Post reporter and photographer to accompany them when they arrested fugitives in Rockville, Md., just outside the nation’s capital. The other case, Hanlon v. Berger, involved agents of the U.S. Fish and Wildlife Service who invited reporters and photographers from CNN to accompany them as they searched the property of a Montana rancher for evidence that the property owner was illegally poisoning wildlife. The issue the Supreme Court focused upon was whether the government agents who brought the journalists onto the private property could be held responsible for civil rights violations; in other words, could the property owners sue the government agents for violating their Fourth Amendment rights against an illegal search? The government agents attempted to justify the invitations by arguing that such close-up coverage of their action would assist the public in understanding law enforcement problems and help the police in getting more public cooperation. “Surely the possibility of good public relations for the police is simply not enough, standing alone, to justify the ride-along intrusion into a private home,” Chief Justice William Rehnquist wrote for the court. The chief justice quoted an almost 400-year-old British court ruling in supporting the high court’s decision: “The house of everyone is to him as his castle and fortress, as well for his defence [sic] against injury and violence, for his repose.” But because the law concerning media ride-alongs had not been developed when these arrests took place, the high court ruled that it would be unfair to subject the police officers in this case to money damages for their behavior. The officers could not have clearly foreseen that what they did would be a violation of the Constitution.35 “Surely the possibility of good public relations for the police is simply not enough, standing alone, to justify the ride-along intrusion into a private home.” In this instance the court did not rule on the matter of the liability of reporters and photographers who enter private premises with the permission of police. The Berger case was remanded to the 9th U.S. Circuit Court of Appeals in light of the high-court ruling regarding the liability of the police.36 In an earlier decision, the Court of Appeals had ruled that, because of the extremely close cooperation between the journalists and the government agents who searched the Montana ranch, the television reporters and producers were actually “state actors” or “joint actors” with the wildlife agents and could be subject to the same kind of Fourth Amendment action brought against the federal officers.37 After the Supreme Court decision, the appellate court ruled that the journalists did not enjoy the kind of qualified immunity that had shielded the government agents in the Wilson case, reinstated Berger’s Fourth Amendment claim against the reporters, and also reversed a lower court’s dismissal of claims for trespass and the intentional infliction of emotional distress against the media defendants.38 In 2001 Paul Berger finally reached a confidential settlement agreement with CNN, bringing the case to a close for an undisclosed amount of cash.39 Page 333 In a 2010 case called Frederick v. Biography Channel,40 U.S. District Judge Milton Shadur refused to dismiss a complaint filed by two women over what the judge called a “highly disturbing” collaborative arrangement between the police in Naperville, Ill., and several media organizations, including the Biography Channel and A&E Television Networks. The media defendants worked very closely with the Naperville police to gather footage for a reality television show called “Female Forces”—including unflattering footage of the two women who filed the lawsuit, one of whom was being arrested and specifically objected to being filmed. The truly disturbing part is that after a Naperville officer detained the two women, he deliberately waited for the arrival of a camera crew that was assigned to film “Female Forces,” doing so for the express purpose of having the arrest filmed for the show. In other words, rather than readily and immediately arresting one of the two women who had an outstanding warrant, the officer delayed and stalled until the cameras arrived! Observing that “a symbiotic relationship between a governmental body and a private party” (in this case, the private parties were the Biography Channel and A&E Television Networks) can transform the private party into a government actor, Judge Shadur found that there actually was a formal contract between the City of Naperville and the media defendants. The bottom line is that by acting so closely with government officials (here, the Naperville police), the media defendants were transformed into government actors. The two women thus could proceed to sue the Biography Channel and A&E Television Networks for violating their Fourth Amendment right against unreasonable searches and seizures, just as was the case in Hanlon v. Berger. Reporters who want to enter private property need the permission of the occupant or the owner of the property. Reporters who want to enter private property need the permission of the occupant or the owner of the property. Police and firefighters are unable to give the press this permission. Reporters who are sent to cover demonstrations or protests that may stray onto nonpublic areas are advised to meet with the police beforehand and explain what they will be doing. They should carry full press credentials and obey all legitimate police orders. Reporters need to be careful not to interfere with police or have a verbal confrontation with officers who are attempting crowd control. Tensions run high, and the police often fear losing control of the situation. Student journalists sometimes face disorderly conduct charges in the line of duty. The Student Press Law Center reported that Ohio University photojournalist Nicolas Tanner was arrested in October 2012 for taking photos at the scene of a medical emergency in Athens, Ohio. According to the police complaint, Tanner interfered with paramedics trying to place an accident victim in an ambulance by “taking photos” and by refusing to get out of their way. He was charged with “obstruction & delay of public official/emergency person and resisting arrest.” Tanner pleaded not guilty and, according to the SPLC, claimed he told paramedics he “had the right to be there and the person in the gurney, that I couldn’t even see at that time, didn’t have any expectations of privacy.” When the police arrived, Tanner said “it was immediately apparent they were not there to help enforce the law, they were actually there to limit my right to shoot the scene.” Page 334 The SPLC reported that Mickey Osterreicher, general counsel for the National Press Photographers Association (NPPA), said the charges should be dropped and quoted Osterreicher for the proposition that “[y]ou have to be arrested on a lawful charge. He was obstructing and delaying a public official by taking photos? I have a real problem with that.” Osterreicher later wrote a letter to the chief of the Athens City Police Department on behalf of the NPPA, the SPLC and the Society of Professional Journalists requesting the charges be dropped. Three months later, in February 2013, the charges against Tanner were dismissed. Osterreicher told the SPLC he was pleased with the result, but was still very concerned about the chilling effect Tanner’s arrest might have on other photographers. There are myriad catchall laws in most cities and states, laws like interfering with an officer in the execution of his or her duty, that might be the basis for an arrest even if a trespass is not involved (see pages 335–336). When applied to the press, these laws might be unconstitutional,41 but such a ruling will not be made until weeks or months after the journalist has been arrested. HarassmentIn 1996 a federal judge in Pennsylvania took the extraordinary action of enjoining the news-gathering activities of two reporters who worked for the television infotainment program “Inside Edition.” Reporters Paul Lewis and Stephen Wilson were preparing a story on the high salaries paid to corporate executives at U.S. HealthCare while the company was imposing severe cost cutting on patients. The story focused on Leonard Abramson, board chair, and Abramson’s daughter and son-in-law, Nancy and Richard Wolfson, who also worked at U.S. HealthCare. The Wolfsons argued that the reporters used ambush interviews, shotgun microphones and other electronic equipment to harass them and invade their privacy after they rejected requests for on-camera interviews. The reporters went so far, the couple said, as to follow their daughter to school and to follow the entire family when they took a vacation in Florida. The Wolfsons sued the reporters for tortious stalking, harassment, trespass and invasion of privacy–intrusion upon seclusion, and asked the judge to stop the reporters from using the intrusive news-gathering techniques until a jury trial was held. The judge thought the Wolfsons would prevail in their lawsuit against the reporters. He said that through their unreasonable surveilling, hounding and following, the two news gatherers had effectively rendered the family captive in their own home. The judge entered a preliminary injunction that barred Lewis and Wilson from any conduct, with or without the use of cameras, that invades the Wolfsons’ privacy, actions including but not limited to harassing, hounding, following, intruding, frightening, terrorizing or ambushing the family.42 In 1997, the parties reached a settlement and the judge dissolved the preliminary injunction he had issued against “Inside Edition.” In 2009 Nicole Richie obtained a three-year restraining order from a Los Angeles judge against two photographers requiring them to stay at least 50 yards away from famous-for-being-famous Richie. She blamed the two men for causing a car crash in Beverly Hills and claimed she was frightened for her safety and that of her two children. Page 335 FraudFraud is a 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. Typically we think of sellers of goods as engaging in fraud when they lie to buyers about the quality of those goods. But can journalists be held liable for fraud when they try to obtain information by telling a lie? Imagine this scenario. A newspaper editor hears well-founded rumors that a local retail business is cheating its customers. To check out this story, two newspaper reporters apply for jobs at the business to take a look at what goes on inside. The pair use false names, fake work histories, and tell the business owners they are looking for work. They do not reveal they are newspaper reporters and will be spying on the other workers at the business. Are the reporters’ activities legal? In 1996 a jury in North Carolina decided that ABC television journalists had committed fraud and an assortment of other legal wrongs when they lied about their backgrounds and intentions in order to get jobs at a supermarket chain the network was investigating for potential health code violations. A damage award of $5 million was later reduced to all but nothing ($2) when a U.S. Court of Appeals ruled that the behavior of the two journalists did not meet the strict legal standard for fraud required by North Carolina statutes.43 But this high-profile case, which generated considerably more news coverage than the original ABC broadcast about the supermarket chain, brought into sharp focus the issue of reporters pretending to be people they are not in order to secretly gather news. In a different state with a different statute the fraud conviction might have been sustained. Indeed, in Minnesota just a year later, WCCO television and one of its reporters were found guilty of both fraud and trespass in a situation that mirrored the ABC case. In this instance the reporter lied about her background and her reportorial intentions when she applied for a position as a volunteer at a care facility for people with mental retardation. She secretly videotaped activities at the facility and portions of the tape were later telecast.44 An issue closely related to fraud is impersonation by journalists of government officials in order to obtain information. Such impersonation is prohibited by both federal and state law and the First Amendment provides no defense. For instance, journalist Avi Lidgi was sentenced in April 2002 to one-year probation and 60 hours of community service by a federal court for posing as both a federal prosecutor and a federal judge’s aide in order to obtain secret legal documents in an espionage case in Cleveland, Ohio.45 The 27-year-old journalist agreed to plead guilty to one count of impersonating a federal official after a grand jury had indicted him on three counts and he faced up to nine years in prison. Failure to Obey Lawful OrdersPolice and fire officials at the scene of disasters, accidents and fires frequently restrict the access of the press and public to the site. Reporters must respect these rules or face charges of disorderly conduct or worse. For instance, an Oakland Tribune photographer named Raymundo Chavez lost a lawsuit in 2009 claiming that his First Amendment rights were violated when he was arrested after he exited his car (in the fast lane, no less) on a freeway to take photographs of an automobile accident that had just happened. A police officer there advised Chavez that it was a crime scene and directed him to leave. In ruling against Chavez, U.S. District Judge Charles Breyer observed in Chavez v. City of Oakland that “the press has no First Amendment right to access accident or crime scenes if the general public is excluded.” Breyer added that Chavez failed to “cite a single supportive case with facts remotely similar to this case, that is, a case that suggests that police officers cannot stop a newspaper photographer from standing in the middle of the freeway to take photographs.” Page 336 Sometimes it is not always clear, however, whether police orders directed at reporters are indeed lawful. In 2011 a veteran journalist for a Fox TV station in Milwaukee was arrested for “resisting and obstructing an officer” as he videotaped a house fire while standing several feet behind a perimeter that police had taped off. According to a post on the Web site of the Reporters Committee for Freedom of the Press, journalist Clint Fillinger can be heard saying on the tape after he was asked to step further back, “But the public is out here. If the public is out here, I’m allowed to be out here.”46 Fillinger and his TV station considered the request unreasonable because Fillinger was asked to move away from the scene while the general public was allowed access. Both the National Press Photographers Association and the Wisconsin News Photographers Association wrote formal letters to the chief of the Milwaukee Police Department demanding that all charges be immediately dropped. The First Amendment thus does not give the press special rights of access to disaster scenes or protect reporters from arrest and disorderly conduct charges when they fail to obey lawful commands of police at accident scenes. But at least three states—California, Ohio and Oregon—have statutes that carve out some (although not complete) protection for journalists gathering news in certain situations. California, for example, allows “duly authorized” members of “any news service, newspaper, or radio or television station or network” to enter areas closed by law enforcement due to a “flood, storm, fire, earthquake, explosion, accident or other disaster,”47 while Oregon provides journalists with “reasonable access” to search and rescue areas.48 Grand juries work behind closed doors, and courts are very sensitive when anyone attempts to elicit information from the jurors about what has taken place. Any attempt to induce grand jurors to reveal secret testimony can surely be punished by the courts. Taping and RecordingMany other laws may directly affect news gathering. And the First Amendment does not offer a shield to reporters who violate these, either. For example, in most states and the District of Columbia, a reporter can secretly record a conversation or interview with a news source. These are known as one-party consent states, since only one party to the conversation (the journalist taping it) needs to know it is being recorded. While 38 states and the District of Columbia fall into this journalist-friendly, one-party consent category, a dozen states, including California, Pennsylvania and Florida, require reporters to obtain permission from all parties in a conversation before recording (all-party consent states).49 These laws prohibit anyone from secretly recording a conversation face-to-face, on the telephone or almost anywhere. For instance, California Penal Code Section 632 provides that a crime is committed by anyone (including a journalist) who Page 337 intentionally and without the consent of all parties [emphasis added] to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio. California courts have held that a “confidential communication” is one in which a party to the conversation has an objectively reasonable expectation that it is not being overheard or recorded.50 A violation occurs at the moment the recording is made, regardless of whether the material recorded is later published or aired. What law applies if a person calling from a one-party consent state records a conversation with a recipient who lives in an all-party consent state? In 2006, the Supreme Court of California held in Kearney v. Salomon Smith Barney that California’s all-party consent statute applied and controlled when a caller from Georgia (a one-party consent state) secretly recorded a conversation with a California resident.51 Maryland also holds that its all-party consent law controls when out-of-state callers record conversations.52 Journalists calling into all-party consent states are wise to get permission before taping. Nearly half the states and the federal government have laws prohibiting eavesdropping. A growing number of states also have statutes that prohibit secretly taking a video recording or still photograph of a person in a location where he or she has a reasonable expectation of privacy. These laws target video voyeurs, but they impact journalists and legitimate photographers. Anyone who hopes to practice journalism without violating the law needs to know the laws in his or her particular state that relate to news gathering. There are subtle differences among the state laws, and the statutes change from time to time. Awareness of the law is the best protection a reporter can have. A good resource on taping can be found online at the Reporters Committee for Freedom of the Press Web site at http://www.rcfp.org/reporters-recording-guide. Eavesdropping statutes often involve consideration of what constitutes a reasonable expectation of privacy in a conversation. For instance, the Michigan Supreme Court in Bowens v. Ary53 in 2011 considered whether that state’s eavesdropping statute was violated by the backstage recording of a conversation at a concert featuring performances by Dr. Dre, Snoop Dogg, Ice Cube and Eminem at Detroit’s Joe Louis Arena. The conversation in question involved discussions by police officials (the plaintiffs) with concert organizers regarding whether or not a sexually explicit video could be shown before a performance by Dre and Snoop. A tape of the conversation later was featured as “exclusive backstage footage” on a tour concert DVD, and the police officials sued. Michigan’s eavesdropping statute prohibits “any person who is present or who is not present during a private conversation [from] willfully us[ing] any device to eavesdrop upon the conversation without the consent of all parties thereto.” The key phrase is “private conversation”—there must be a private conversation in order for the statute to be violated. Page 338 In Bowens, the following were crucial facts in the Michigan Supreme Court’s conclusion that there was no reasonable expectation of privacy in the recorded conversation: 1) more than 400 people had backstage passes, including many members of the local and national media; 2) there were at least nine identified people in the room where the conversation was taped, plus unidentified others who were free to come and go from the room, and listen to the conversation, as they pleased; and 3) the plaintiffs who were recorded were aware that there were multiple camera crews in the vicinity, including a crew from MTV and a crew specifically hired by defendants to record backstage matters of interest. Because there was no reasonable expectation of privacy in the recorded conversations, the court ruled that Michigan’s eavesdropping statute was not violated. SUMMARY Gaining access to government-held information is a major problem for journalists and citizens alike. The law is not always helpful. Common law offers little assistance to people attempting to inspect government records. The U.S. Constitution was drafted when news gathering was not the central role of the press. There is little evidence that the right to gather news was intended to be guaranteed by the First Amendment. Federal courts have suggested that news and information gathering is entitled to some protection under the U.S. Constitution, but they have been stingy in granting such protection. The U.S. Supreme Court has limited the rights of reporters to gather information at prisons and jails to the same rights enjoyed by other citizens. Lower courts have found broader, albeit qualified, constitutional rights of access. Courts have not permitted, however, the use of the First Amendment to immunize reporters from legal consequences that result when the law is broken while news is being gathered. Many plaintiffs find it is easier to sue the press for how the news has been gathered than for libel or invasion of privacy. Suits for trespass, fraud, misrepresentation, failure to obey lawful orders and other causes of action are common. THE FREEDOM OF INFORMATION ACT Neither common law nor the Constitution has provided the clear and well-defined right of access to government information that most citizens believe is needed. Beginning in the early 1950s, there were concerted efforts by press and citizen lobbying groups to pass statutes that guarantee to public and press alike the right to inspect records and other information held by the government and to attend meetings held by public agencies. These laws now exist in almost every state. In addition, there are federal open-records and open-meetings laws. Let us look at the federal legislation first. In 1966, after many years of hearings, testimony and work, Congress adopted the Freedom of Information Act (FOIA), which was ostensibly designed to open up records and files long closed to public inspection. The documentary evidence left by Congress relating to the passage of this measure leaves little doubt that the purpose of this bill was to establish a general philosophy of the fullest possible disclosure of government-held records. The Senate Report’s Purpose of the Bill section quotes James Madison: Page 339 Knowledge will forever govern ignorance, and a people who mean to be their own governors, must arm themselves with the power knowledge gives. A popular government without popular information or the means of acquiring it, is but a prologue to a farce or a tragedy or perhaps both.54 Both the public and the press have accepted this philosophy. Now nearly 50 years old, FOIA provides a powerful tool for investigative journalists. For example, the Memphis Commercial Appeal scored a victory in 2013 using FOIA when it reached a settlement with the FBI over documents related to Ernest Withers. Withers was a famous African-American photographer who captured iconic black-and-white images of many pivotal battles in the civil rights movement in the South during the 1950s and 1960s, such as the Little Rock Central High School integration battle. It also turned out, as the newspaper discovered, that Withers was a paid FBI informant during much of this time period. The newspaper entered into an expensive and protracted battle with the FBI to obtain records regarding Withers’ relationship with the FBI, including his informant file. The settlement came after a federal judge forced the FBI, which would neither admit nor deny Withers’ service, to concede that he had been its informant. Under the settlement, the FBI agreed to: 1) pay $186,000 in legal fees spent by the Commercial Appeal; and 2) produce files from the National Archives and Records Administration, instead of from the FBI. The disclosure is expected to include many records and photos that, according to Chris Peck, the newspaper’s editor, “clearly will help Americans better understand the complicated role the FBI played in the Civil Rights era.” Attorney Chuck Tobin, who represented the paper, said “the FBI fiercely fought the newspaper on grounds that it needed to maintain absolute secrecy for the confidential informant program. The settlement was a creative and historic way to let the secret Withers documents reach the public, so that we will know a lot more about why and how the FBI spied on the civil rights protestors.” In 2012 the Wall Street Journal used FOIA to uncover records related to the powers of the National Counterterrorism Center (NCTC) and the huge clash over this counterterrorism program within the Obama administration. The NCTC was given vast power by the Obama administration to examine government files on U.S. citizens for possible criminal behavior, even if there is no reason or probable cause to suspect them of any wrongdoing. As the Wall Street Journal reported in December 2012, “the agency has new authority to keep data about innocent U.S. citizens for up to five years, and to analyze it for suspicious patterns of behavior. Previously, both were prohibited.” Also in 2012, the Associated Press used FOIA to uncover records in the extensive FBI file kept on Marilyn Monroe. As the AP reported in December 2012, the files revealed “the names of some of the movie star’s communist-leaning acquaintances who drew concern from government officials and her own entourage.” The AP added that “Monroe’s file begins in 1955 and mostly focuses on her travels and associations, searching for signs of leftist views and possible ties to communism.” You can read more about the Monroe file at http://bigstory.ap.org/article/fbi-removes-many-redactions-marilyn-monroe-file. Page 340 Any citizen can make a FOIA request, not just journalists. In 2009, for instance, the National Security Archive at George Washington University filed FOIA requests with the Department of Defense on behalf of some famous recording artists, including Pearl Jam and Trent Reznor. What did the musicians want? They sought records revealing which artists’ music was being used as an interrogation technique at Guantanamo and other detention centers. Based upon previously released documents, as well as testimony of prisoners and guards about the type of loud music that was played during interrogations, the FOIA requests made specific reference to music by Nine Inch Nails, Rage Against the Machine, Red Hot Chili Peppers and Limp Bizkit. The artists filing the FOIA request were upset that their music might be used to torture detainees. How many FOIA requests collectively do all federal agencies receive? There were a whopping 651,254 requests made in fiscal-year 2012, according to data collected by the Department of Justice and available at http://www.foia.gov/index.html. That’s an increase of more than 53,000 requests in just two years since fiscal-year 2010. As described later in this unit in greater detail, government agencies must answer FOIA requests for documents within 20 days after they are received. But FOIA fights for documents can prove to be both lengthy and expensive—even if they ultimately are successful—when an agency denies a request. For instance, in October 2012 a federal judge in San Francisco ordered the Department of Justice and the FBI to pay investigative journalist and author Seth Rosenfeld more than $470,000. That’s how much Rosenfeld spent on attorneys’ fees and litigation costs in two successful and long-running lawsuits he filed against the FBI to obtain under FOIA records relating to the 1960s protest movement at the University of California, Berkeley. Those documents included records demonstrating the FBI’s surveillance of students and faculty and records involving Ronald Reagan’s relationship with the FBI when Reagan was California governor. Under FOIA, a court may order federal agencies to pay the reasonable attorneys’ fees and other litigation costs incurred in cases in which the plaintiff (the person seeking records) has substantially prevailed. Courts are not required, however, to award prevailing plaintiffs attorneys’ fees and litigation costs. They have discretion to do so and typically consider and weigh four factors in deciding if such an award is appropriate. Those four factors are: 1) the public benefit resulting from FOIA disclosures in the case; 2) the commercial benefit to the prevailing plaintiff resulting from the disclosures; 3) the nature of the plaintiff’s interest in the disclosed records (scholarly? journalistic? public-oriented?); and 4) whether the government’s rationale for withholding the records had a reasonable basis in law or whether it simply denied the request to avoid embarrassment or to frustrate the requester. Applying those factors, Judge Edward Chen ruled in favor of Rosenfeld, noting on the second factor that although Rosenfeld may have had a financial incentive in writing a book based on the records, the “mere intention to publish a book does not necessarily mean that the nature of the plaintiff’s interest is purely commercial.” As for the $470,000 awarded by Judge Chen, it ultimately did not go into Rosenfeld’s pockets, but went to the firms of his attorneys who successfully fought the lawsuits over the course of more than two decades. Rosenfeld’s lawsuits also illustrate just how time consuming and expensive FOIA litigation can be for those who find their records requests denied by government agencies. Attorney David Greene stuck with Rosenfeld throughout his battles. Page 341 WHAT HAPPENS WHEN THE GOVERNMENT LIES? When the government lies in court about the very existence of records in order to prevent their release, federal judges become rightfully upset and award fees to the requesting party. Such was the case in November 2011 in Islamic Shura Council of Southern California v. FBI55 when U.S. District Judge Cormac J. Carney held that the FBI must pay the Islamic Shura Council of Southern California’s attorneys’ fees in a long-running battle over access to FBI records documenting the surveillance and monitoring of the Islamic Shura Council’s activities. Judge Carney wrote that “the Court must impose monetary sanctions to deter the Government from deceiving the Court again,” and added that “[p]arties cannot choose when to tell the Court the truth. They must be truthful with the Court at all stages of the proceedings if judicial review is to have any real meaning. And the Court rejects the Government’s suggestion that it initially had to deceive the Court to protect national security.” He blasted the FBI, opining that “the Government’s deception of the Court was without any factual or legal basis and simply wrong.” In December 2011 Judge Carney ordered the FBI to pay the plaintiffs a $36,248 in reasonable attorneys’ fees. APPLYING THE LAW The usefulness of any freedom of information act depends in no small part on the way the government chooses to interpret and apply it. Some observers said that George W. Bush had a greater penchant for secrecy than any recent president. The terrorist attacks in New York and Washington, D.C., and the subsequent move to tighten homeland security had an immediate impact on the application of the federal freedom of information law. In October 2001 then–Attorney General John Ashcroft ordered all agencies covered by the law to review more closely which documents they release under the law. Upon taking office in 2009, President Barack Obama issued a memorandum suggesting his administration would bring new openness to government and, in particular, to how it responds to FOIA requests. He declared: The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails. The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve. In responding to requests under the FOIA, executive branch agencies (agencies) should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public.56 Page 342 The early results of Obama’s rhetoric of transparency were spotty, at best. The nonprofit National Security Archive (NSA) at George Washington University reported in 2010 that despite President Obama’s and Attorney General Eric Holder’s 2009 memoranda calling for reform in how government agencies administer the FOIA, an audit conducted by the NSA found that: (1) ancient requests—some as old as 18 years—still persisted; (2) only a minority of agencies had responded to the Obama and Holder memos with concrete changes in their FOIA practices; and (3) only four out of 28 agencies reporting, including Holder’s own Justice Department, showed releases of government records up and denials down under the FOIA. How long can delays last under the Obama administration? More than five years, as one recent case illustrates. In May 2013, the 4th U.S. Circuit Court of Appeals in Coleman v. Drug Enforcement Administration57 considered a February 2008 FOIA request filed by John Coleman with the DEA seeking documents regarding the regulation of a muscle-relaxant drug called carisoprodol. The case illustrates the stonewalling tactics used by some agencies. Specifically, the court noted that “despite a statutory mandate requiring agencies to respond to FOIA requests and appeals within 20 working days, the DEA took more than 16 months to respond to Coleman’s request, eventually denying it for failure to prepay the assessed processing fee. The Department of Justice’s Office of Information Policy then took over seven months to act on Coleman’s appeal of the DEA’s fee determination, ultimately remanding the request back to the DEA for reconsideration. Coleman waited almost five more months for subsequent DEA action. Finally, after nearly two-and-a-half years . . . Coleman filed this action against the DEA seeking production of the documents he originally requested.” Ripping into the DEA and ruling for Coleman, the court scathingly wrote that nothing “excuses what happened here, namely the agency’s maintenance of complete and utter silence for periods vastly exceeding at every juncture the statute’s requirement of a prompt response. Nowhere in FOIA did Congress contemplate government sitting on its hands for months at a time and doing nothing. The time has come for Coleman to receive resolution of his request of February 29, 2008.” A blow to access advocates came when former President George W. Bush signed into law the Homeland Security Act of 2002.58 One of the most controversial provisions of this law is known as the Critical Information Infrastructure Act. It makes exempt from FOIA, as well as state and local disclosure laws, so-called critical infrastructure information that is voluntarily submitted to the federal government—specifically, to the Department of Homeland Security (DHS)—by private people and, more notably, business entities. What is the problem with this? As the San Francisco Chronicle opined in an editorial, the law “allows private parties to hide information about ‘critical infrastructure’—including concerns about health and safety—simply by submitting the data voluntarily to the new department. The information could apply to privately operated power plants, bridges, dams, ports or chemical plants.”59 The new law also keeps private the name of the person or entity submitting the information. Page 343 The result, as Sen. Patrick Leahy (D-Vt.) observed, is the “most severe weakening of the Freedom of Information Act in its [then] 36-year history” and “a big-business wish-list gussied up in security garb.” In particular, the act encourages businesses to submit information concerning critical infrastructure information—defined broadly to include “information not customarily in the public domain and related to the security of critical infrastructure or protected systems”—not only by making that information exempt from FOIA and state disclosure laws but also by granting those companies immunity from “any civil action arising under Federal or State law if such information is submitted in good faith.” It creates criminal penalties for anyone who discloses the submitted information. The potential for abuse is clear: Companies may file information with the government to keep it out of the hands of the press and to shield themselves from lawsuits arising from wrongdoing that information otherwise exposes. High-level policy decisions are not the only reason freedom of information laws often fail to work as they were intended. For instance, in 2009 President Obama reneged on his promise of transparency when he signed into law a bill called the Protected National Security Document Act of 2009 that blocks the release of photos that depict the abuse of detainees held in U.S. custody. In particular, the Secretary of Defense can suppress all records that relate “to the treatment of individuals engaged, captured or detained after September 11, 2001, by the Armed Forces of the United States in operations outside of the United States” if the Secretary of Defense certifies that “disclosure of that record would endanger citizens of the United States, members of the United States Armed Forces or employees of the United States Government deployed outside the United States.” In light of that new law, the U.S. Supreme Court vacated a lower court ruling that had ordered the Department of Defense to turn over to the ACLU 44 detainee-abused photographs it had sought under a FOIA request. In brief, the new measure allows the Secretary of Defense to trump FOIA. Perhaps most controversially, the Obama administration in 2011 refused to release graphic photographs and video from the raid by Navy SEALs in Abbottabad, Pakistan, that killed Osama bin Laden. The battle over photos and videos depicting the dead body of bin Laden and his burial at sea heated up in 2013 when an organization called Judicial Watch argued before the U.S. Court of Appeals for the District of Columbia that it was entitled to them under the Freedom of Information Act. Specifically, Judicial Watch appealed a 2012 ruling by a federal judge in Judicial Watch v. Dept. of Defense60 that denied it access to 52 different photos and videos possessed by the Central Intelligence Agency. The CIA cited FOIA Exemption 1 (national defense and security) as a primary reason for not releasing the images, asserting their release “reasonably could be expected to inflame tensions among overseas populations that include al-Qaida members or sympathizers, encourage propaganda by various terrorist groups or other entities hostile to the United States, or lead to retaliatory attacks against the United States homeland or United States citizens, officials, or other government personnel traveling or living abroad.” Judge James Boasberg agreed. He decided not to overturn the CIA’s determination, reasoning that Judicial Watch only offered “speculation that these executive-branch officials made an overcautious assessment of the risks involved. FOIA permits an agency to withhold properly classified information in the interest of national security; as the CIA has established that the records Judicial Watch seeks were properly classified, the Court will not order them released.” Page 344 During the appellate court argument in January 2013, Judicial Watch’s attorney argued that Judge Boasberg failed to separately consider the possible impact of each of the 52 photos and videos and instead lumped them together. The attorney suggested that some of the images might not be so graphic or gruesome as to lead to the violence forecasted by the CIA, citing the government’s own claims that it gave bin Laden a somber and dignified burial at sea. But in May 2013, the U.S. Court of Appeals for the District of Columbia ruled in favor of the government, concluding that the 52 post-mortem images of bin Laden were properly classified as “top secret” by the CIA and thus were exempt from disclosure under FOIA. The appellate court reasoned that “the CIA’s declarations give reason to believe that releasing images of American military personnel burying the founder and leader of al Qaeda could cause exceptionally grave harm.” ONCE DENIED, TWICE TRIED: DUPLICATIVE FOIA REQUESTS BY DIFFERENT PEOPLE Imagine that Mr. Curley makes a FOIA request for specific records from a government agency and the agency denies the request. Then, after suing the agency for the records, Mr. Curley’s request is rejected by a federal judge. Now Mr. Schultz, who has no legal relationship to Mr. Curley and who did not control, finance or otherwise participate in Mr. Curley’s unsuccessful lawsuit for the records, files his own separate FOIA request seeking the same documents from the same agency. Is Mr. Schultz’s request automatically precluded and denied because Mr. Curley lost an earlier court battle for the same records? No, according to a 2008 U.S. Supreme Court ruling.61 The outcome of the earlier lawsuit does not bar a repetitive request by a different person who has no legal relationship with the party who litigated the first case and who did not control or participate in that earlier suit. In allowing for such duplicative requests by independent people, the Supreme Court wrote that “our decisions emphasize the fundamental nature of the general rule that a litigant is not bound by a judgment to which she was not a party.” Page 345 FOIA AND ELECTRONIC COMMUNICATION By 2000 the vast majority of government records were created, transported and stored electronically. As computer technology replaced paper records, agencies within the federal government balked at allowing access to these electronic records. Most bureaucrats seemed to hold the opinion that the electronic records were a special class of data, outside the range of FOIA and off limits to the public.62 figure A LOOK INSIDE THE FBI’S ONLINE “VAULT” OF FILES: FROM WHITNEY HOUSTON TO JOE PATERNO Interested in finding out if the FBI had a file on a certain celebrity or famous figure? In some cases, finding such documents is as simple as visiting the FBI’s “Vault” Web site at http://vault.fbi.gov. You can check out recently added files at http://vault.fbi.gov/recently-added. Just because a celebrity has an FBI file does not mean the celebrity was being investigated for doing something wrong. In many cases, the FBI opened files because the celebrities had received threats. For instance, the FBI’s file on the late Penn State football coach Joe Paterno includes multiple threats he received in the 1970s and 1980s, including one letter from a disgruntled University of Pittsburgh fan stating that “Penn State plays a pussy football schedule” (see page 681 of the 872-page Paterno file at http://vault.fbi.gov/joe-paterno/joe-paterno-part-01-of-01/view). In 2013, the FBI added to its electronic vault files on a number of deceased individuals, including: former “60 Minutes” journalist Mike Wallace (“a foreign counterintelligence file opened about Wallace’s 1970 trip to Cuba”); singer Whitney Houston (“this release consists of several FBI investigations into threats made against Houston between 1988 and 1999”); and astronaut Neil Armstrong (“18 pages of FBI file references to Armstrong ranging from 1969 to 1985 relating primarily to requests for FBI name checks in consideration of executive appointment; no derogatory personnel information was found”). In 2012, the FBI released its file on Wu-tang Clan member Russell Tyrone Jones, better known as “Ol’ Dirty Bastard” (“the FBI looked into the group’s activities under criminal enterprise statutes but no charges were filed based on these investigations. The file ranges from 1999 to 2004”). In 1996 Congress adopted an amendment to the Freedom of Information Act that requires government agencies to apply the same standards of disclosure to electronic records that they have always applied to paper documents. This includes all e-mail correspondence as well as letters or notes. The Electronic Freedom of Information Act, as codified at 5 U.S.C. § 552 and known as e-FOIA, also establishes priorities that the agencies must apply when faced with multiple requests for computer searches for records. Top priority goes to FOIA requests in which a delay would threaten the life or safety of an individual. Next in line comes the news media and others in the business of disseminating information to the public. The new law also requires agencies to publish an online index of the documents they have and to make a reasonable attempt to provide documents in the requested format, that is, on tapes, diskettes, paper and so on. The law does not, however, define electronic information, instead leaving this important question to federal agencies and the courts. Page 346 What about e-mail and BlackBerry records of people working in the White House? In 2010, after a protracted legal battle that started during the Bush administration, the Obama administration issued letters to the attorneys for both the National Security Archive at George Washington University and the organization Citizens for Ethics and Responsibility in Washington outlining new procedures for capturing and preserving e-mail records for people working in the Executive Office of the president using an EmailXtender system.63 During the Bush administration in 2007, whistle-blowers with knowledge of the White House computer system alleged that the unclassified White House e-mail system had not archived e-mail systematically since 2002, and that at least five million e-mail messages were missing from the period of March 2003 through October 2005. REFORMING FOIA: THE OPEN GOVERNMENT ACT OF 2007 In December 2007 President Bush signed the first major amendments to FOIA in many years. The Openness Promotes Effectiveness in Our National Government Act of 2007 (OPEN Government Act) did not alter the nine FOIA exemptions described in this chapter. Instead, it made several reforms designed to expedite processing of FOIA requests; help requesters more easily obtain better information about the status of their requests; and hold federal agencies more accountable if they fail to timely respond to requests. Specific changes included figurerequiring government agencies to assign a tracking number for each FOIA request that will take more than 10 days to process and to establish a phone number or an Internet site to help requesters check the status of their requests. figurepenalizing agencies that fail to timely comply with the 20-day window in which to respond to a FOIA request by not allowing those agencies to charge any search and duplication fees related to that request unless there are “unusual or exceptional circumstances” that justify the delay. figureallowing recovery of attorney fees and litigation costs to FOIA requesters who substantially prevail in FOIA lawsuits against government agencies if the requester either wins a court order for the records sought or if the government agency, in the midst of the lawsuit, voluntarily decides to stop fighting the request and to provide the records. In 2009, the U.S. Court of Appeals for the D.C. Circuit held in Summers v. Department of Justice that the OPEN Government Act of 2007 does not apply retroactively when it comes to awarding attorney fees and litigation costs to prevailing plaintiffs challenging a FOIA denial. figurecreating the Office of Government Information Services (OGIS) to serve as an ombudsperson and to mediate FOIA disputes as a nonexclusive alternative to litigation, including issuing advisory opinions if mediation does not resolve a dispute. The OGIS also is charged with both reviewing compliance by government agencies with FOIA’s rules and making recommendations to Congress and the president on how to improve FOIA. OGIS officially opened in September 2009. In March 2011, OGIS issued a report detailing its activities during its first full year of operations. The report, which is available at http://www.archives.gov/ogis/reports/building-bridges-report.pdf, asserted that OGIS “handled 391 cases, the majority of which did not rise to the level of a dispute. Of the 83 cases involving disputes between FOIA requesters and 24 departments and agencies, OGIS resolved a majority—more than four out of five cases ended with the requester and the agency reaching an agreement. But for OGIS, most of these customers would not have received help.” In addition to these highlights, other reforms brought about by the OPEN Government Act of 2007 are described later in this chapter. Page 347 FOIA LAWSUITS AND COLLECTING ATTORNEYS’ FEES: TIMING IS EVERYTIHNG In 2010 the U.S. Court of Appeals for the District of Columbia held that the OPEN Government Act of 2007’s rule allowing recovery of attorneys’ fees by records requestors who file a lawsuit that results in “a voluntary or unilateral change in position by” a government agency to disclose records does not apply retroactively simply because a case that began before the law was adopted later settled after the law took effect. Under the OPEN Government Act of 2007, at least four events must occur before a government agency is liable for attorneys’ fees: (1) the plaintiff files a FOIA request with the agency; (2) the agency fails to disclose requested records; (3) the plaintiff then sues for the records; and (4) the agency voluntarily or unilaterally changes its position regarding those same records and provides them to the requestor. In Judicial Watch, Inc. v. Bureau of Land Management,64 all four of these events took place before the 2007 act became law, but the parties did not officially settle their litigation until after the change in the law. The appellate court thus addressed the issue of whether the 2007 act applies when a government agency unilaterally discloses the requested records before the 2007 act’s enactment but the parties’ formal settlement comes afterwards. It held that application of the 2007 act to these facts would have impermissible retroactive effects, reasoning that “because the disclosure came before the 2007 Act took effect, application of the new law here would be retroactive.” It added that, pursuant to the four steps noted above, “the disclosure [of the records] was last in the chain of events relevant to Judicial Watch’s eligibility for attorneys fees under the new law, and it took place months before the law’s enactment.” In brief, settling the case after the new act took effect made no difference and did not help Judicial Watch in its efforts to collect attorneys’ fees because the records in question were turned over before the 2007 act became law. Page 348 AGENCY RECORDS The broad outlines of the federal Freedom of Information Act, the nine areas of exempted information, and suggested ways in which a journalist or citizen can use the law are sketched out in the next few pages. One can write an open-records law in two basic ways. The first way is to declare that the following kinds of records are to be accessible for public inspection and then list the kinds of records that are open. The second way is to proclaim that all government records are open for public inspection except the following kinds of records and then list the exceptions. Congress approved the second kind of law in 1966, and it went into effect in 1967. The law has been amended several times, with substantial changes being enacted in 1974, 1976, 1986 and 1996, as well as in 2002 with the adoption of the Homeland Security Act, which directly affects FOIA. FOIA was amended in 2007 when, as noted in the preceding box, President Bush signed into law the OPEN Government Act of 2007. What Is an Agency? The U.S. Freedom of Information Act gives any person access to all the records kept by all federal agencies, unless the information falls into one of nine categories of exempted material. An agency has been defined under the law as any executive department, military department, government corporation, government-controlled corporation or other establishment in the executive branch of government (including the executive office of the president), or any independent regulatory agency. The law governs records held by agencies in the executive branch of government and all the independent regulatory agencies like the Federal Trade Commission (FTC), the Federal Aviation Agency, the Nuclear Regulatory Commission, the Social Security Administration and the Securities and Exchange Commission. The law does not cover records held by Congress or the federal courts. Some agencies associated with the executive branch of government also fall outside the purview of the law. In 1985 the U.S. Court of Appeals for the District of Columbia Circuit ruled that the Council of Economic Advisors, which works closely with the president on economic matters, is not covered by the law because it exists solely to advise and assist the president and makes no policy on its own. The agency has no regulatory power; it cannot issue rules or regulations. Although FOIA does govern some operations in the executive office of the president, the law does not reach “the president’s immediate personal staff or units in the executive office whose sole function is to advise and assist the president,” the court ruled.65 The law does not cover records held by Congress or the federal courts. A couple of quasi-governmental entities raise interesting questions as to whether they are agencies subject to FOIA. The Smithsonian Institution in Washington, D.C., for instance, is not a government agency and is not subject to FOIA, even though the vast majority of its budget comes from taxpayer dollars. After financial scandals and spending problems rocked the museum, however, a bill was introduced in Congress in 2008 to make it a government agency. To address these concerns and to fend off legislation, the Smithsonian responded in November 2008 by holding what The New York Times described as its “first public board meeting in its 162-year history . . . as part of its new commitment to openness and accountability.”66 The Smithsonian also formally adopted in January 2009 a new policy, patterned after FOIA, to allow for the disclosure of more records. Page 349 In contrast to the Smithsonian, the U.S. Postal Service is considered a government agency and features its own FOIA Web site at http://www.usps.com/foia. Although Amtrak (the National Railroad Passenger Corporation) is a private corporation operated for profit and is not technically a government agency, it too is subject to FOIA, under provisions of the Rail Passenger Service Act. On the other hand, the Corporation for Public Broadcasting, a private, nonprofit corporation that was created by Congress in 1967, is not subject to FOIA. What Is a Record? Congress did not specify the physical characteristics of a record in the Freedom of Information Act. Certainly records are paper documents, e-mail and other computer-generated material.67 But the term “record” also includes films, tapes and even three-dimensional objects such as evidence in a criminal prosecution. The FOIA statute provides that a record includes information “maintained by an agency in any format, including an electronic format.” Importantly, the OPEN Government Act of 2007 expanded the description of a record to also include information “maintained for an agency by an entity under government contract.” This change is key: It means that records held by outside private contractors working for the government are subject to FOIA requests. Records held by outside private contractors working for the government are subject to FOIA requests. What Is an Agency Record? “Agency” has been defined under the law; so has “record.” What is an agency record? It is not, unfortunately, simply a combination of the definition of these two terms. In this case the whole, the term “agency record,” involves a good deal more than the sum of its parts. Courts have established the following definition of an agency record: If the 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 very likely an agency record. If the agency has created the document but does not possess or control it, it is not an agency record. If the agency merely possesses the document but has not created it, it might be an agency record, or it might not. If the agency came into possession of the document as a part of its official duties, it is probably an agency record. If it just happens to have the document, it is probably not an agency record. In 2009 U.S. District Judge Royce C. Lamberth held that White House visitor logs are public records subject to FOIA since they are under the legal “control” of a government agency, U.S. Department of Homeland Security (DHS), even if they are transferred to the White House or the Office of the Vice President and destroyed or deleted from DHS’ internal files.68 The Secret Service, which actually creates the records, is a division of DHS. Judge Lamberth also concluded that the logs do not fall within the scope of the presidential communications privilege and thus are not shielded from disclosure by FOIA Exemption 5 (see pages 354–357). In an earlier ruling in the same case,69 he articulated four factors relevant in determining if an agency exercises sufficient “control” over a document to render it an “agency record”: Page 350 1.The intent of the document’s creator to retain or relinquish control over the records. 2.The ability of the agency to use and dispose of the record as it sees fit. 3.The extent to which agency personnel have read or relied upon the document. 4.The degree to which the document was integrated into the agency’s record system or files. Despite this ruling and in yet another troubling sign that President Obama’s pledge of a new era of transparency in government was merely rhetoric and not reality, the Justice Department in 2010 continued to argue in a long-running dispute with a public-interest group called Judicial Watch that White House visitor logs held by the Secret Service are not subject to disclosure under the Freedom of Information Act. In August 2013, however, the U.S. Court of Appeals for the District of Columbia ruled in Judicial Watch v. Secret Service that White House logs are not agency records and thus are not subject to FOIA. It wrote that “Congress made clear that it did not want documents like the appointment calendars of the President and his close advisors to be subject to disclosure under FOIA. Granting Judicial Watch’s request for certain visitors records, however, could effectively disclose the contents of those calendars.” FOIA EXEMPTIONS A document or tape or file that has been determined to be an agency record accessible via the Freedom of Information Act may still be withheld from public inspection if it properly falls into one of the nine categories of exempted material. Please note, federal agencies are not required to withhold documents from disclosure simply because they are included in an exempted category.70 The law basically says they may withhold such material. The nine exemptions outlined in the following pages are fairly specific, yet not specific enough to be free from substantial judicial interpretation. How a judge defines a word or phrase in these exemptions can result in a significant change in the meaning of the law and can lead to either expanded public access or, more likely in recent years, substantially reduced public access. We will examine each exemption separately, try to outline its meaning, and briefly explore case law that illuminates how the exemption is applied. It is important to remember that in light of the war on terror it is likely that many of these exemptions will be viewed even more broadly by government agencies and the courts. Federal agencies are not required to withhold documents from disclosure simply because they are included in an exempted category. Page 351 Which of the following exemptions are used most by government agencies and departments? As has been the case for many years, the FOIA exemption cited most often in 2009 was Exemption 6 to protect matters of personal privacy. Exemption 7(C), which also protects personal privacy, was the next most frequently used exemption. Exemption 5 was applied the third highest number of times. EXEMPTIONS TO DISCLOSURE UNDER THE FREEDOM OF INFORMATION ACT 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 7.Law enforcement records 8.Financial institution materials 9.Geological data National Security Exemption 1: Matters specifically authorized under criteria established by an executive order to be kept secret in the interest of national defense or foreign policy and in fact properly classified pursuant to such an executive order. This exemption deals with a wide range of materials, but primarily with information related to national security and national defense, intelligence gathering and foreign relations. The system has a three-tier classification. Material, the release of which could reasonably be expected to damage national security, is classified as “confidential,” the lowest level of classification. The “secret” classification is used to shield material that if disclosed could be expected to cause serious damage to national security. “Top secret,” the highest level of classification, is reserved for material that if revealed could be expected to cause exceptionally grave damage to national security.71 Although government agencies have the burden to justify nondisclosure under any FOIA exemption, courts applying Exemption 1 give substantial deference and weight to agency affidavits implicating national security. In fact, they rule in favor of the government on Exemption 1 if an agency’s affidavits (1) describe justifications for nondisclosure in reasonably specific detail; (2) demonstrate the information withheld logically falls within the claimed exemption; and (3) are not contradicted by evidence in the record or by evidence of agency bad faith. Applying this test in 2006, a federal judge held that the Department of Defense was protected under Exemption 1 from disclosing photographs of past and present detainees at the U.S. facility at Guantanamo Bay, Cuba. Among other things, the judge accepted the government’s claim that public disclosure of the photos “would both increase the risk of retaliation against the detainees and their families and exacerbate the detainees’ fears of reprisal, thus reducing the likelihood that detainees would cooperate in intelligence-gathering efforts.”72 Page 352 Housekeeping Practices Exemption 2: Matters related solely to the internal personnel rules and practices of an agency. In 2011 the U.S. Supreme Court ruled that Exemption 2, which protects from disclosure material that is “related solely to the internal personnel rules and practices of an agency,” could not be used by the Department of the Navy to suppress the release of data and maps relating to a naval base where explosives and weapons are stored in Puget Sound, Washington. The Navy had refused to release the data, alleging that disclosure would threaten the security of the base and surrounding community. The court reasoned in Milner v. Department of the Navy73 that, as used in Exemption 2, “an agency’s ‘personnel rules and practices’ are its rules and practices dealing with employee relations or human resources” and that “all the rules and practices referenced in Exemption 2 share a critical feature: They concern the conditions of employment in federal agencies—such matters as hiring and firing, work rules and discipline, compensation and benefits.” Thus, under what the court called the “plain meaning” of the words in Exemption 2, the maps and data requested did not qualify for withholding under that exemption. Rather than use Exemption 2, the court added, “the Government has other tools at hand to shield national security information and other sensitive materials. Most notably, Exemption 1 of FOIA prevents access to classified documents.” The 2011 ruling in Milner was important because it gave a very narrow reading and interpretation to Exemption 2 and put an end to the federal government using it more broadly to try to suppress disclosure of records that would significantly risk circumvention of federal agency functions. Some lower courts had adopted such an expansive interpretation (known as a “High 2” interpretation), but the high court’s ruling in Milner specifically rejected it. In May 2011, the Justice Department issued an extensive guidance report on how Exemption 2 should be interpreted in light of the Milner ruling. That report is available at http://www.justice.gov/oip/foiapost/2011foiapost15.html. Statutory Exemption Exemption 3: Matters specifically exempted from disclosure by statute (other than section 552b of this title), if that statute—(A) (i) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or (ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld; and (B) if enacted after the date of enactment of the OPEN FOIA Act of 2009, specifically cites to this paragraph. This exemption was amended in 2009 to add an extra requirement, namely the portion set forth after “(B)” above mandating that statutes enacted after the date of the OPEN FOIA Act of 2009 (October 28, 2009) must specifically cite to Exemption 3 of the FOIA in order to qualify under Exemption 3. The amendment thus imposes an additional hurdle for exemption for any news laws enacted today. Such statutes must satisfy both part “(A)” and part “(B)” in order to qualify for nondisclosure under Exemption 3. This exemption is designed to protect from disclosure information required or permitted to be kept secret by scores of other federal laws. A wide range of records fall under this exemption, including Census Bureau records, public utility information, trade secrets, patent applications, tax returns, bank records, veterans benefits and documents held by both the CIA and the National Security Agency. Page 353 Courts generally ask three questions when determining whether Exemption 3 applies to a specific record or document: 1.Is there a specific statute that authorizes or requires the withholding of information? 2.Does the statute designate specific kinds of information or outline specific criteria for information that may be withheld? 3.Does the record or information that is sought fall within the categories of information that may be withheld? If all three questions are answered yes, disclosure can be legally denied. Via congressional action and numerous court rulings the CIA has managed to use this exemption to almost completely shield its operations from public scrutiny. In 1984 Congress voted to exempt all CIA operational files from release under the Freedom of Information Act. In 1985 the Supreme Court ruled that records relating to CIA-funded research from 1952 to 1966 at 80 universities to study the effects of mind-altering substances on humans were offlimits to public inspection. A lawyer named John Sims wanted to see the names of the schools and the individuals who had participated in the research projects. The agency argued that the names were exempt from disclosure because, under a 1947 law, the names of intelligence sources cannot be disclosed by the CIA. The Supreme Court agreed and ruled that the director of the spy agency had broad authority under the 1947 National Security Act to protect all sources of information, confidential or not.74 The CIA has managed to use this exemption to almost completely shield its operations from public scrutiny. An appellate court held the Bureau of Alcohol, Tobacco, Firearms and Explosives did not need to produce, per Exemption 3, to the City of Chicago records held in ATF databases about the sale and recovery of firearms. The court held that provisions in a 2005 federal appropriations act specifying the ATF’s firearm databases were “immune from legal process” and “not . . . subject to subpoena or other discovery in any civil action” and were intended “to cut off access to the databases for any reason not related to law enforcement.” Chicago wanted the records not for law enforcement but to help in a civil action it filed against gun makers and dealers for creating a public nuisance.75 Trade Secrets Exemption 4: Trade secrets and commercial or financial information obtained from any person and privileged or confidential. This exemption applies only if a three-part test is satisfied: (1) The information for which the exemption is sought must be a trade secret or commercial or financial in character; (2) it must be obtained from a person; and (3) it must be privileged or confidential. Two kinds of information are exempt from disclosure under this exemption—trade secrets and financial or commercial information. The term “person” is broadly defined to sweep up not just individuals, but also partnerships, corporations and associations. The trade secret exemption has not been heavily litigated. Page 354 Companies that want to stop government agencies from releasing confidential commercial or financial information about them must prove that the release of the information will either: (1) cause them “substantial competitive harm” in their business operations; or (2) impair the government’s ability to obtain such information in the future. Once a company demonstrates by letter and affidavit that the release of its confidential commercial or financial information will cause it substantial competitive harm, then the burden shifts to the government agency to explain why substantial competitive harm is not likely to result if the information is disclosed. For instance, in 2010 a federal appellate court ruled in United Technologies Corp. v. U.S. Department of Defense76 that Exemption 4 shielded from release by the Defense Contract Management Agency (DCMA) certain documents evaluating the quality control processes of two major defense contractors, Sikorsky Aircraft Corporation and Pratt and Whitney. Sikorsky makes helicopters and Pratt makes aircraft engines. The DCMA monitors defense contractors, including Sikorsky and Pratt, to ensure that they satisfy their contractual obligations when providing services and supplies to the United States. It also maintains a regular presence at Sikorsky’s and Pratt’s facilities. When the DCMA finds a problem, it notifies the contractor and may issue a Corrective Action Request (CAR) or an audit report to the contractor to remedy the problem. Two journalists requested CARs and audits for Sikorsky and Pratt, and the two companies, in turn, sought to stop the DCMA from releasing those records. In ruling for the two companies, the U.S. Court of Appeals for the District of Columbia reasoned that the requested documents “appear to reveal details about Sikorsky’s and Pratt’s proprietary manufacturing and quality control processes. At the least, they identify and locate particular parts and equipment and describe the timing and criteria of internal inspections. In other words, the documents describe, in part, how the contractors build and inspect helicopters and/or engines. Once disclosed, competitors could, it appears, use the information to improve their own manufacturing and quality control systems, thus making ‘affirmative use of proprietary information’ against which Exemption 4 is meant to guard.” The appellate court held that the DMCA had failed to rebut this conclusion, and thus the records were exempt from disclosure to the journalists. Working Papers/Discovery Exemption 5: Interagency and intra-agency memorandums and letters which would not be available by law to a party other than an agency in litigation with the agency. This exemption shields two kinds of materials from disclosure. The first are best described as working papers: studies, reports, memoranda and other sorts of documents that are prepared and circulated to assist government personnel make a final report, an agency policy or a decision of some kind. For Exemption 5 to apply to such documents used in the decision-making processes of an agency, the documents typically must be (1) predecisional (used before a decision is made by the agency); and (2) deliberative (the documents must play a direct part in the deliberative process of making recommendations and decisions). Courts thus refer to this part of Exemption 5 as the deliberative-process exemption, and they hold that it generally shields from disclosure records used in agency or inter-agency decision-making processes such as: Page 355 figurerecommendations figureadvisory opinions figuredraft documents figureproposals figuresuggestions and figureother subjective documents reflecting personal opinions of the writer. Sometimes documents generated during the deliberative process to help formulate a policy either become expressly adopted by an agency as its final policy or are incorporated into a final policy by reference to them (such as when a government agency repeatedly refers to a memorandum in order to explain its policy or when the policy cites the memorandum). The Supreme Court ruled in 1975 that Exemption 5 cannot be used to shield such documents. Once the decision has been made, the court said, public disclosure of these materials cannot damage the decision-making process.77 What’s an example of a predecisional document used by a government agency when deliberating about a final decision? In 2013, a federal district court held in Charles v. Office of the Armed Forces Medical Examiner78 that preliminary autopsy reports on soldiers killed in Iraq and Afghanistan fall within the scope of protection of Exemption 5. The court noted that “preliminary autopsy reports are drafts of the final autopsy reports.” The court accepted the government’s contention that information in a preliminary autopsy report is incomplete and often later is altered in the final autopsy report to reflect a different cause of death determination. The second part of the exemption protects from public disclosure material that would not normally be open to inspection in a civil legal proceeding. There is something called the discovery process that is a part of all litigation. Through discovery one party is able to gain access to evidence, testimony and other kinds of material possessed by the other party. But some kinds of material are not accessible through this discovery process. When a private person consults an attorney and discusses matters relevant to a lawsuit, what is said during those conversations is confidential. The attorney-client privilege protects communications between a client and his or her attorney that are intended to be, and in fact were, kept confidential for the purpose of obtaining or providing legal assistance. It thus protects most confidential communications between government attorneys and their clients made for the purpose of obtaining or providing legal advice. But just as with the deliberative-process privilege aspect of Exemption 5 described immediately above, the attorney-client privilege will not shield from disclosure a document adopted as, or incorporated by into, an agency’s final policy. Similarly, most documents that pass between the client and the attorney are considered confidential or privileged. Thus, in addition to attorney-client privileged communications, documents considered the “work product” of an attorney (those prepared by an attorney in the course of litigation or in contemplation of litigation that is reasonably regarded as inevitable under the circumstances) are generally exempt. This part of Exemption 5 shields the same kinds of conversations and materials that are generated between a federal agency and its attorneys. Page 356 In 2001 the Supreme Court limited the scope of Exemption 5 when it said communication between a group of Native American tribes and the Bureau of Indian Affairs, a government agency that represents the United States in the nation’s relationships with the tribes, was not covered by Exemption 5. The issue focused on a dispute about the allocation of water from the Klamath River Basin in Oregon and northern California. A group of irrigators filed a series of FOIA requests to see copies of correspondence between the tribes and the BIA regarding water issues. The government rejected the request, claiming that because of the special relationship between the tribes and the BIA, the records should be protected under Exemption 5 in much the same way that correspondence between lawyers and clients is protected. The Supreme Court, in a unanimous ruling, rejected this argument. Justice David Souter wrote for the court that although there are surely exceptions to the general rule of public disclosure mandated by the Freedom of Information Act, these exceptions are to be applied narrowly. “All of this boils down to requesting that we read an ‘Indian trust’ exemption into the statute, a reading that is out of the question,” Souter wrote. The court also rejected the notion that the communication between the tribes and the BIA was comparable to communication between an agency and an outside consultant, material that is sometimes regarded as interagency or intra-agency memoranda.79 Exemption 5 also includes an executive privilege doctrine related to the president, including a presidential communications privilege.80 Details are complex, but three points are key. First, these privileges are not absolute. Second, while the “Executive Office of the President” is an agency subject to FOIA, the “Office of the President” (the president’s immediate key advisers, such as the chief of staff and White House counsel, who have significant responsibility for investigating and formulating presidential advice) is not subject to FOIA. Finally, as an appellate court observed in 2004, the confines of the presidential communications privilege are construed narrowly, balancing a president’s need for confidentiality and frank advice with the obligations of open government.81 President Richard Nixon tried to argue that access to the infamous White House tapes that played a critical role in the Watergate scandal should be protected by an absolute executive privilege. The Supreme Court ruled that the absolute privilege was developed to protect military and diplomatic secrets. A qualified privilege might be applicable in other situations, but in those cases the need for confidentiality must be balanced against other values. In this case, the need for the tapes in a criminal investigation outweighed the need for secrecy, the court said.82 In 2008, a federal court held that Exemption 5’s presidential communications privilege protected from disclosure 68 pages of e-mails sent between officials in the White House and the Department of Justice relating to the controversial termination and dismissal of several U.S. attorneys while Alberto Gonzales was attorney general.83 The Justice Department claimed the e-mails pertained “to matters such as responding to an upcoming Congressional hearing, formulating official responses to inquiries from outside the Executive Branch, suggesting a plan of action for the appointment of a U.S. Attorney or conferring on issues arising from such appointments, recommending revisions to documents, and planning for the hiring of new Department personnel.” Such decision-making materials were protected because the presidential communications privilege sweeps up both final and postdecisional materials, as well as predeliberative ones, and it extends to the president’s immediate advisers and documents not actually reviewed by the president. Page 357 Personal Privacy Exemption 6: Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of privacy. This exemption shields “personnel and medical files and similar files.” Personnel files and medical files are fairly easy to identify. Courts have had more of a problem determining the nature of a “similar file.” The key consideration is not the kind of file at issue, but the kind of information in the file that is the object of the FOIA request. An individual’s medical and personnel files contain highly personal information about an individual. A file is a “similar file” if it contains this same kind of personal information.84 Not every file that contains personal information will be considered a similar file. “The test is not merely whether the information is in some sense personal,” a U.S. Court of Appeals ruled, “but whether it is of the same magnitude—as highly personal in nature—as contained in personnel or medical records.”85 In 2013, a federal judge held in Charles v. Office of the Armed Forces Medical Examiner that final autopsy reports performed on U.S. soldiers killed in Iraq and Afghanistan constitute “similar files.” The judge noted that “each autopsy report contains information that applies to a particular individual.” In the late 1980s The New York Times sought access to the voice communications tape recorded aboard the space shuttle Challenger just before it exploded in January 1987. The National Aeronautics and Space Administration argued that the tape was shielded from disclosure because it contained personal information similar to that contained in personnel and medical files. Both the U.S. District Court86 and a panel of judges on the U.S. Court of Appeals87 ruled that the tape contained nothing as personal as material in personnel or medical files. But the government petitioned for a rehearing of the case by the full membership of the appellate court, and in a 6-5 ruling the appellate court overturned the earlier decisions. “While the taped words do not contain information about the personal lives of the astronauts, disclosure of the file would reveal the sound and inflection of the crew’s voices during the last seconds of their lives,” the court said. The information recorded through the capture of a person’s voice is distinct and is in addition to the information contained in the words themselves, the six judges noted.88 A ruling that a file is a medical or personnel or similar file does not automatically bar the release of data in the file. Establishing that the information or material sought is the kind of information protected by Exemption 6 is just the first step. The court must then determine that 1.the release of this information will constitute an invasion of personal privacy, and 2.this invasion of personal privacy is clearly unwarranted. Page 358 The Supreme Court made it clear in 1976 that exemption is not intended to preclude every incidental invasion of privacy, but rather “only such disclosures as constitute clearly unwarranted invasions of personal privacy.”89 The government normally carries the burden of proof that the release of the information will amount to an unwarranted invasion of privacy. But this burden is not a terribly heavy one. For example, a U.S. District Court accepted government arguments that the release of the voice communications tape-recorded aboard the space shuttle Challenger would be an unwarranted invasion of privacy.90 The ruling was made despite the fact that a printed transcript of the tape had been previously released. In 2008 a federal appellate court held that the privacy interests protected by Exemption 6 outweighed any public interest in releasing to the Associated Press (AP) petitions sent by John Walker Lindh, the so-called American Taliban, to the Office of the Pardon Attorney seeking to reduce his 20-year prison sentence after he pled guilty to aiding the Taliban in Afghanistan.91 In describing the privacy interests at stake, the appellate court noted that “a Petition for Commutation of Sentence requires the applicant to provide his name, social security number, date and place of birth, criminal record, conviction information, information about any post-conviction relief sought, a detailed account of the circumstances surrounding the offense, and a detailed explanation of the reasons clemency should be granted.” The court then had to address “whether Lindh’s privacy interest outweighs any public interest that would be served by disclosure of the documents.” Observing that the AP had presented no evidence to refute a Justice Department filing asserting that Lindh’s petition had nothing to do with any alleged government misconduct, the appellate court concluded that the “AP has failed to demonstrate that disclosure of Lindh’s petition would serve a cognizable public purpose such that it may not be withheld.” The court also observed that the privacy concerns in Exemption 7(c), discussed later in this chapter, would prevent the disclosure of Lindh’s petitions. In 2009 the 2nd U.S. Circuit Court of Appeals held that Exemption 6 allowed the Department of Defense to redact, from two personal letters sent via the Red Cross by family members of detainees held at Guantanamo Bay to their loved ones, the names and addresses of the detainees’ family members.92 The families’ letters had been submitted by the detainees at their Administrative Review Board hearings, where they testified against the Taliban. The appellate court initially determined the letters, which were requested by the AP, constituted “similar files” within the meaning of Exemption 6, reasoning that the term “has a broad meaning and encompasses the government’s records on an individual which can be identified as applying to that individual.” It then held that “disclosing the family members’ names and addresses to the AP, and consequently to the public at large, involves a measurable privacy interest because the information that would be revealed by disclosure is the type of information that a person would ordinarily not wish to make known about himself or herself.” The court reasoned that “the names and addresses of the family members, if disclosed, would reveal that particular persons are relatives of certain detainees held at Guantanamo Bay” and “would also reveal that the family members are relatives of certain Guantanamo Bay detainees who testified about the Taliban.” The government claimed that this, in turn, could jeopardize the physical safety of the family members, who might be retaliated against by the Taliban. Next, the court balanced this privacy interest against what it called “FOIA’s basic purpose of opening agency action to the light of public scrutiny,” remarking that “whether Exemption 6 applies requires balancing an individual’s right to privacy against the preservation of FOIA’s basic purpose of opening agency action to the light of public scrutiny.” The AP claimed the family members’ identifying information was necessary to see whether the Department of Defense properly followed up on claims of mistaken identity by the detainees. The court, however, ruled in favor of the Department of Defense and concluded that “disclosing names and addresses of the family members would constitute a clearly unwarranted invasion of the family members’ privacy interest because such disclosure would not shed any light on DOD’s action in connection with the detainees’ claims at issue here.” Page 359 Law Enforcement Exemption 7: Records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (a) could reasonably be expected to interfere with enforcement proceedings, (b) would deprive a person of a right to a fair trial or an impartial adjudication, (c) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (d) could reasonably be expected to disclose the identity of a confidential source, including a state, local or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by confidential source, (e) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (f) could reasonably be expected to endanger the life or physical safety of any individual. Exemption 7 provides an agency a broad exception to the general rule of access. Like Exemption 6, Exemption 7 requires a two-tiered test in its application. The first tier or question (what lawyers and judges often call the threshold question) is this: Was the information or record sought compiled for law enforcement purposes? If the government is unable to show that the records were compiled for law enforcement purposes, the exemption does not apply. But the courts are generally willing to grant the government wide latitude in applying this test. The key question is whether the information is being used for law enforcement purposes when the response to the FOIA inquiry is sent to the person seeking the data. Law enforcement agencies, however, are not given carte blanche discretion to designate any record they choose as one gathered for law enforcement purposes. Seth Rosenfeld sued the Department of Justice and the FBI to gain access to records of FBI investigations of faculty, students and journalists at the University of California in the early 1960s when the so-called Free Speech Movement challenged the university administration’s regulations barring political activities on campus. The federal agencies argued that the material had been gathered for the purpose of examining whether the student movement had been captured from within by communists. The U.S. Court of Appeals for the 9th Circuit agreed that although some of the material sought by Rosenfeld had indeed been gathered for legitimate law enforcement purposes, other records were gathered long after the need for such an investigation ceased to exist. The law enforcement purpose argument was only a pretext, the court said, invoked to pursue routine monitoring of many individuals and to shield the harassment of the political opponents of the FBI.93 Page 360 Information compiled for law enforcement purposes may still be accessible under the Freedom of Information Act. The court next must determine whether the release of the material would result in one of the six consequences outlined in a through f in the exemption; for example, would the release of the information be expected to interfere with law enforcement proceedings or deprive a person of a right to a fair trial? Congress amended Exemption 7 in 1986 and gave federal law enforcement agencies far broader authority to refuse FOIA requests. Courts have read the exemption in an expansive manner, giving the FBI, the Secret Service, the Drug Enforcement Administration and other federal police agencies even more legal excuses to deny access to information they possess. For example, in 1989 the Supreme Court agreed that the release of computerized arrest records (often called “rap sheets”) held by the FBI could reasonably be expected to constitute an unwarranted invasion of personal privacy. The rap sheets contain information indicating arrests, indictments, acquittals, convictions and sentences on about 24 million people in the nation. Some of this material is highly sensitive, but much of it has been publicized previously when individuals were being processed by the criminal justice system. In addition, all of these data are available from state and local law enforcement agencies across the nation. The FBI has simply put together all the bits and pieces of data about an individual held by various police agencies into a single, computerized file. CBS reporter Robert Schnake sought such information from the FBI on Charles Medico. The agency denied the request, citing the personal privacy factor in Exemption 7. A U.S. District Court supported the agency, saying the material sought by Schnake would be personal to Medico. But the U.S. Court of Appeals for the District of Columbia Circuit reversed this decision, noting that the government cannot assert a privacy interest in records it holds when the records are already available from state and local authorities.94 The Supreme Court reversed this ruling in a 9-0 decision. The privacy interest in a rap sheet is substantial, wrote Justice John Paul Stevens for the court. “The substantial character of that interest is affected by the fact that in today’s society the computer can accumulate and store information that would have otherwise surely been forgotten long before a person attains the age of 80, when the F.B.I.’s rap sheets are discarded,” Stevens added. Federal computers, he said, make easily available information that would be difficult to obtain by other means. “Plainly there is a vast difference between the public records that might be found after a diligent search of courthouse files, county archives, and local police stations throughout the county and a computerized summary located in a single clearinghouse of information,” Stevens noted.95 Page 361 MURDER, MUG SHOTS & EXEMPTION 7(C) When Jared Lee Loughner was booked into federal custody in connection with the murder of U.S. District Judge John M. Roll and the shooting of U.S. Rep. Gabrielle Giffords in Tucson, Ariz., in 2011, multiple mug shots (booking photographs) of Loughner were taken. These federal mug shots were in addition to the one that the Pima County Sheriff’s Department previously had released of Loughner and that was widely publicized showing a smirking Loughner. Several news media outlets sought the federal mug shots under a federal FOIA request, but Loughner’s attorneys filed a motion seeking an order barring the United States Marshals Service (“USMS”) from releasing them, claiming their release would jeopardize Loughner’s right to a fair trial under the Sixth Amendment. Loughner’s attorneys argued that Exemption 7(c) prevented their release, asserting the mug shots were: (1) created for law enforcement purposes; (2) reasonably triggered individual privacy concerns; and (3) did not advance any public interest advanced by FOIA. The U.S. Attorney prosecuting Loughner supported the motion to prevent their release. In December 2012, the USMS adopted a formal “Booking Photograph Disclosure Policy.” It provides that “the USMS will not disclose booking photographs under the FOIA, regardless of where the FOIA request originated, unless USMS Office of General Counsel determines either that the requester has made the requisite showing that the public interest in the requested booking photograph outweighs the privacy interest at stake or that other factors specific to the particular FOIA request warrant processing that request consistent with existing Sixth Circuit precedent.” What’s the importance of this reference to the Sixth Circuit? Although the Supreme Court has not addressed the issue, the 6th U.S. Circuit Court of Appeals in Detroit Free Press v. Department of Justice, 73 F. 3d 93 (6th Cir. 1996), held that, contrary to the USMS’s position, booking photos must be released under certain circumstances. The U.S. Supreme Court held in 2004 in National Archives & Records Administration v. Favish that Exemption 7(c) prevented the release to Allan Favish of certain death-scene photographs of Vincent Foster Jr., deputy counsel to President Bill Clinton.96 Favish wanted the photos because he questioned the government’s finding that Foster’s death was a suicide; he believed the government’s investigations of Foster’s death were “grossly incomplete and untrustworthy.” Foster’s family members, however, objected to the release of the photos. They contended their own personal privacy interests would be harmed by such release, and thus they argued the photos were shielded by Exemption 7(c) to secure what the Supreme Court called “their own refuge from a sensation-seeking culture for their own peace of mind and tranquility.” Exemption 7(c) prevented the release to Allan Favish of certain death-scene photographs. In ruling for Foster’s immediate relatives, the high court initially held that Exemption 7(c) permits surviving family members to assert their own privacy rights against public intrusions when it comes to death-scene images of their immediate relatives. The court then turned to whether the release of the photos would be an unwarranted intrusion on the privacy rights of those family members. Justice Anthony Kennedy wrote for the court: Page 362 Where there is a privacy interest protected by Exemption 7(c) and the public interest being asserted is to show that responsible officials acted negligently or otherwise improperly in the performance of their duties, the requester must establish more than a bare suspicion in order to obtain disclosure. Rather, the requester [Favish] must produce evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred. The court concluded Allan Favish had not met this burden, finding that he had “not produced any evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred to put the balance into play.” In 2011 a federal appellate court in Prison Legal News v. Executive Office for United States Attorneys97 addressed whether Exemption 7(c) would prevent the release to a newspaper that covers prison issues copies of certain autopsy images and a videotape taken by Bureau of Prisons (BOP) personnel that showed the mutilated body of an inmate named Joey Jesus Estrella who was savagely killed by two cellmates. The parties to the case agreed that the privacy interests at stake were those of Estrella’s surviving family members. The 10th U.S. Circuit Court of Appeals looked to the Supreme Court’s ruling in Favish for precedent (see Chapter 1 regarding precedent). As in Favish, the appellate court noted that the records sought by the Prison Legal News “unquestionably reflect death-scene images.” Describing the images as “gruesome,” it specified that “photographs depict close-up views of the injuries to Estrella’s body and the first portion of the video prominently features Estrella’s body on the floor of the prison cell.” The appellate court thus characterized Estrella’s family as having a “high” privacy interest in the images and video. Although the images were publicly displayed during the criminal trial of Estrella’s cellmates, the appellate court still found that Estrella’s family possessed a privacy interest in them because, after the trial, they were no longer publicly available and because Estrella’s family members “did not take any affirmative actions to place the images in the public domain.” After recognizing the family’s privacy interest, the appellate court then weighed and balanced it against the alleged public interest in the images. In particular, the Prison Legal News asserted that the images would: (1) “shed light on the BOP’s performance of its duty to protect prisoners from violence perpetrated by other prisoners”; and (2) help the public to better understand the prosecutor’s decision to seek the death penalty against Estrella’s killers. The appellate court found these interests lacking, observing that the “video does not begin until Estrella has already been murdered and therefore does not depict any BOP conduct prior to Estrella’s death” and that, during the trial of Estrella’s killers, “the parties indicated that the length of time between the beginning of the video and the time BOP personnel extracted [Estrella’s killers] from the cell is publicly known. Thus, all aspects of the video documenting BOP’s response to the situation have been fully disclosed.” The court added that the content of all of the images was widely reported by the news media during the trial. The 10th Circuit thus concluded that, “to the extent any additional information can be gained by release of the actual images for replication and public dissemination, the public’s interest in that incremental addition of information over what is already known is outweighed by the Estrella family’s strong privacy interests in this case.” It thus held that Exemption 7(c) and the family’s privacy interests prevailed—the images and videotape in question would be permanently sealed. The decision reflects the lasting power and precedent of Favish in extending a privacy right under FOIA to family members over gruesome death-scene images of their loved ones. Page 363 Finally, it is important to note that Exemption 7 (c) applies only to people; the United States Supreme Court ruled in March 2011 in FCC v. AT&T, Inc.98 that corporations do not possess “personal privacy” rights for the purposes of this exemption. In brief, only individuals, not corporations, can assert the personal privacy exemption. Financial Records Exemption 8: Matters contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of any agency responsible for the regulation and supervision of financial institutions. This is a little-used exemption that is designed to prevent the disclosure of sensitive financial reports or audits that, if made public, might undermine the public confidence in banks, trust companies, investment banking firms and other financial institutions. In 2007 a federal court held that the U.S. Securities and Exchange Commission had successfully asserted Exemption 8 to withhold documents relating to an SEC investigation of Charles Schwab Corporation and Nucor Corporation.99 The court initially found that the “purpose underlying Exemption 8 is to ensure financial institutions’ security” and that “Congress also enacted Exemption 8 to promote communication between banks and regulating agencies.” It then held that Exemption 8 protected the requested documents because they “were produced in connection with an ongoing SEC examination or investigation and provide insight into the information and entities the SEC attorneys were examining and investigating.” Geological Data Exemption 9: Geological and geophysical information and data, including maps concerning wells. People who drill oil and gas wells provide considerable information about these wells to the government. This exemption prevents speculators and other drillers from gaining access to this valuable information. HANDLING FOIA REQUESTS Filing a FOIA request is a relatively simple matter. For instance, the Reporters Committee for Freedom of the Press has an online request letter generator on its Web site at http://www.rcfp.org/foia. Government agencies also provide extensive online information about filing FOIA requests. For example, the U.S. Department of Justice maintains a link on its Web site at http://www.justice.gov/oip/index.html devoted to the Freedom of Information Act. Page 364 Government departments must answer requests for records and documents within 20 business days. A journalist can, however, ask for an “expedited review” if there is an urgent need for the information. A requester is entitled to an expedited review if he or she is a person primarily engaged in disseminating information and there is an urgency to inform the public about an actual or alleged governmental activity. If an appeal is filed after a denial, the agency has only 20 days to rule on the appeal. Each agency must publish quarterly, or more frequently, an index of the documents and records it keeps. Government departments must answer requests for records and documents within 20 business days. UNDERSTANDING THE 20-DAY RESPONSE TIME The 20-day response time, which is spelled out by federal statute, is important to understand. First, the clock generally starts to run on the date on which the request is first received by the appropriate component of the agency. Second, the 20 days does not include Saturdays, Sundays and legal public holidays. Third, the agency does not need to produce the documents within 20 days, but it must make a substantive “determination” about how it will respond to the request. For example, in 2013 the U.S. Court of Appeals for the District of Columbia held that while a government agency “need not actually produce the documents” within 20 business days, it “must at least indicate within the relevant time period the scope of the documents it will produce and the exemptions it will claim with respect to any withheld documents.”100 The court noted that within the 20-day window, “an agency must determine whether to comply with a request—that is, whether a requester will receive all the documents the requester seeks. It is not enough that, within the relevant time period, the agency simply decide to later decide.” The court added, however, that in “unusual circumstances,” agencies may extend the 20-day limit to up to 30 working days by serving written notice to the requester. Circumstances justifying an extension include situations where a voluminous amount of separate and distinct records are demanded in a single request. The complete list of “unusual circumstances” is described by a federal statute (5 U.S.C. § 552(a)(6)(B)(i)). Agencies are required to report to Congress each year and must include in the report a list of the materials to which access was granted and to which access was denied and the costs incurred. The OPEN Government Act of 2007 also requires that, in addition to reporting the median number of days required to process requests, government agencies provide the “average number of days for the agency to respond to a request beginning on the date on which the request was received by the agency, the median number of days for the agency to respond to such requests, and the range in number of days for the agency to respond to such requests.” In addition, in a way of shaming foot-dragging agencies into compliance, government agencies must now report their 10 oldest pending requests. If a citizen or a reporter has to go to court to get the agency to release materials and the agency loses the case, the agency may be assessed the cost of the complainant’s legal fees and court costs. FOIA allows a court to award reasonable attorney fees to a plaintiff who has “substantially prevailed” in a FOIA lawsuit against a government agency, although a court is not required to grant such fees. In other words, even if a plaintiff is eligible to obtain attorney fees, he or she may not be entitled to them. In determining if a prevailing plaintiff is entitled to them, courts often consider and weigh four factors: (1) the public benefit derived from the case (will, for instance, the released information help the public in making vital political choices?); (2) the commercial benefit to the plaintiff (did the plaintiff sell a profitable book based upon the information he or she obtained?); (3) the nature of the plaintiff’s interest in the records (does the plaintiff have personal motive or profit motive?); and (4) the reasonableness of the agency’s withholding (did the agency have a reasonable basis in law for denying the request?). Finally, agency personnel are now personally responsible for granting or denying access, a requirement federal agencies object to strenuously. An employee of an agency who denies a request for information must be identified to the person who seeks the material, and if the access is denied in an arbitrary or capricious manner, the employee can be disciplined by the Civil Service Commission. Page 365 Government agencies must now report their 10 oldest pending requests. There is no initial fee to file a FOIA request, but agencies may charge reasonable fees for searching, copying and reviewing files, depending on the particular category into which a FOIA requester falls. FOIA divides requesters into three groups for fee purposes: 1.Commercial Requesters: Charged for search time, processing time (costs incurred during initial review of a record to see if it must be disclosed under FOIA) and duplicating. 2.Educational Institutions, Noncommercial Scientific Institutions and Representatives of the News Media: Charged only for duplicating (first 100 pages free). 3.All Other Requesters: Charged for search time (after two free hours) and duplicating (first 100 pages free). Anyone who seeks a fee waiver under FOIA must show that the disclosure of the information is “in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.” Significantly, the OPEN Government Act of 2007 broadened the definition of a “representative of the news media” exempt from document search fees to include a freelance journalist working for a news media entity “if the journalist can demonstrate a solid basis for expecting publication through that entity, whether or not the journalist is actually employed by the entity.” In addition, the act made it clear that “as methods of news delivery evolve (for example, the adoption of the electronic dissemination of newspapers through telecommunications services), such alternative media shall be considered to be news-media entities.” Under an executive order signed by President George W. Bush in 2005, each federal agency must maintain a “FOIA Requester Service Center” that requesters may contact to speak with a FOIA public liaison in order to check on the status of their FOIA requests and to receive information about an agency’s response. Are the FOIA service centers and liaisons useful? A 2008 report, issued by the National Security Archive (NSA), tested the centers and liaisons at different government agencies and found the experiences were generally “positive” and that “the new customer service system has made it easier to follow up on requests.”101 The report determined that of the 53 service centers called by the NSA to check on the status of a request, 44 provided “at least basic information on the pending FOIA request,” such as where the request stood in the processing queue, while all 53 agencies called were able to confirm that the request in question was received. The OPEN Government Act of 2007 discussed earlier turned the establishment of FOIA public liaisons under Bush’s executive order into statutory law that requires each government agency to have one or more such public liaisons that are “responsible for assisting in reducing delays, increasing transparency and understanding of the status of requests and assisting in the resolution of disputes.” Page 366 The Freedom of Information Act is not difficult to use. Both the Student Press Law Center and the Reporters Committee for Freedom of the Press offer free automated open-records request letters. The fill-in-the-blank format is easy to complete. The online services of the SPLC can be accessed through http://www.splc.org. This part of Chapter 9 provided an overview of the federal Freedom of Information Act. Seven excellent online resources—the first five of which are private organizations, while the final two are government agencies—related to FOIA that supply more details and information are: figureThe FOIA Project: http://foiaproject.org figureNational Security Archive, George Washington University: http://www.gwu.edu/~nsarchiv/nsa/foia.html I National Freedom of Information Center: http://www.nfoic.org figurePublic Citizen Freedom of Information Clearinghouse: http://www.citizen.org/Page.aspx?pid=5171 figureRCFP Federal Open Government Guide: http://www.rcfp.org/federal-open-government-guide figureU.S. Department of Justice, FOIA Information Center: http://www.justice.gov/oip/index.html figureFederal Communications Commission (FCC) FOIA Center: http://www.fcc.gov/foia TIPS ON HOW TO GET RECORDS Many old journalistic hands argue that formal FOIA requests should be a last resort. Jack Briggs, former editor of the Tri-City (Wash.) Herald, advises reporters to do the following: figureAsk informally for documents—a formal FOIA request often takes much longer. figureLook to public court records for information that takes longer to get through a FOIA request. figureCultivate trusted sources within federal agencies. figureFollow up FOIA requests with telephone calls. figureDon’t kick and scream, unless kicking and screaming is justified. And don’t forget to occasionally praise the FOIA officer who helps you. Page 367 FEDERAL OPEN-MEETINGS LAW In 1976 Congress passed and the president signed into law the Government in Sunshine Act, the federal open-meetings law. The statute affects approximately 50 federal boards, commissions and agencies “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.” Importantly for media law students, this includes the Federal Communications Commission, and meetings of three or more of the five FCC commissioners must be open to the public. Ironically, the Government in Sunshine Act has been criticized by some as actually promoting secrecy at the FCC, with many of the real discussions and debates happening in closed-door meetings between two commissioners or in meetings between legal assistants and liaisons for the commissioners. These public bodies are required to conduct their business meetings in public. Notice of public meetings must be given one week in advance, and the agencies are required to keep careful records of what occurs at closed meetings. The law also prohibits informal communication between officials of an agency and representatives of companies and other interested persons with whom the agency does business unless this communication is recorded and made part of the public record. Courts have strictly interpreted the requirement that the law applies only to bodies whose members are appointed by the president. In 1981 the U.S. Court of Appeals for the District of Columbia Circuit ruled that the Government in Sunshine Act did not govern meetings of the Chrysler Loan Guarantee Board, a body created by Congress to oversee federal loan guarantees for the financially troubled automaker. People who served on the board were not actually named by the president, but served because they held other federal offices (i.e., secretary of the treasury, comptroller general, chair of the Federal Reserve). “If Congress had wanted to subject the board to the provisions of the Sunshine Act, it could have so provided when the board was established,” the court noted.102 A board or agency must also have some independent authority to act or take action before the law applies. A U.S. Court of Appeals ruled that the law does not apply to the president’s Council of Economic Advisors. The sole function of the CEA is to advise and assist the president, the court said. It has no regulatory power. It cannot fund projects, even though it may appraise them. It has no function, save advising and assisting the president. Hence, it is not subject to either the FOIA or the Government in Sunshine Act.103 Even agencies or commissions that fall under the aegis of the law may meet behind closed doors. The 1976 law lists 10 conditions or exemptions under which closed meetings might be held. The first nine of these exemptions mirror the exemptions in the Freedom of Information Act. The 10th exemption focuses on situations in which the agency is participating in arbitration or is in the process of adjudicating or otherwise disposing of a case. Courts have strictly interpreted the requirement that the law applies only to bodies whose members are appointed by the president. This exemption was used to block access to a meeting of the Nuclear Regulatory Commission. The NRC was discussing the reopening of the nuclear power plant at Three Mile Island in Pennsylvania. The federal district court ruled that this meeting would likely focus on the final adjudication of the federal action involving the nuclear reactor and hence could be closed to press and public.104 Page 368 SUMMARY Statutes provide public access to both federal records and meetings held by federal agencies. The federal records law, the Freedom of Information Act, makes public all records including electronic records and e-mail held by agencies within the executive branch of government and the independent regulatory commissions. Courts have given a broad meaning to the term “record” but have ruled that an agency must normally create and possess such a record before it becomes subject to FOIA. Nine categories of information are excluded from the provisions of the law. These include exemptions for national security, agency working papers, highly personal information and law enforcement files. Agencies must publish indexes of the records they hold and must permit copying of these materials. It is important to follow specific procedures when making a FOIA request to see certain records or documents. The Government in Sunshine Act is the federal open-meetings law. This law reaches about 50 agencies in the executive branch and the regulatory commissions. Members of these organizations are not permitted to hold secret meetings unless they will discuss material that falls into one of 10 categories. These categories mirror the FOIA exemptions but also include a provision that permits closed-door meetings to discuss attempts to arbitrate or adjudicate certain cases or problems. STATE LAWS ON MEETINGS AND RECORDS It is not as easy to talk about access at the state level as it is at the federal level, because the discussion involves hundreds of different statutes. (Most states have multiple laws dealing with access to meetings, access to records and other access situations.) The following pages provide at best a few generalizations. Harold Cross made some of the most astute generalizations in 1953 in his pioneering book “The People’s Right to Know.”105 Cross was really the first scholar to present a comprehensive report on access problems. In his book he listed four issues, or questions, common to every case of access: 1.Is the particular record or proceeding public? Many records and meetings kept or conducted by public officers in public offices are not really public at all. Much of the work of the police, though they are public officers and work in public buildings, is not open to public scrutiny. 2.Is public material public in the sense that records are open to public inspection and sessions are open to public attendance? Hearings in juvenile courts are considered public hearings for purposes of the law, but they are often not open to the public. 3.Who can view the records and who can attend the meetings open to the public? Many records, for example, might be open to specific segments of the public, but not to all segments. Automobile accident reports by police departments are open to insurance company adjusters and lawyers, but such records are not usually open to the general public. 4.When records and meetings are open to the general public and the press, will the courts provide legal remedy for citizens and reporters if access is denied?

The last question is probably not as important today as it was when Cross wrote his book in 1953, for at that time access to many public records and meetings in the states was based on common law. Today this fact is no longer true. Access to meetings and records is nearly always governed by statute, and these statutes usually, but not always, provide a remedy for citizens who are denied access. This provision is more widespread in open-meetings laws, which tend to be more efficient in providing access, than in open-records laws, which are still weak and vague in many jurisdictions. STATE OPEN-MEETINGS LAWS All 50 states have statutes that mandate open meetings, and these laws range from good to awful. It is difficult to make generalizations about these 50 different state laws. In 2006 the Reporters Committee for Freedom of the Press published the fifth edition of its “Open Government Guide,” which it describes as “a complete compendium of information on every state’s open records and open-meetings laws. Each state’s section is arranged according to a standard outline, making it easy to compare laws in various states.” This helpful guide for all journalists is found on the Web at http://www.rcfp.org/open-government-guide. One of the most important aspects of any open-meetings law is the strong sanctions that may be imposed on government officials who fail to follow the mandate of the law. Laws that provide for substantial personal fines against these individuals are generally more desirable than laws that impose only small fines or no penalties at all. Can a state’s open meetings law include criminal sanctions and punishments for government officials who violate it? The answer is yes, according the 5th U.S. Circuit Court of Appeals’ 2012 ruling in Asgeirsson v. Abbott.106 The case involved a challenge to the Texas Open Meetings Act (TOMA) brought by a number of local government officials. Like many open meetings laws, TOMA requires the meetings of governmental bodies to be open to the public. It prohibits members of governing bodies from knowingly participating in closed meetings, organizing closed meetings or closing meetings to the public. Violations are considered misdemeanors punishable by a fine of up to $500 and/or jail time ranging from one to six months. In Asgeirsson, the government officials claimed this violated their First Amendment speech rights by criminalizing political speech—discussions of public business—if it did not occur in an open meeting (in other words, TOMA punishes government officials when they engage in private political speech at a closed-door meeting). The 5th Circuit rejected this challenge and upheld TOMA, including the criminal sanctions for government officials who violate it. The court wrote that the law serves many substantial interests that justify it, including reducing government corruption, increasing transparency of government, fostering trust in government and ensuring that all members of a governing body may take part in the discussion of public business. Another important part of an open-meetings law is the legislative declaration at the beginning of the law. A clear, strong statement in favor of open access to meetings of government bodies can persuade a judge trying to interpret the law to side with the advocates of access rather than with the government. For example, in the state of Washington the open-meetings law begins as follows: Page 370 The legislature finds and declares that all . . . public agencies of this state and subdivisions thereof exist to aid in the conduct of the people’s business. It is the intent of this chapter that their actions be taken openly and that their deliberations be conducted openly. State open-meetings laws are normally written in one of two ways. Some laws declare that all meetings are open, except the following. Meetings that are closed are then listed. Other state laws simply list the agencies that must hold open meetings. The Congress of the United States is clearly excluded from the provisions of the federal open-meetings law. State legislatures are generally excluded from the provisions of their state open-meetings laws as well. But the issue is not quite as clear-cut as the situation at the federal level. Some state open-meetings laws do in fact cover some kinds of legislative proceedings. State open-meetings laws routinely do not include meetings of parole and pardon boards, of law enforcement agencies, of military agencies like the National Guard, of medical agencies like hospital boards, and so forth. Can a state open-meetings statute that fails to define a key term such as “meeting” nonetheless be constitutional? Yes, according to the Supreme Court of Arkansas in its December 2012 ruling in McCutchen v. City of Fort Smith.107 The case involved the open-meetings provision of the Arkansas Freedom of Information Act (Arkansas FOIA). A key issue was whether the circulation of a memorandum by a member of the board of directors of the City of Fort Smith to other board members in advance of an official study session constituted a meeting. The memorandum expressed one board member’s opinion and background information on a proposed ordinance that was to come before the board. The Supreme Court of Arkansas engaged in statutory construction, examining the legislative intent and history behind the purpose of the Arkansas FOIA. After doing so, the court concluded the board member’s actions did not constitute a meeting and thus did not violate the Arkansas statute. It noted that “it is left to the judiciary to give effect to the intent of the legislature, and in our prior decisions construing the [Arkansas] FOIA, we have given effect to that intent.” As for the absence of a statutory definition of the term “meeting,” the court concluded that those challenging the constitutionality should ask the legislature—not the court—to provide a better definition. This last point illustrates the separation of powers between the legislative and judicial branches of government, with the role of the legislature being to draft laws and the role of the judiciary being to interpret them. Most open-meetings laws provide for closed meetings, or executive sessions, in certain kinds of cases. Meetings at which personnel problems are discussed are an obvious example. A public airing of a teacher’s personal problems could be an unwarranted invasion of privacy. The discussion of real estate transactions is another obvious example. All but 13 state open-meetings laws contain a provision that no final action can be taken at an executive session, that the board or commission must reconvene in public before a final determination can be made on any issue. Page 371 When a presiding officer of a governmental body announces at a meeting that the body is going into executive session, a reporter at the meeting should make certain of the following items: 1.The presiding officer has specified what topics will be discussed during the closed session, or why the executive session has been called. 2.A reporter who believes that a meeting is being closed improperly should formally object. He or she should ask members of the body specifically which provision in the law they are using to go into closed session. It is not inappropriate to ask for a vote of the body to make certain the required simple majority (or two-thirds majority in some states) approves of the closed session. 3.The reporter should also ask what time the closed session will end, so he or she can attend a reconvened public session. Most open-meetings statutes require not only that meetings be open to the public, but also that the public be notified of both regular and special meetings far enough in advance that they can attend if they wish. Time requirements vary, but normally a special meeting cannot be held without an announcement a day or two in advance. Virtually all laws provide some kind of injunctive or other civil remedy if the law is violated; almost half the statutes provide for criminal penalties if the statute is knowingly violated. In many states any action taken at a meeting that was not public, but should have been public, is null and void. The action must be taken again at a proper meeting. Most laws provide fines and short jail terms for public officers who knowingly violate the law, but prosecution is rare. What should a reporter do when asked to leave a meeting that he or she believes should be open to the press and public? First, find out who has denied you access to the meeting and ask for the legal basis of this denial. Never leave a meeting voluntarily; but if ordered to leave, do so and contact your editor immediately. Resistance is not advised, for criminal charges may be filed against you. Whereas open-meetings laws provide a good means of access to proceedings, the reporter possesses what is probably a more powerful weapon—the power of publicity. Public officials don’t like stories about secret meetings. If an agency abuses its right to meet in executive session, describe these meetings as they really are—secret sessions. A photo essay showing a meeting room door open, closing and closed, accompanied by a caption citing appropriate parts of the open-meetings law, will often get a reporter back into a proceeding faster than a court action. Whereas open-meetings laws provide a good means of access to proceedings, the reporter possesses what is probably a more powerful weapon—the power of publicity. OPEN-MEETINGS TIPS FOR REPORTERS figureAsk for the legal basis for closure. figureFind out who is asking that the meeting be closed and why. figureNever leave a meeting voluntarily, but don’t resist being escorted out the door. figureCall your editor immediately. figureUse publicity as well as the law to gain access. Page 372 STATE OPEN-RECORDS LAWS Every state in the union also has some kind of open-records law. The access laws either follow the federal formula—all records are open except the following—or list the kinds of records that the public does have a right to inspect. The scope and reach of state open-records laws, which sometimes are known as public-records laws or state freedom-of-information laws, will vary from state to state. It is important to know what the law is in your state. Excellent online resources relating to state open-records laws include: figureReporters Committee for Freedom of the Press, Open Government Guide http://www.rcfp.org/ogg figureNational Freedom of Information Coalition, State FOI Laws http://www.nfoic.org/state-foi-laws In addition, there are many organizations across the country that concentrate primarily on the open-records laws of a specific state. Some of these organizations, which include both privately funded groups and government entities, have created helpful handbooks for journalists summarizing the open-records statutes and open-meetings laws in a given state. The organizations listed below are merely examples of such groups for different states: figureCalifornia: The First Amendment Project http://www.thefirstamendment.org figureConnecticut: Freedom of Information Commission http://www.state.ct.us/foi figureFlorida: First Amendment Foundation http://www.floridafaf.org figureNew York: Committee on Open Government http://www.dos.state.ny.us/coog/coogwww.html figurePennsylvania: Pennsylvania Freedom of Information Coalition http://www.pafoic.org figureTexas: Freedom of Information Foundation of Texas http://www.foift.org There is a growing movement to roll back access provided under state shield laws when it comes to audio recordings of 911 emergency telephone calls, especially when the caller is being attacked or the caller is otherwise in a panicked or terrified state. Critics of the release of such tapes contend they feed sensational and voyeuristic tastes, especially when the recordings are played on TV and then are uploaded to the Internet where anyone can listen to them. Access proponents, however, countered that the public needs to hear such calls to determine how effectively government agencies like law enforcement respond to such situations. This battle will continue to be played out in the coming years. Most state laws permit inspection of records by any person, but a few limit access to public records to citizens of the state, as discussed later. The reason people want to see a record is normally considered immaterial when determining whether they can gain access to the record. The freedom of information laws provide access to records held by public agencies in the state, and normally these statutes provide a broad definition of these agencies. Normally included are state offices, departments, divisions, bureaus, boards and commissions. Records kept by local government agencies (cities, counties, villages) are also included, as are those kept by school districts, public utilities and municipal corporations. In some states these laws also apply to records held by the governor.108 These state laws do not normally govern records kept by courts or the legislature. Frequently these branches of government have established their own policies regarding access to records. State laws follow either a liberal or conservative definition of a public record. All records possessed by an agency are deemed to be public records in those states with liberal definitions of a public record. But some state laws are more conservative and provide access only to those records that are required to be kept by law. Most state laws permit inspection of records by any person. Page 373 Is it permissible for one state to preclude citizens of other states from enjoying the same right of access to public records that the state affords its own citizens? Yes. That question was resolved by the U.S. Supreme Court in April 2013 in the case of McBurney v. Young.109 At issue in McBurney was the Virginia Freedom of Information Act (FOIA), which provides that “all public records shall be open to inspection and copying by any citizens of the Commonwealth,” but it grants no such right to non-Virginians. In other words, only Virginians can use Virginia’s FOIA law. Seven other states have similar citizens-only open-records laws (Alabama, Arkansas, Delaware, Missouri, New Hampshire, New Jersey and Tennessee). In upholding Virginia’s law and rejecting a challenge brought against it by citizens of Rhode Island and California, Justice Samuel Alito wrote for a unanimous Supreme Court that “the distinction that the statute makes between citizens and noncitizens has a distinctly nonprotectionist aim. The state FOIA essentially represents a mechanism by which those who ultimately hold sovereign power (i.e., the citizens of the Commonwealth) may obtain an accounting from the public officials to whom they delegate the exercise of that power.” Alito added that “the provision limiting the use of the state FOIA to Virginia citizens recognizes that Virginia taxpayers foot the bill for the fixed costs underlying recordkeeping in the Commonwealth.” The Court thus concluded that Virginia’s FOIA law did not violate the Privileges and Immunities Clause of the U.S. Constitution, a discussion of which is beyond the scope of this book. figure R U A RECORD? 4 HOW LONG? TEXT MESSAGES, E-MAILS & PUBLIC RECORDS Are text messages made by public officials on government-owned phones and handheld devices public records under state open-records laws? That’s an issue with which courts now are grappling. Courts in Michigan faced it in 2008 when Detroit newspapers used that state’s freedom of information law to request incriminating text messages made by Kwame Kilpatrick, the disgraced former mayor of Detroit. A Michigan court ordered Kilpatrick to produce more sexually explicit text messages between himself and his former chief of staff, Christine Beatty. The produced text messages also revealed a secret agreement to hide the existence of text messages that demonstrated Kilpatrick and Beatty lied during a police whistle-blower lawsuit. Page 374 Most states treat e-mail messages made on government computers and sent or received in the conduct of public business as public records; for instance, Florida defines public records to include “data processing software or other material, regardless of physical form [emphasis added].” Personal e-mails sent via government e-mail systems, however, are not necessarily public records, especially if their content is of a purely personal nature that is not connected to the functioning of government. For instance, in 2010 a Michigan appellate court ruled in Howell Education Association v. Howell Board of Education”110 that Michigan’s Freedom of Information Act was not intended to render all personal e-mails public records simply because they are transmitted and captured by a government entity’s e-mail system. The court thus made a distinction between purely personal e-mails (not public records) and e-mail transmitted in performance of an official function (public records). The Supreme Court of Michigan declined to consider the case in 2011. Also in 2010 the Wisconsin Supreme Court held in Schill v. Wisconsin Rapids School District111 that teachers’ personal e-mail communications, the content of which were “solely personal” and involved “no connection to a government function” but that were sent using school district e-mail accounts and district-owned computers, were not subject to that state’s open records law. The Wisconsin Supreme Court observed that “the personal contents of these e-mails are not subject to release to a record requester merely because they are sent or received using the government employers’ e-mail systems and then stored and maintained on those systems.” Finally, the West Virginia Supreme Court reached a similar conclusion, ruling in 2009 in Associated Press v. Canterbury112 that under the West Virginia Freedom of Information Act, “an e-mail communication or other writing is a public record only if it relates to the conduct of the public’s business, i.e., the official duties, responsibilities or obligations of a particular public body.” The bottom line, then, is this: The nature of the content of an e-mail will affect whether it is classified as a public record under state law. All state freedom of information laws provide exemptions to disclosure. Agencies may withhold material that falls under an exemption in some states; agencies must withhold this information in other states. Six common exemptions to the state open-records laws are the following: 1.Information classified as confidential by state or federal law 2.Law enforcement and investigatory information 3.Trade secrets and commercial information 4.Preliminary departmental memorandums (working papers) 5.Personal privacy information 6.Information relating to litigation against a public body Page 375 Can state and local governments copyright certain records they create and maintain in order to stop their widespread distribution under freedom of information laws? That issue arose in South Carolina in 2008 when the state’s highest court in Seago v. Horry County considered whether further dissemination of public documents obtained pursuant to the South Carolina Freedom of Information Act “may be restricted where the government entity claims the information is copyright-protected under the federal copyright law.”113 The dispute centered on a company that collected electronic mapping data, including digital photographic maps, from various government entities (in this case, Horry County) and then charged customers a fee for accessing such data on its Web site. Horry County had copyrighted parts of its mapping data. In ruling in favor of the county, the Supreme Court of South Carolina held that “while public information must be granted pursuant to FOIA, a public entity may restrict further commercial distribution of the information pursuant to a copyright.” Can state and local governments copyright certain records? 911 TELEPHONE RECORDINGS AND THE SOUNDS OF DEATH There is a growing movement in some states to exempt from their open records laws the tapes and/or transcripts of 911 emergency telephone calls. Why? Because a 911 call might include a person’s dying words or terrified response as he or she is being attacked or otherwise is in a state of danger. Alabama thus amended its open records laws in 2010 to prohibit the release of audio recordings of 911 calls unless a judge first determines that the public’s interest in disclosure outweighs the privacy interest of the person making the call. The Alabama law applies only to audio recordings; transcripts of the calls are available for a “reasonable fee” to cover the costs of transcription. Look for other states to adopt similar measures in the near future. Obtaining copies of state records can sometimes be an expensive proposition. For instance, the police department in Milwaukee was going to require the Milwaukee Journal Sentinel in 2010 to prepay more than $3,500 to fulfill the newspaper’s request for certain police incident reports. The department claimed there were more than 500 such reports and that significant time needed to be spent to redact (black out) confidential information from them before they could be released. The police department was going to charge the newspaper more than $40 an hour for labor and 25 cents per page copied. More shockingly, the police department imposed a cap on the number of its staff hours that it would spend working on the request. Rather than pay up, the Milwaukee Journal Sentinel sued the Milwaukee Police Department, claiming it violated the Wisconsin Open Records Law by charging it excessive fees for the opportunity to inspect and copy the records it requested and by imposing arbitrary limits on the amount of time staff could spend complying with the newspaper’s request. Sometimes lawsuits, it seems, are necessary to bring fees down. When records are produced, the charges may be steep. In another example of the high cost of obtaining documents under state open records laws, the editors of left-leaning magazine Mother Jones were told in March 2011 that it would cost nearly $60,000, to be paid in advance, to obtain the e-mails of Mississippi’s Republican governor, Haley Barbour. The magazine had filed a request that year seeking all of Barbour’s official e-mails, calendars, call logs and travel records since the beginning of his tenure in January 2004. Mother Jones was told it would take an estimated 832 hours of labor to extract Barbour’s e-mails from the period of 2006 through 2011. In addition, costs would be incurred because an attorney for the governor would need to review each of the e-mails (estimated at more than 30,000 e-mails) before they could be released, in case any of the e-mails were protected from disclosure by the attorney-client privilege or another privilege. As for the governor’s daily calendars, phone logs and travel records, the magazine’s editors were told it would cost at least $4,700. All totaled, the costs could rise to a whopping $200,000 to obtain all the documents the magazine sought under Mississippi’s Public Records Act. That law provides that “each public body may establish and collect fees reasonably calculated to reimburse it for, and in no case to exceed, the actual cost of searching, reviewing and/or duplicating and, if applicable, mailing copies of public records. Such fees shall be collected by the public body in advance of complying with the request” (emphasis added). Page 376 Violating a state’s open records law can prove very expensive for government entities. For instance, the Iowa Supreme Court in November 2011 held that the city of Riverdale, Iowa, had to pay trial attorney fees of more than $64,000 to three individuals who sought to obtain security camera videotape under Iowa’s Freedom of Information Act.114 In particular, the trio wanted to view security camera video of a confrontation between themselves and Riverdale Mayor Jeffrey Grindle over earlier records requests at the city clerk’s counter. The mayor was advised in writing by the city’s lead attorney that video from city hall security cameras was subject to disclosure, and the mayor even allowed a newspaper reporter to watch it. Nevertheless, the mayor refused to turn it over to the trio of citizens. That proved to be a $64,000 mistake. The Iowa Supreme Court blasted the mayor, writing that “it is untenable for Riverdale to play the video for a reporter covering the dispute between the parties and yet withhold the same video from the defendants who requested it.” VEXATIOUS RECORD REQUESTS & THE BATTLE FOR OBAMA’S BIRTH CERTIFICATE In 2010 Hawaii Governor Linda Lingle signed into law a measure allowing government agencies in the Aloha State to ignore duplicative and substantially similar requests for records that have already been responded to and rejected within the previous year. The law was drafted after so-called “birthers”—individuals who do not believe that President Barack Obama was born in the United States and thus would not be eligible to be president—repeatedly requested Obama’s birth certificate. The Associated Press reported in May 2010 that the Hawaii State Department of Health was still receiving from 10 to 20 e-mails each week seeking verification of Obama’s birth, with many of those requests being made by residents of other states. The danger of the new law, of course, is that it applies to duplicative requests for all types of records (not just to requests for Obama’s birth certificate) and thus it might impact journalists in their day-to-day requests for records when gathering news. Page 377 THE PRIVATIZATION OF PUBLIC GOVERNMENT One of the challenges facing the press today results from the trend of private companies taking over what has been traditionally regarded as government business. For-profit and nonprofit organizations are replacing the government in operating public schools, jails and prisons, state and local welfare agencies, and many other state services. These private agencies are not generally regarded to have the same responsibilities as public agencies to maintain open records or hold meetings in public. For instance, in 2006 the Ohio Supreme Court held in Oriana House, Inc. v. Montgomery that a private corporation called Oriana House, which contracted with Summit County, Ohio, to operate its alternative jail sentencing and rehabilitation programs, was not the “functional equivalent” of a government agency and thus was not subject to the Ohio Public Records Act.115 By a 4-3 decision, Ohio’s high court found Oriana House exempt, even though Oriana House performed duties historically left to government agencies and despite the fact that it received all of Summit County’s funds for running community-based correctional facilities and programs. The majority emphasized, instead, the fact there was “no evidence . . . that any government entity controls the day-to-day operations of Oriana House” and that Oriana House was “created as a private, nonprofit corporation. It was not established by a government entity.” Sadly for journalists and access advocates, the majority concluded that “a private business does not open its records to public scrutiny merely by performing services on behalf of the state or a municipal government. It ought to be difficult for someone to compel a private entity to adhere to the dictates of the Public Records Act.” Although the Ohio ruling is not access friendly, some courts have held differently in similar scenarios. For instance, a judge in Tennessee ruled in 2008 that a private prison company was the functional equivalent of a government agency and thus was subject to Tennessee’s open-records law.116 The judge found it significant that the state’s constitution makes prison maintenance a state function. The private company, Corrections Corporation of America (CCA), operates more than a half-dozen detention facilities in Tennessee. In 2009 the Tennessee Court of Appeals in Friedman v. Corrections Corporation of America upheld the decision. It observed that the state could not delegate away to a private entity its responsibilities. The Tennessee Supreme Court declined in 2010 to hear CCA’s appeal, thus giving a clear victory for access advocates. The Supreme Court of Wisconsin held in 2008 that municipalities may not avoid liability under Wisconsin’s open-records law by contracting with an independent contractor assessor for the collection and custody of its property assessment records, and by then directing any requester of those records to such an assessor.117 PAYING PALIN PROFUSELY PERTURBS PEOPLE: SHOW ME THE MONEY California adopted a law (California Government Code § 6253.31) in 2008 that provides that regardless of its terms, any contract entered into by a state or local agency, including the University of California, that requires a private entity to review, audit or report on any aspect of that agency shall be public to the extent the contract is otherwise subject to disclosure under California’s open records laws. Likewise, the new California law provides that a state or local agency may not allow another party to control the disclosure of information that is otherwise subject to disclosure pursuant to California’s open records laws. The law gained attention in 2010 when Sarah Palin was scheduled to make a paid speaking appearance at a fiftieth anniversary fundraising event for California State University, Stanislaus. People wanted to find out how much she was being paid to speak at the gala. Her compensation for the speech, however, was funded with private money by the nonprofit CSU Stanislaus Foundation, one of 87 foundations created to benefit the California state university campuses by raising private money to pay for things like student scholarships and endowed chairs for professors. The CSU Foundation claimed it was exempt from California’s open records law and did not need to disclose Palin’s paycheck. It also contended that her contract featured a confidentiality clause regarding her speaking fee. Leland Yee, the state senator who sponsored the 2008 law noted above, claimed the law required disclosure if university officials had documentation of her contract. Yee proposed a bill to clarify that university foundations are subject to open records laws in California. Ultimately, in May 2010, California State University released all documents pertaining to the event and posted them online at http://www.calstate.edu/pa/News/2010/release/CalAwarePRA.shtml. Some personal information, such as e-mail addresses, student names and personal donor data, was redacted (blacked out) by CSU due to privacy concerns, a standard procedure in such cases. Page 378 SUMMARY All states have laws that govern access to public meetings and public records. Good state open-meetings laws have strong legislative declarations in support of public meetings, specifically define a public meeting by listing the number of members who must gather to constitute a meeting, and declare void all actions taken during a meeting that was improperly closed to the public. Most laws provide for closed sessions to discuss such matters as personnel actions, real estate transactions and litigation. State open-records laws tend to mirror the federal law. Both state and local agencies are governed by the laws, which apply to most governmental bodies except the legislature and the courts. Most state laws govern all records kept by these agencies, but a few are applicable only to records that are required to be kept by law. Exemptions to state open-records laws include material specifically excluded by other statutes, law enforcement investigatory information, working papers and highly personal information. Most laws provide for access to the judicial system in case a request for data is rejected, but both New York and Connecticut have established commissions to act as arbiters in these matters, and Florida has adopted a constitutional amendment that governs access throughout state government. A major concern facing both journalists and the public today is the growing use of private businesses to carry out governmental functions. Page 379 LAWS THAT RESTRICT ACCESS TO INFORMATION Just as there are laws that provide for public access to government-held documents, there are laws that specifically preclude access to government-held information. There are provisions in scores of federal laws alone that limit the right of access. Tax statutes, espionage laws, legislation on atomic energy and dozens of other kinds of laws are filled with limitations on the dissemination of information (e.g., personal information on taxes, national security questions and matters relating to nuclear weapons). But in addition to these kinds of laws, the federal government has adopted in the past four decades at least three rather broad sets of regulations regarding information held by the government. All three were adopted in the name of protecting the right to privacy. While these regulations cannot be considered here in a comprehensive sense, people who gather information for a living need to be aware of their implications. All three were adopted in the name of protecting the right to privacy. SCHOOL RECORDS The Family Educational Rights and Privacy Act (FERPA), adopted in 1974 and also known as the Buckley Amendment, is a federal law designed to safeguard the privacy of students’ “education records.”118 It applies to all levels of schools (grade schools, high schools and universities) that receive funds under any program administered by the U.S. Department of Education. FERPA, in brief, affects figurewho can access education records (defined as records “directly related to a student” that are “maintained by an educational agency or institution”); and figurewhat information a school may or may not disclose without the permission of either a student or parent. The most recent amendments to its regulations interpreting FERPA took effect in 2009. What follows is an overview of the law. Under FERPA, parents can inspect their child’s education records until their child turns 18 or attends a school beyond the high school level. Thus, in general, parents cannot access education records of their college-attending child, unless their child grants them written permission. Exceptions, however, permit disclosure to a student’s parents without consent if (1) the student is a dependent for federal tax purposes; (2) there is a health or safety emergency involving the student; or (3) if the student is under 21 and violated a law or policy concerning use or possession of alcohol or controlled substances. FERPA impacts journalists covering colleges and universities because it generally prohibits such institutions from disclosing a student’s education records, without that student’s prior consent, if the records contain “personally identifiable information.” Such information includes a student’s name, address, date and place of birth, Social Security and student identification numbers, as well as (under the regulations that took effect in 2009) any “other information that . . . is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty.” Any and all such personally identifiable information, when located in a student’s education records (for instance, a transcript or discipline report), would need to be redacted (blacked out or removed) before the records could be disclosed without permission. The names and addresses of a student’s parents (including mother’s maiden name) and family members also cannot be disclosed without permission. FERPA impacts journalists covering colleges and universities. Page 380 On the other hand, FERPA allows disclosure without consent of so-called directory information (a student’s name, major, address and telephone number, for instance) that might be listed in an online or hard-copy student directory. However, colleges must tell students about directory information and give them a chance to request its nondisclosure; in brief, students must have notice and opportunity to opt out of the disclosure. Does a college student’s e-mail sent to school officials complaining about an instructor constitute an “education record” within the meaning of FERPA or can the instructor find out the complaining student’s name under state open records laws? In 2012, a Florida appellate court held in Rhea v. District Board of Trustees of Sante Fe College that such an e-mail is not an education record because it is not directly related to a student. Instead, it is directly related to an instructor and only tangentially related to a student, and thus the instructor has a right to discover who sent the e-mail complaining about him. Although the decision is binding precedent within one Florida appellate district only, the case illustrates the larger point that to constitute an education record under FERPA, the information in a document must be “directly related” to a student. As the Florida appellate court wrote, “[t]he e-mail focuses primarily on instructor [Darnell] Rhea’s alleged teaching methods and inappropriate conduct and statements in the classroom, and only incidentally relates to the student author or to any other students in the classroom. The fundamental character of the e-mail relates directly to the instructor; the fact that it was authored by a student does not convert it into an ‘education record.’” In a portion of FERPA that is critical for student journalists reporting on campus crime, FERPA states that education records do not include “records maintained by a law enforcement unit of the educational agency or institution that were created by that law enforcement unit for the purpose of law enforcement.” In other words, incident reports, arrest reports, parking tickets and other documents made by campus or university police are not “education records” covered by FERPA and thus they may be obtained without a student’s permission. For instance, a judge in North Carolina ruled in 2011 that traffic tickets issued to student-athletes at the University of North Carolina, Chapel Hill, are not protected from disclosure by FERPA after requests were made for them by several newspapers, including the student-produced Daily Tar Heel. Judge Howard Manning Jr. reasoned that “if a parking scofflaw were to [have] reached the repeated, repeated stage and was referred to disciplinary action, such disciplinary action would be covered under FERPA. However, this remote possibility does not constitute a sufficient ‘threat’ to cloak every student with invisibility about the number of parking tickets he or she receives.” In 2012, the same judge ruled that FERPA did not protect from disclosure information in the University of North Carolina’s statements of facts and responses submitted to the NCAA and relating to impermissible benefits received by student-athletes such as plane tickets, jewelry, clothing, shoes, automobiles, payments to cover parking tickets, monetary gifts and free meals. Judge Manning opined that “[j]ust as in the case of parking tickets, this kind of misbehavior has nothing to do with education. This kind of behavior (impermissible benefits—non-academic) does not relate to the classroom, test scores, grades, SAT or ACT scores, academic standing or anything else relating to a student’s educational progress or discipline for violating the educational rules or honor code, all of which are clearly protected by FERPA.” Victory ultimately came for the Daily Tar Heel, the Raleigh News & Observer and other news organizations in October 2012 when the University of North Carolina agreed to settle the case, produce the records Judge Manning had ordered and pay $45,000 of their legal fees. Many of the documents are now online at http://uncnews.unc.edu/images/stories/pdf/102612.pdf. Page 381 Numerous universities, it should be noted, invoke FERPA (sometimes rightly, sometimes wrongly) to hide potentially damaging information about their athletic programs, student-athletes and even their boosters/donors. For instance, in November 2012 the Post and Courier newspaper reported that the College of Charleston cited FERPA when it repeatedly refused to release incident reports containing the identities of suspects (supposedly varsity baseball players) in the alleged sexual assault of a female varsity softball player. As the Post and Courier story noted, “the information is considered vital, as it would confirm or refute the crux of an argument presented by the alleged victim’s family: that the suspects are baseball players and are being protected because of that.” In 2002 the U.S. Supreme Court issued a 7-2 opinion interpreting the Family Educational Rights and Privacy Act that could help the media obtain campus crime reports and records by reducing universities’ worries about being sued for violating the law. In particular, the court held that FERPA does not give students the personal right to sue their schools for releasing personal material covered by that statute.119 The remedy for violation, the court held, is not an individual lawsuit but, as noted previously, solely the loss to schools of federal funds. HEALTH AND MEDICAL RECORDS In 2003 a new set of privacy rules and regulations went into effect that limit the ability of journalists to obtain information about patients in hospitals and in the custody of other health care providers. The rules, officially known as the Federal Standards for Privacy of Individually Identifiable Health Information, were enacted pursuant to the Health Insurance Portability and Accountability Act of 1996, which is commonly known by the acronym HIPAA (see later in this chapter). The Seattle Times wrote that “for the news media, HIPAA rules will mean that in the event of a shooting, car crash or other newsworthy event, hospitals will disclose no information unless a reporter knows the patient’s name. In the past, reporters could ascertain a patient’s condition in those situations without a name.”120 In a special white paper called “The Lost Stories,” Jennifer LaFleur of the Reporters Committee for Freedom of the Press (RCFP) observed that “under HIPAA, hospitals may release only the name and one-word status of the patient—but only if the patient has agreed to have his or her name released and then only if the reporter has the individual’s full name.”121 LaFleur added that many “journalists around the country report that police and fire departments have cited HIPAA for not disclosing accident information.” Page 382 It is important to note that police and fire departments, along with other law enforcement agencies, are not entities covered by HIPAA. Thus HIPAA does not give the police the power or the right to keep secret information in their reports and logs about accident or shooting victims. The entities covered by HIPAA, in contrast, are health plans, health care clearinghouses and health care providers. The Department of Health and Human Services maintains a Web site devoted to HIPAA and its privacy provisions. It is located at http://www.hhs.gov/ocr/privacy/index.html and journalists seeking information from health care providers should be familiar with its myriad relevant terms and provisions. One very important statement for journalists on that Web site relates to the relationship between HIPAA and state open-records laws. It can be found on a link for frequently asked questions about state public records laws. In particular, the Web site provides that “if a state agency is not a ‘covered entity’ . . . it is not required to comply with the HIPAA Privacy Rule and, thus, any disclosure of information by the state agency pursuant to its state public records law would not be subject to the Privacy Rule.” This makes it clear that police and fire departments, which are not covered entities, cannot hide behind HIPAA to keep information secret that is otherwise open under a state law. Seemingly inappropriate stretches of HIPAA still occur. In 2008 a Nebraska judge cited HIPAA when denying a historical society’s request for records identifying 957 people buried in graves marked only by numbers at a psychiatric institution’s cemetery in Hastings, Neb., from the 1880s through the late 1950s. The records are held by the Hastings Regional Center, a health care provider. Although the burial records in question obviously related to individuals deceased for many decades and despite the general legal maxim that an individual’s right to privacy dies with the individual, Adams County District Judge Terri Harder nonetheless found the records constituted “individually identifiable health information” protected from disclosure by HIPAA and that their release “would reveal that the individual[s] [were] institutionalized for a mental illness or for a condition serious enough to require institutionalization.”122 In 2009, however, the Nebraska Supreme Court reversed the lower court’s decision and allowed access to the names. It wrote that “although HIPAA prevents the release of individually identifiable medical information, it also provides for release of information when required by state law. Nebraska’s public records statutes require that medical records be kept confidential, but exempt birth and death records from that requirement. Our privacy laws also apply to medical records and patient histories, but not to records of deaths. The records sought by ACHS are records of deaths and therefore are public records.”123 THE FEDERAL PRIVACY LAW The Privacy Act of 1974 has two basic thrusts. First, it attempts to check the misuse of personal data obtained by the federal government, the quantity of which has, of course, reached staggering proportions. Second, the law is intended to provide access for individuals to records about themselves that are held by federal agencies. The first objective of the law could be the more troublesome to the press. The act requires that each federal agency limit the collection of information to that which is relevant and necessary, to collect information directly from the subject concerned when possible, and to allow individuals to review and amend their personal records and information. Also, under the act agencies are forbidden from disclosing what is called “a personally identifiable record” without the written consent of the individual to whom the record pertains. Since this section of the law is seemingly contradictory to the spirit of the federal FOIA, Congress was forced to clarify the responsibilities of federal agencies with regard to the law. A provision was added to the Privacy Act that declares that records required to be disclosed under FOIA are not subject to the provisions of the Privacy Act and consequently cannot be withheld from inspection. To the government official with control of information, however, neither the Privacy Act nor FOIA is unambiguous. Page 383 One federal appellate court recently summed up the tension between FOIA and the Privacy Act, writing that “the net effect of the interaction between the two statutes is that where the FOIA requires disclosure, the Privacy Act will not stand in its way, but where the FOIA would permit withholding under an exemption, the Privacy Act makes such withholding mandatory upon the agency.”124 In 2012 the U.S. Supreme Court held in Federal Aviation Administration v. Cooper125 that plaintiffs who win cases under the Privacy Act because a government agency wrongfully disclosed private information about them cannot recover monetary damages for mental or emotional distress allegedly caused by the disclosure. In an example of a court engaging in statutory construction (see Chapter 1), Justice Samuel Alito wrote for the majority that the term “actual damages” used within the Privacy Act is limited to proof of tangible economic and monetary losses, akin to special damages in defamation law addressed in Chapter 6. How does the Privacy Act of 1974 affect journalists? When journalists receive information from confidential sources that was leaked by those sources in violation of the Privacy Act of 1974, those journalists may be subpoenaed to testify in civil actions filed by the individuals about whom the leaked information pertains. In other words, the person whose information is leaked in violation of the Privacy Act of 1974 will file a lawsuit under the act and then try to find out who leaked it by subpoenaing the journalists who received it from confidential sources. CRIMINAL HISTORY PRIVACY LAWS In accordance with the broad scope of the Omnibus Crime Control and Safe Streets Act of 1968, the federal Law Enforcement Assistance Administration, an agency created by the Nixon administration to help local police forces fight crime, sought to develop a national computerized record-keeping system. The system that was established permits any police department in the nation to have access to the records of virtually all other police departments. Congressional concern about the misuse of this record system led to limitations on access to the data. Police records have always contained a considerable amount of information that is erroneous, out-of-date or private. The centralized record-keeping system presents a problem referred to by some writers as the “dossier effect.” The contrast between these computerized and centrally maintained records immediately accessible across the country and those police records of the past was sharp and immediately evident: Fragmented, original-source records kept by a single police agency for a limited geographical area were not readily accessible because of their bulk and associated indexing problems. Hence, federal policy mandated that states, if they wish to participate in the national record-keeping system, adopt rules that, among other things, limit the dissemination of some criminal history nonconviction data. Page 384 The “Code of Federal Regulations” (“Criminal Justice Information Systems”) defines nonconviction data as arrest information without disposition if an interval of one year has elapsed from the date of arrest and no active prosecution of the charge is pending, or information disclosing that the police have elected not to refer a matter to a prosecutor, or that a prosecutor has elected not to commence criminal proceedings, or that proceedings have been indefinitely postponed, as well as all acquittals and all dismissals. As a result of the state laws, press access to criminal history records kept by the police has been virtually eliminated unless data sought are pertinent to an incident for which a person is currently being processed by the criminal justice system, are conviction records, or are original records of entry, such as arrest records, that are maintained chronologically and are accessible only on that basis. Reporters can also obtain information about arrests not resulting in conviction, however, if they are aware of the specific dates of the arrests. It is hard to determine whether these laws have substantially affected the press’s ability to report on the criminal justice system. A good police reporter usually can gain access to information he or she wants to see. Nevertheless, potential problems are apparent. One commentator noted: On the one hand, the uncontrolled dissemination and publication of certain criminal history records can adversely affect the individual himself. On the other hand, the public and the press must have access to basic records of official action if they are to effectively scrutinize and evaluate the operations of the police, the prosecuting agencies, and the courts.126 The ability to achieve that scrutiny is important. For example, it is possible to envision a situation in which a prosecutor is accused of favoring friends or certain ethnic or racial groups when deciding whether to prosecute arrested persons. Without access to arrest records that can be compared with prosecution records, such a charge would be difficult to investigate. People within the criminal justice system could gain access to the needed records, but history indicates that they must be prodded before they take action. And, of course, prodding is the function of the press. STATE STATUTES THAT LIMIT ACCESS TO INFORMATION All states have statutes that limit access to information that would otherwise be available under a freedom of information law. Washington, for example, has more than 100 different laws that govern the access to particular information. Some of these state statutes are aimed at blocking access to trade secrets; others limit access to information submitted to the state in compliance with environmental laws. In 2001, in direct response to the racetrack death of driver Dale Earnhardt at the Daytona 500 and the subsequent request for autopsy photographs by the Orlando Sentinel and other newspapers, the Florida legislature passed a bill that makes confidential and exempt from that state’s public records act photographs and videotapes of autopsies.127 The newspapers had sought access to the photographs to determine the reasons for Earnhardt’s death and, in particular, whether a particular safety device might have saved his life. In 2002 a Florida appellate court upheld the constitutionality of that statute and its retroactive application, and the Supreme Court of Florida declined to hear the case in July 2003, letting the appellate court decision stand.128 Finally, in December 2003, the U.S. Supreme Court declined to hear the case.129 All states have statutes that limit access to information that would otherwise be available under a freedom of information law. Page 385 The Pennsylvania Supreme Court ruled in 2009 that autopsy reports are official records subject to disclosure under Pennsylvania’s open records laws. The Pennsylvania high court noted, however, that trial court judges may protect autopsy reports from disclosure based on judicial discretion and necessity under appropriate circumstances, adding that “this inherent power provides trial courts with the means to limit public access to autopsy reports (or portions thereof) based on privacy or privilege concerns where warranted.”130 IMAGES OF DEATH AND OPEN RECORDS BATTLES: THE INTERNET IS THE GAME CHANGER Legislative bodies across the nation are expanding exemptions from their state open records laws for death-scene images and autopsy photos. In 2013, Texas lawmakers considered a bill that would generally prevent the release by state agencies of any “sensitive crime scene image.” Texas Senate Bill 1512 defines such an image as “a photograph or video recording that depicts a deceased person in a state of dismemberment, decapitation, or similar mutilation or that depicts the deceased person’s genitalia.” The bill allows such images to be viewed and copied by “a bona fide member of the news media who is engaging in a news-gathering activity,” but only then in accordance with a court order. Florida enacted a law in 2011 that exempts from the Sunshine State’s generally favorable open-records laws photos, videos and audio recordings of killings (the measure allows “a surviving spouse of the decedent” to view and copy such images and to listen to audio recordings). Lawmakers in Georgia rushed to pass a statute in 2010 exempting “photographs, videos, or other depictions compiled by law enforcement of any individual in a state of partial or complete nudity, depicting the dismemberment of a body part or depicting an injured or deceased individual.” The move came after a writer for Hustler magazine requested the Georgia Bureau of Investigation’s file on the murder of Meredith Emerson, a hiker who was stripped naked and decapitated in the Georgia woods. The Hustler writer was working on a story about Emerson’s murderer, Gary Michael Hilton, and the GBI’s file included photos of Meredith’s nude, decapitated body. As Frank LoMonte, head of the Student Press Law Center, wrote in a July 17, 2012, posting on his organization’s Web site, “[a]lthough autopsy reports traditionally are public record, privacy advocates are gaining traction across the country in seeking confidentiality, in part because of concerns that gruesome photos upsetting to the survivors may be widely distributed online.” LoMonte noted, for instance, that Illinois generally allows access, except that officials may withhold autopsy photos that are deemed excessively “graphic.” These battles, which likely will continue throughout the current decade, illustrate a growing tension between a right to privacy and the public’s right to know—a tension exacerbated by the Internet, where death-scene and autopsy images often go viral and live on forever. Page 386 Divorce is another area where some states adopt statutes limiting public access to certain records. For instance, in 2006 a California appellate court in Burkle v. Burkle struck down a state statute that allowed a party in a divorce case, upon request to a judge, to have sealed in their entirety any and all court documents referencing in any way the financial assets and liabilities of the parties getting divorced.131 Although the court acknowledged privacy interests of divorcing parties in financial information (including the possibility of identity theft), it nonetheless found that “the First Amendment provides a right of access to court records in divorce proceedings” and held the statute was overbroad and not narrowly tailored to protect privacy interests. In particular, the statute mandated a judge to automatically seal in their entirety court pleadings relating to financial information even if they just briefly mentioned that information, rather than providing the judge with discretion to redact only those specific parts of the documents relating to financial information that actually could harm privacy interests. Courts in other states have struck down similar laws—sometimes based on a First Amendment right of access, sometimes based on a state constitutional right of access.132 In 2009, when Jon and Kate Gosselin, stars of the reality series “Jon & Kate Plus 8,” filed for divorce, they did so in Montgomery County, Pa. (rather than their own Berks County), where divorce filings are automatically sealed from public view. It apparently was one of the few things in their lives they didn’t want publicly exploited. Jon and Kate Gosselin filed for divorce where filings are secret. THE ABUSIVE RECORD REQUESTER: NEW EFFORTS BY STATES TO STOP EXCESSIVE REQUESTS In 2009 Assembly Bill 520 was introduced in California that would allow state court judges there to issue protective orders limiting the number and scope of requests a person may make under the California Public Records Act if judges determine that the requestors have sought records for “an improper purpose” such as harassment of a public agency or its employees. The state of Washington passed a law in 2009 that allows state government agencies to obtain injunctions preventing prisoners in that state from obtaining records if the requests are made to harass or intimidate the agencies or its employees or if the requests might assist criminal activity. Other states either are considering or have considered similar measures to stop abusive record requests. Page 387 SUMMARY All the states and the federal government have laws that specifically exclude certain kinds of information from the public scrutiny. 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Clarifying and Protecting Right of Public to Information. 89th Cong., 1st Sess., 1965, S. Rept. 813. Weiner, Tim. “Lawmaker Tells of High Cost of Data Secrecy.” The New York Times, 28 June 1996, A9. ———. “U.S. Plans Secrecy Overhaul to Open Millions of Records.” The New York Times, 18 March 1994, A1. Wicklein, John. “FOIA Foiled.” American Journalism Review, April 1996, 36. Page 390 1. Memorandum for the Heads of Executive Departments and Agencies, Freedom of Information Act, Jan. 21, 2009, available online at http://www.whitehouse.gov/the_press_office/FreedomofInformationAct. 2. Shane, “U.S. Reclassifies Many Documents.” 3. See Rourke, Secrecy and Publicity; and Padover, The Complete Madison. 4. Zemel v. Rusk, 381 U.S. 1 (1964). 5. Branzburg v. Hayes, 408 U.S. 665 (1972). 6. 417 U.S. 817 (1974). 7. 417 U.S. 843 (1974). 8. Pell v. Procunier, 417 U.S. 817 (1974). 9. Houchins v. KQED, 438 U.S. 1 (1978). 10. Houchins v. KQED, 438 U.S. 1 (1978). 11. 570 F. 3d 798 (7th Cir. 2009), cert. den., 559 U.S. 991 (2010). 12. Richmond Newspapers v. Virginia, 448 U.S. 555 (1980). 13. See, for example, Press-Enterprise Co. v. Riverside Superior Court, 464 U.S. 501 (1984). 14. American Broadcasting Companies, Inc. v. Ritchie, 36 M.L.R. 2601 (D. Minn. 2008). See also CBS, Inc. v. Smith, 681 F. Supp. 794 (S.D. Fla. 1988) (holding that it is “clear that the conduct of exit polling and journalistic interviews are protected by the First Amendment guarantees of free speech and free press”); and Daily Herald Co. v. Munro, 838 F. 2d 380 (9th Cir. 1988) (holding that exit polling is “speech that is protected, on several levels, by the First Amendment”). 15. CNN v. ABC, 518 F. Supp. 1238 (1981). 16. WJW v. Cleveland, 686 F. Supp. 177 (1988). 17. California First Amendment Coalition v. Woodford, 299 F. 3d 868 (2002). 18. 682 F.3d 821 (9th Cir. 2012). 19. 36 M.L.R. 1405 (E.D. Ark. 2008). 20. Rice v. Kempker, 374 F. 3d 675 (2004). 21. 437 F. 3d 410 (4th Cir. 2006). The governor’s order provided in relevant part that “effective immediately [author’s emphasis], no one in the Executive Department or Agencies is to speak with David Nitkin or Michael Olesker until further notice. Do not return calls or comply with any requests. The Governor’s Press Office feels that currently both are failing to objectively report on any issue dealing with the Ehrlich-Steele Administration.” 22. 2005 U.S. Dist. LEXIS 9476 (N.D. Ohio 2005). 23. 34 M.L.R. 2036 (6th Cir. 2006). 24. Permanent Injunction, Citicasters Co. v. Finkbeiner, Case No. 07-CV-00117 (N.D. Ohio 2007). 25. U.S. v. Matthews, 11 F. Supp. 2d 656 (1998). Matthews was sentenced to 18 months in prison. 26. U.S. v. Matthews, 209 F. 3d 338 (2000), cert. den., 531 U.S. 910 (2000). 27. 408 U.S. 665, 691 (1972). 28. Desnick v. American Broadcasting Companies, Inc., 44 F. 3d 1345, 1351 (1995). 29. “Judge Upholds Reporter’s Trespassing Conviction,” Arizona v. Wells, 2004 WL 1925617 (Ariz. Super. 2004). 30. Arizona Revised Statute § 13–1504 (2004). 31. Baugh v. CBS, Inc., 828 F. Supp. 745 (1993). 32. Desnick v. American Broadcasting Companies, Inc., 44 F. 3d 1345 (1995). 33. 38 M.L.R. 1306 (3d Cir. 2010), cert. den., 131 S. Ct. 150 (2010). 34. Bevers v. Gaylord Broadcasting Co., 30 M.L.R. 2586, 2590 (2002). 35. Wilson v. Layne, 526 U.S. 603 (1999). 36. Hanlon v. Berger, 526 U.S. 808 (1999). 37. Berger v. Hanlon, 129 F. 3d 505 (1997). 38. Berger v. Hanlon, 188 F. 3d 1155 (1999). The rancher and his wife were absolved of all felony charges, but the search was nevertheless broadcast 10 different times by CNN. 39. “CNN, Federal Government Settle Suit with Montana Rancher.” 40. 683 F. Supp. 2d 798 (N.D. Ill. 2010). 41. City of Houston v. Hill, 482 U.S. 451 (1987). 42. Wolfson v. Lewis, 924 F. Supp. 1413 (1996). 43. Food Lion Inc. v. Capital Cities/ABC, 194 F. 3d 505 (1999); see also Barringer, “Appeals Court Rejects Damages.” 44. Special Force Ministries v. WCCO Television, 584 N.W. 2d 789 (1998). 45. “Journalist Gets Probation.” 46. http://www.rcfp.org/newsitems/index.php?i=12164. 47. California Penal Code § 409.5 (2007). See also Ohio Revised Code Annotated § 2917.13 (2006). 48. Oregon Revised Statute § 401.570 (2006). 49. The 12 all-party consent states are California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington. 50. Flanagan v. Flanagan, 41 P. 3d 575 (2002). 51. 39 Cal. 4th 95 (2006). 52. Perry v. Maryland, 357 Md. 37 (Md. Ct. App. 1999). 53. 794 N.W.2d 842 (Mich. 2011). 54. U.S. Senate, Clarifying and Protecting, 2–3. 55. 2011 U.S. Dist. LEXIS 134123 (C.D. Cal. Nov. 17, 2011). 56. Memorandum for the Heads of Executive Departments and Agencies, Freedom of Information Act, Office of the President, Jan. 21, 2009, available online at http://www.whitehouse.gov/the_press_office/FreedomofInformationAct. U.S. Attorney General Eric Holder issued a memorandum in March 2009 calling for openness when interpreting FOIA and encouraging “agencies to make discretionary disclosures of information. An agency should not withhold records merely because it can demonstrate, as a technical matter, that the records fall within the scope of a FOIA exemption.” Memorandum for Heads of Executive Departments and Agencies, the Freedom of Information Act, Office of the Attorney General, Mar. 19, 2009, available online at http://www.usdoj.gov/ag/foia-memo-march2009.pdf. 57. 714 F. 3d 816 (4th Cir. 2013). 58. Public Law No. 107–296. 59. Editorial, “Reinforce Anti-Secrecy Law,” A24. 60. 857 F. Supp. 2d 44 (D. D.C. 2012). 61. Taylor v. Sturgell, 553 U.S. 880 (2008). 62. Morrissey, “FOIA Foiled?” 29. 63. A copy of the letter can be found at http://www.gwu.edu/~nsarchiv/news/20100115a/WH_letter.pdf. 64. 610 F. 3d 747 (D.C. Cir. July 6, 2010). 65. Rushforth v. Council of Economic Advisors, 762 F. 2d 1038 (1985). 66. Pogrebin, “At Public Board Meeting, Smithsonian Practices New Openness.” 67. Long v. IRS, 596 F. 2d 362 (1979). 68. Citizens for Responsibility and Ethics in Washington v. U.S. Department of Homeland Security, 2009 WL 50149 (D.D.C. Jan. 9, 2009). Another recent opinion related to White House visitor logs is Judicial Watch, Inc. v. U.S. Secret Service, 579 F. Supp. 2d 182 (D.D.C. 2008). 69. Citizens for Responsibility and Ethics in Washington v. U.S. Department of Homeland Security, 527 F. Supp. 2d 76 (D.D.C. 2007). 70. See Chrysler Corp. v. Brown, 441 U.S. 281 (1979). 71. Executive Order No. 12958, 3 C.F.R. 333 (1996). 72. Associated Press v. U.S. Department of Defense, 462 F. Supp. 2d 573 (S.D.N.Y. 2006). 73. 131 S. Ct. 1259 (2011). 74. Sims v. CIA, 471 U.S. 159 (1985). Sims today is a constitutional law professor at the University of the Pacific McGeorge School of Law in Sacramento, Calif. 75. City of Chicago v. U.S. Department of Treasury, 423 F. 3d 777 (7th Cir. 2005). 76. 601 F. 3d 557 (D.C. Cir. Mar. 23, 2010). 77. NLRB v. Sears, Roebuck and Company, 421 U.S. 132 (1973). 78. 935 F. Supp. 2d 86 (D. D.C. Mar. 27, 2013). 79. Department of the Interior v. Klamath Water Users, 532 U.S. 1 (2001). 80. See Judicial Watch, Inc. v. Department of Justice, 365 F. 3d 1108 (D.C. Cir. 2004). 81. Ibid. 82. U.S. v. Nixon, 418 U.S. 683 (1974). 83. Democratic National Committee v. Department of Justice, 539 F. Supp. 2d 363 (D.D.C. 2008). 84. State Department v. Washington Post, 456 U.S. 595 (1982). 85. Kurzon v. Health and Human Services, 649 F. 2d 65 (1981). 86. New York Times v. NASA, 679 F. Supp. 33 (1987). 87. New York Times v. NASA, 852 F. 2d 602 (1988). 88. New York Times v. NASA, 970 F. 2d 1002 (1990). 89. Department of the Air Force v. Rose, 425 U.S. 352 (1976). 90. New York Times v. NASA, 782 F. Supp. 628 (1991). 91. Associated Press v. Department of Justice, 549 F. 3d 62 (2d Cir. 2008). 92. Associated Press v. Department of Defense, 554 F. 3d 274 (2d Cir. 2009). 93. Rosenfeld v. U.S. Department of Justice, 57 F. 3d 803 (1995). 94. Reporters Committee for Freedom of the Press v. Justice Department, 816 F. 2d 730 (1987). 95. Justice Department v. Reporters Committee, 109 S. Ct. 1486 (1989). 96. 541 U.S. 157 (2004). 97. 628 F. 3d 1243 (10th Cir. 2011). 98. 131 S. Ct. 1177 (2011). 99. Gavin v. Securities and Exchange Commission, 2007 U.S. Dist. LEXIS 62252 (D. Minn. Aug. 23, 2007). The SEC has successfully asserted Exemption 8 in other matters. See Bloomberg v. Securities and Exchange Commission, 357 F. Supp. 2d 156 (D.D.C. 2004) (holding the interests behind Exemption 8 “would undeniably be served by exempting documents summarizing a meeting at which financial institutions were encouraged to engage in a candid assessment of industry problems and discussions regarding potential self-regulatory responses”). 100. Citizens for Responsibility & Ethics in Washington v. FEC, 711 F. 3d 180 (D. D.C. Apr. 2, 2013). 101. Knight Open Government Survey 2008, 4–5, available online at http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB246/eo_audit.pdf. 102. Symons v. Chrysler Corporation Loan Guarantee Board, 670 F. 2d 238 (1981). 103. Rushforth v. Council of Economic Advisors, 762 F. 2d 1038 (1985). 104. Philadelphia Newspapers v. Nuclear Regulatory Commission, 9 M.L.R. 1843 (1983). 105. Cross, The People’s Right to Know. 106. 696 F.3d 454 (5th Cir. 2012). 107. 2012 Ark. 452 (2012). 108. Bush, “Access to Governors’ Records,” 135. 109. 133 S. Ct. 1709 (2013). 110. 789 N.W. 2d 495 (Mich. Ct. App. 2010). 111. 786 N.W. 2d 177 (Wis. 2010). 112. 688 S.E. 2d 317 (W. Va. 2009). 113. 663 S.E. 2d 38 (S.C. 2008). 114. City of Riverdale v. Diercks, 806 N.W.2d 643 (Iowa 2011). 115. 854 N.E. 2d 193 (Ohio 2006). 116. Associated Press, “Judge: Private Prison Company Must Produce Records.” 117. Wiredata, Inc. v. Village of Sussex, 751 N.W. 2d 736 (Wisc. 2008). 118. 20 U.S.C. § 1232g (2009). The Department of Education maintains a Web site devoted to FERPA, available at http://www.ed.gov/policy/gen/guid/fpco/ferpa/index.html. 119. Gonzaga University v. Doe, 536 U.S. 273 (2002). 120. Ostrom, “Privacy Rules to Limit Word on Patients.” 121. LaFleur, “The Lost Stories.” 122. Associated Press, “Judge Says Regional Center Burial Records Can Remain Sealed.” 123. Nebraska Ex Rel Adams County Historical Society v. Kinyoun, 765 N.W. 2d 212 (Neb. 2009). 124. News-Press v. Department of Homeland Security, 489 F. 3d 1173, 1189 (11th Cir. 2007). 125. 132 S. Ct. 1441 (2012). 126. Higgins, “Press and Criminal Record Privacy,” 509. 127. Florida Statute § 406.135 (2001). 128. Campus Communications, Inc. v. Earnhardt, 821 So. 2d 388 (2002). The Supreme Court of Florida’s decision not to hear the case came in a close 4-3 vote. 129. Campus Communications, Inc. v. Earnhardt, 124 S. Ct. 821 (2003). 130. Penn Jersey Advance, Inc. v. Grim, 962 A. 2d 632 (Pa. 2009). 131. 135 Cal. App. 4th 1045 (2006). The California Supreme Court declined to hear the case. Burkle v. Burkle, 2006 Cal. LEXIS 5955 (2006). 132. See Associated Press v. New Hampshire, 153 N.H. 120 (2005), which held unconstitutional a New Hampshire law limiting access to divorce records that abrogated “entirely the public right of access to a class of court records,” and emphasized that “the New Hampshire Constitution creates a public right of access to court records.”