From the Hotline

From the Winter 2007 issue of The News Media & The Law, page 46.

The Reporters Committee operates a toll-free hotline for journalists with questions about free press and freedom of information issues. In this column, our attorneys and media lawyers from around the country discuss the latest hot-topic questions.

Note: The attorneys’ answers are not meant to be relied upon as legal advice specific to any reader’s situation. Rather, answers are for informational purposes to help journalists understand how the law affects their work. Consult a lawyer for help with any specific situation, or call the Reporters Committee’s legal assistance hotline for more information or for help in finding an attorney.

Q: The Department of Homeland Security is hosting a conference that will culminate in a publicly distributed report. The topics of all the discussions are not classified, and members of the public have been invited to attend and provide input. However, the press is only allowed to attend the conference’s keynote address and has been barred from other discussions and meetings. Can the department pick and choose what parts of a conference reporters are allowed to attend? Does the Sunshine Act allow me access to this kind of meeting? What types of Department of Homeland Security (DHS) meetings, conferences and other proceedings do reporters have access to under the law?

A: For perspective on this issue, we turned to two attorneys who handle media access issues.

Kevin M. Goldberg, Fletcher, Heald & Hildreth, PLC, Arlington, Va.:

Let’s start with the easiest part first. The Government in Sunshine Act would not allow a reporter to access this type of meeting. That act only applies to “agencies” comprised of two or more members, whereas the DHS is headed by a single person. If this question pertained to a different agency headed by multiple members, such as the Federal Communications Commission, the analysis would then move questions such as whether a quorum of those members were in attendance, whether this conference constituted a subdivision of the agency that is acting on the agency’s behalf, and whether the conference was engaging in the deliberation of official agency business to the point that issues are being discussed that would predispose the commissioners to a voting position. It is also worth noting that, when the Government in Sunshine Act does not apply to agency action, the Federal Advisory Committee Act (FACA) may provide the desired access.

The good news is that neither the Government in Sunshine Act nor FACA is necessary to access this conference. When determining whether an agency event is open to the public, the focus often rests on whether the place or event has traditionally been open to the public. While it is not inconceivable that the DHS might argue that, as a new agency operating in the area of national security, it has no tradition of openness, most government events across the board are traditionally open to the public. Reporters should take heart that access to DHS events could only be prevented in very narrow situations. Conferences would likely be open to the press and public as long as classified information is not being discussed, adequate security could be provided for all participants and attendees, and sufficient space is available. There might also be conditions placed on access to DHS events or offices. This would include a prohibition on unattended wandering through DHS hallways or entry without invitation into DHS employee offices. But even these restrictions must be explained in detail with the opportunity for the reporter to make his or her case for access.

So if the event is open to the public, can the press be restricted from attending? The answer is generally, “no.” Reporters have no more access to an event than the public does, but they do not have less access either. Going back to the characterization of an executive branch agency as a “public forum” for discussion of issues, any restriction on access for an entire class of persons must be “content neutral.” The DHS can limit attendance based on legitimate space or security concerns. It may even be able to limit attendance strictly to those experts in the field that will generate the discussion. But it cannot arbitrarily refuse access to an entire class of persons without a specific reason for doing so. Reporters have the same rights as any member of the public and cannot be barred simply for being reporters any more than the DHS could say “spiders and Visigoths are not allowed.”

Jeffrey J. Pyle, Prince, Lobel, Glovsky & Tye LLP, Boston:

It’s probably unconstitutional for a government agency to open an event like this to the public but close it to the press. The Supreme Court has repeatedly held that the press isn’t entitled to any greater access rights than the public at large. However, it has also suggested that giving the press less access than the public — in effect, discriminating against media representatives — can constitute an undue burden on the First Amendment right to gather the news.

Here, where the attending members of the public are free to tell the world about the happenings in the conference, and no classified material is discussed, the government would have a hard time justifying its no-press rule. The more government action looks like an effort to limit press coverage rather than to prevent disclosure of information properly kept secret, the more likely it violates the First Amendment. If the government could close a public event like this to the press, what other public assemblies could be decreed press-free zones? And on what side of the line between the “public” and the “press” do bloggers, book authors and academics fall?

The Sunshine Act would not be of much help in obtaining access to this conference. That statute requires that any “agency” must hold its meetings in the open, with certain exceptions. However, the act limits the definition of “agency” to those headed by a “collegial body.” It doesn’t apply to agencies headed by single individuals, such as the Secretary of Homeland Security. Where the Sunshine Act does apply, it allows agencies to close meetings, or parts of meetings, if classified information is likely to be discussed.

Q: I understand that in some states, all parties to a conversation must consent if I want to tape the conversation. If I am interviewing a source for a story and I want to get her consent to tape the conversation, must the source explicitly agree to the taping? What if I clearly inform the source that I am taping the conversation, and she continues speaking but never explicitly consents?

A: While written, explicit consent is generally the best way to safeguard against potential problems or violations, some courts will impute “implied consent” when a source does not overtly agree to the taping.

Implied consent occurs when you inform the source that you are recording the conversation, and although the source does not explicitly consent to the taping, she continues the conversation knowing she is being recorded. Armed with this knowledge, the source’s act of continuing to speak can be seen as a waiver of her privacy rights under the taping statute. If she is found to have waived her rights by continuing the conversation, she will be stopped from asserting those rights at a later time.

For specific information on your state’s taping law, see our “Can We Tape?” guide at www.rcfp.org/taping/index.html.

Q: How can I obtain the FBI files of a notable person who has recently died?

A: Request them directly from the FBI. When someone dies, his FBI file becomes subject to release pursuant to the Freedom of Information Act.

According to the FBI, it does not maintain an FBI file on every citizen in the country. For those whom it does have a file, the Privacy Act prevents its release until the subject dies.

What is in an FBI file? An FBI file is different than a “rap sheet.” A file contains reports on FBI investigations. A rap sheet is a list of information taken from fingerprint cards, arrests, federal employment, naturalization, or military service. An individual may obtain a copy of his or her own rap sheet by requesting it directly from the FBI.

Beware: Just because someone has died, it does not mean you will receive everything contained in his FBI file. The bureau may still assert a basis independent from privacy for withholding information contained in the file. For example, the FBI withheld files on former Beatle John Lennon for a quarter century after his death, claiming their release could cause “military retaliation against the United States.”