In 1973, Oregon’s open meeting law codified what may be a unique arrangement between reporters and government bodies — news media representatives were allowed into executive sessions so long as they didn’t report on what happened there.
In most states, executive sessions of any governing body are closed to everyone. Boards and councils use the meetings to discuss real estate transactions, employee discipline, ongoing litigation and a variety of similar things allowed under state open meetings laws.
But the longstanding arrangement in Oregon is creating new tension — a blogger asked if he could attend an executive session of a city council meeting and he was told no.
In response, the city of Lake Oswego drafted a policy on who would qualify as a “representative of the news media.”
It is, undoubtedly, a harsh policy: News media representatives have to work for an organization that is registered with the state Corporations Division; the names of responsible and accountable staff of the organization must be available, with phone numbers; news reports must include the writer’s name; the organization must have a process for handling complaints; and the representatives must adhere to the SPJ ethics code.
David Powell, the city attorney who wrote it, said he wants to have an answer in place for the next blogger who asks to attend an executive session. “We can’t be, as government, arbitrary,” he said. “We have to come up with some sort of near-objective standards.”
He explained the statute in Oregon distinguishes between the news media and the public, letting only the former into executive sessions.
“If there’s no distinction between the public and the media, the whole thing falls apart,” Powell said.
However, Powell’s draft has drawn criticism from several media groups. Wendy Culverwell, the president of the state’s Society of Professional Journalist chapter, said, “We do think that the city has overreacted, that this policy goes well beyond the state law.”
The policy creates a high standard that few media outlets can reach. And it’s nearly impossible for a blogger to do so.
Yet, Powell said, if a blogger or online-only publication could meet those criteria, it would be allowed into the executive session.
Powell said he was looking for three qualities in enumerating those criteria: Responsible, accountable, and institutionalized news media outlets.
The qualities stem from a 1979 state attorney general opinion addressing the question of whether a school newspaper qualified as news media under the statute.
The criteria, though, essentially exclude newer media outlets. Powell said that is because he tried to look at the statute and the opinion — drafted in a time when there tended to be only one local newspaper and television station in town — and ask, “What was it about the newspaper and the TV station that gave it that accountability?”
According to Powell, this problem isn’t about the First Amendment and who can report news, it’s about interpreting a statute that requires government bodies to define representatives of the news media.
The reporters who come to the executive sessions can’t report at all, he pointed out.
If there is an underlying First Amendment problem, he said it’s with the statute the legislature passed in 1973.
“Should there be a distinction between the public and the media? If there can’t be, than we can’t have the law this way,” he said. “What I want as a city attorney is clear guidance to my city council what that law means.”
Charles Davis, director of the National Freedom of Information Coalition in Missouri, said the policy and the law seem to "radiate outward from a flawed conceptualization of what an executive session is, and who can attend them. If a member of the press is present, then how can the public body rightfully excuse others who have an interest in covering them, unless they pick and choose?"
Powell says he’s open to creative suggestions for dealing with the problem, but so far the suggestions have amounted to advice not to do anything. That’s not an option, he said.
But neither is this proposed policy, as it stands.
"This policy, as drafted, would be virtually impossible to effectuate absent hours of staff time, detailed analysis of a blog’s content, and a determination of who is and is not performing journalism," Davis said, "which naturally would give rise to very real First Amendment issues."
The city could consider other options beyond this proposal — a new opinion from the state attorney general on the law, borrowing a definition of the news media from another statute, such as the state’s shield law, or turning to the legislature to fix the problem.
In any case, it’s clear this policy isn’t the answer. But if a better answer is to be had, then it’s going to mean constructive input from all media groups — from traditional newspapers to online-only outlets — in creating a workable policy.
Or perhaps, as Powell, suggested, the state law will have to give way, and no one will be allowed into executive sessions.