Asked and Answered

From the Hotline
Page Number: 
34

In this column, the Reporters Committee attorneys discuss hot-topic questions related to recent issues in media law. Here are our answers.

Q: Can I obtain the governor’s calendar under my state’s open record law?

A: The answer varies from state to state, as few states have provisions in their open records law which directly address whether the public can access the governor’s calendar or schedule. Therefore, this question may require reference to judicial decisions dealing with the question. Case law addressing this issue indicates that the success of an open records request for the governor’s calendar generally depends on the type of calendar at issue and the scope of the record seeker’s request.

As an initial matter, states vary on whether they consider the governor’s calendar to constitute a “public record,” thereby making it subject to the state’s open records laws.

For example, Louisiana’s Public Records Law specifically exempts from disclosure “any records having been used, being in use, possessed, or retained for use by the governor in the usual course of the duties and business of office relating to . . . the governor’s . . . schedule.”

In general, courts that have addressed this question have distinguished between “public” and “private” calendars, holding that governors’ “public” calendars are agency records that fall within the scope of open record laws, and are, therefore, subject to a presumption of disclosure, while governors’ “private” calendars do not.

Governors’ calendars are generally considered to be “public,” and, therefore, agency records if they are an integral or essential part of the functioning of the office. This usually means they document official activities or functions and are used by and disseminated to other agency members.

In contrast, if the governor maintains a private calendar and retains sole custody of it, it will probably not be considered an agency record subject to open record laws.

The Ohio Court of Appeals made this distinction in a case where it held the governor’s “logs, journals, calendars, appointment books and scheduling books” are not public records. The court based its ruling on the fact that no one else in the governor’s office “used, had access to, or had custody of” the calendars, and they were “not circulated within his office for any official purpose.” Also, the calendars did not document official activities or functions, and the governor could discard the calendars anytime. The court noted in its opinion that the governor also made available a public calendar.

However, even if the governor’s calendar is found to be a public record, an exemption in the state’s open records laws could still permit the governor to withhold some or all of the contents of the calendar from release.

For example, governors in California and Kentucky have successfully withheld some or all of their calendars based on exemptions for records that would threaten the governor’s deliberative process. Deliberative process exemptions in open record laws generally seek to safeguard agency officials’ ability to engage in free and uninhibited discussions and correspondence prior to making decisions.

Therefore, open records requests have generally been unsuccessful where they have sought detailed information on everyone with whom the governor has met. Courts have reasoned that disclosing that information would reveal the identities of those who did and did not influence the governor’s decisions, which might in turn, for example, hinder the governor’s ability or willingness to schedule meetings with unpopular people or groups. However, the highest court in Maryland ruled that the governor’s schedule of past appointments were not categorically exempt from disclosure based on the deliberative process rationale, and stated that the governor could ask the lower court to redact certain appointments that he felt would interfere with the governor’s current ability to seek advice from and engage in negotiations with third parties.

Courts in Vermont, Maryland, Pennsylvania and California have applied exemptions covering security or privacy concerns to the disclosure of information such as detailed travel details in governors’ calendars. Therefore, one may be more successful in receiving a governor’s calendar if one agrees to the redaction of the governor’s purely personal or family-related information, as well as information that, if released, might pose a security threat, such as details of the governor’s flight schedule, hotel accommodations and transportation.

Q: Can I get access to trial exhibits while the proceeding is ongoing?

A: Yes, absent exceptional circumstances in which the judge may seal certain pieces of evidence. In fact, because attorneys, not the courts, retain evidence after a trial has ended, it is likely easier for you to gain access to documents and exhibits used in a trial before they are returned to the parties.

Trial exhibits and evidence, once presented to the jury, generally are public. In a case involving radio and television broadcasters’ request for access to copies of taped conversations recorded in then-President Richard Nixon’s office as part of the Watergate scandal and received in evidence in a criminal trial, a federal court in Washington, D.C., emphasized the historic tradition of public access to judicial proceedings and records.

Quoting an opinion from 1894, the court in United States v. Mitchell in 1974 stated, “Any attempt to maintain secrecy, as to the records of the court, would seem to be inconsistent with the common understanding of what belongs to a public court of record, to which all persons have the right of access and to its records, according to long-established usage and practice.”

A federal appellate court that reversed a trial court’s denial of the press’ contemporaneous access to documentary exhibits admitted in the sentencing phase of the trial of Sept. 11 attacker Zacarias Moussaoui explained the reasoning underlying the rule.

“Once . . . evidence has become known to the members of the public . . . through their attendance at a public session of court, it would take the most extraordinary circumstances to justify restrictions on the opportunity of those not physically in attendance at the courtroom to see and hear the evidence, when it is in a form that readily permits sight and sound reproduction,” the U.S. Court of Appeals in Richmond, Va. (4th Cir.), said in 2006 in In re Associated Press.

The logistics of getting access to this material likely vary widely among courts.

As a general rule, advanced planning helps the process go faster and smoother. Thus, if you plan to cover a trial, contact — as early as possible before the proceeding begins — the court’s public information officer, who will coordinate with the presiding judge a procedure for obtaining copies of trial exhibits during the trial. This preparation is particularly important if the case is a high-profile one expected to draw a bevy of journalists, all of whom will be trying to access the same items.

If the trial is taking place in a smaller community, the court may not have a public information officer to help accommodate media requests. If that is the case, contact the administrative office of the courts. In these situations, the pre-trial planning and coordination efforts may take longer, so it would be prudent to reach out to the staff as soon as or shortly after a trial you want to attend is scheduled.

Once the trial is underway, contact the public information officer or court administrator, depending on the setup in that court, if any issues or difficulties in getting access to copies of exhibits or evidence arise. As stated above, you will need to contact the relevant attorneys for copies of these materials after the trial has concluded.

Finally, keep in mind that copying fees may apply, though some courts exempt journalists from charges for copies of evidence.

Q: I want to interview an inmate in a federal prison. What procedures do I have to go through to accomplish this?

A: The Supreme Court has consistently held that the news media has no First Amendment right of access to prison inmates beyond the limited rights granted to the general public. Media contact with inmates in federal prisons is governed by the Bureau of Prisons, a division of the Department of Justice. The rules governing institutional visits and personal interviews are set out in full in federal regulations, but the most important points will be set out here.

The BOP limits interviews to “news media representatives,” which it defines as people whose principal employment is to gather or report news for a newspaper, a news magazine, a national or international news service, or a radio or television news program of a station holding a Federal Communications license. In 1986, the U.S. Court of Appeals in Atlanta (11th Circuit) upheld the constitutionality of this limitation, holding that it was rational for the BOP to distinguish between professional and non-professional reporters, and therefore deny access to an independent journalist. This may mean that online or otherwise non-traditional journalists may have a difficult time getting access to inmates.

In order to either make a general media visit to an institution, or to conduct a personal interview with an inmate, reporters must first apply in writing to the warden of the particular institution, explaining that they are familiar with the rules and regulations governing their behavior at the facility, and agreeing to comply with those rules. Either the media or the inmate may initiate a request for an interview, but the inmate may not receive anything of value as compensation.

Wardens have a great deal of discretion in determining when personal interviews may be given. A warden can deny a request if the journalist fails to comply with required conditions, if the inmate is physically or mentally unable to participate (though this requires a medical officer’s statement), if a juvenile inmate’s parents decline consent, if a court issues an order forbidding an inmate from being interviewed, if the inmate could be physically endangered by the interview, or most broadly if, in the opinion of the warden, the interview would endanger the interviewer or “would probably cause serious unrest or disturb the good order of the institution.” For reasons of security and safety in the administration of prisons, courts are generally quite deferential to wardens’ discretion in this area.

Beyond these factors, the unique particulars of certain inmates may result in different levels of access. For example, federal regulations bar press access to an inmate within seven days before his or her scheduled execution, except by permission of the prisoner and the warden of the facility. And while it may be difficult to establish contact with them, even inmates in administrative segregation can often receive visitors, though they may be subject to heightened time constraints.

Finally, the BOP requires inmates, as a prerequisite to granting an interview, to authorize the institution to respond to comments made in the interview, and to release certain information to the media which relates to those comments. The BOP requests of the news media, in turn, that the agency be allowed to respond to any allegation made in the course of the interview.