Asked & Answered

Answers are not meant to be relied upon as legal advice specific to any reader’s situation, but are for informational purposes to help journalists understand how the law affects their work.

Q: Can I attend bench conferences during a trial?

A: Oftentimes, the judge presiding over a case and the parties’ attorneys need to discuss matters outside the presence of the jury. In most instances, these conversations involve legal issues that, under the rules of evidence, may not be disclosed to jury members deliberating the case. Where the discussions are likely to be short, the judge, in an attempt to keep the trial moving in a timely and efficient manner, often opts to not require the jury to leave the courtroom but to hold a private session with the lawyers at the bench. Because these discussions are part of the criminal proceeding, the court reporter is required to record them just as he or she must do for all other parts of the trial held in open court. The question then arises whether journalists covering the proceeding may walk to the bench to hear what is being discussed in these so-called bench, or sidebar, conferences.

The U.S. Supreme Court consistently has recognized that the public and press have a First Amendment-based right of access to judicial proceedings, at least in criminal cases. With few exceptions, the closure of criminal trials is presumptively unconstitutional. However, both the high court and lower courts have acknowledged that bench conferences are one of the generally recognized exceptions to this strong presumption of openness. As Justice Brennan stated in his concurring opinion in Richmond Newspapers, Inc. v. Virginia, the first Supreme Court opinion to recognize this constitutional right of access, “when engaging in interchanges at the bench, the trial judge is not required to allow public or press intrusion upon the huddle.”

So most courts will not be legally required to allow you contemporaneous access to bench conferences. However, some courts allow such access in practice, so it is always worth inquiring with the court before a trial begins.

It is also important to note that at least one federal appellate court has held that a right of access may attach to transcripts of sidebar conferences in which evidentiary matters are decided.

In that case, United States v. Smith, the U.S. Court of Appeals in Philadelphia (3rd Cir.) affirmed a lower court ruling that granted Philadelphia Newspapers Inc.’s request to unseal transcripts of bench conferences in a federal criminal trial involving the bribery of a high-ranking Pennsylvania official. The Third Circuit reasoned that “[a]lthough the public and press may be justifiably excluded from sidebar and chambers conferences even when substantive rulings are made, the public interest in the ruling is not diminished. At some stage, and we need not in this case decide precisely when, that ruling must be available for public review so that the purposes of open trials can be satisfied.”

As this opinion suggests, it is difficult to determine how much time must elapse after the sidebar conference before a judge would release the transcript of the discussion. In the Smith case, the judge unsealed the documents the next morning, although he delayed their release for 10 days to allow the parties time to appeal the decision. This suggests that a journalist seeking access to the transcripts would be well served by making that request known to the presiding judge as soon as possible, maybe after court has adjourned for the day or perhaps as early as any recesses following the conference. Keep in mind that under this jurisprudence, the right of access to bench transcripts is based on the common law, which has a more relaxed standard for courts to apply when evaluating requests to seal judicial documents.

Q: In response to my public interest fee waiver request in a federal Freedom of Information Act request, the agency wants me to demonstrate my “expertise in the subject area” of the records. What does this mean, and how should I respond?

A: Your “expertise” in the records’ subject area may be relevant when you request a public interest fee waiver based on your claim that disclosing the records would be in the public interest — rather than a primarily commercial interest — because it will likely “contribute significantly to public understanding” of government operations or activities.

Many agencies’ FOIA regulations provide that in evaluating the likely contribution to public understanding of the subject that will result from disclosure, your identity and qualifications should be evaluated to determine whether you have the ability or skills to understand, synthesize, and convey the information in the records you seek, thereby enabling you to confer a benefit on the public. For example, the Justice Department’s regulations state that requesters’ “expertise in the subject area and ability . . . to effectively convey information to the public shall be considered.” The Justice Department’s Office of Information Policy has issued guidance reflecting this policy.

Generally, agency regulations provide agencies must presume that news media representatives possess the requisite expertise. For example, the Department of Commerce’s regulations state that it will presume news media representatives “satisfy this consideration.” In general, agency regulations define news media representatives as those who gather and publish or broadcast news.

However, you can also choose to further substantiate the requisite “expertise.”

You can demonstrate your expertise in the subject matter by citing specific work product you have generated relating to the topic, such as news stories or reports, or relevant activities, such as past work or research. If possible, attach copies of supporting documentation to your letter and highlight any examples of your use of agency records. A federal court held a FOIA requester demonstrated the requisite expertise on the topic of cultural resources where the requester cited a report it released, recommendations it made to agencies, and contracts it entered into with archeologists — all related to cultural resources.

If you do not have specific subject area knowledge, you may provide examples of your past analysis and dissemination of agency records. Where the information is highly technical, you should emphasize — where possible — that the information you seek is not yet publicly available. For example, a federal court rejected an agency’s argument that releasing the records at issue would not significantly contribute to the public’s understanding because the information was too technical. It ruled that since little information on the subject was then publicly available, dissemination of the information — regardless of the requester’s plans to interpret it — would enhance public understanding.

If even after you demonstrate your “expertise” in an administrative appeal to the agency, your fee waiver request is refused, consider contacting the Office of Government Information Services (https://ogis.archives.gov/) for free FOIA dispute resolution services. 

Q: I have been covering a civil lawsuit and the parties just settled. The terms of the settlement are confidential, but I have a source who wants to tell me what was contained in the settlement. What legal issues do I need to be aware of before I publish a story?

A: As is often the case when reporting information disclosed by confidential sources, the immediate legal risk is not to you as the reporter, but to the source. If a person is required by a settlement not to disclose any information, they could face liability for breach of contract or contempt of court for disclosing confidential information. This could, in turn, result in a subpoena to you to reveal your source. Whether you will need to comply with this subpoena will depend on whether the case occurred in state or federal court, whether your state has a shield law, and whether the protection such a shield law offers for confidential sources is absolute or qualified. The qualified reporter’s privilege under the First Amendment may also be a source of protection.

In two cases in 2000, the U.S. Court of Appeals in Richmond, Va. (4th Cir.) reversed a U.S. District Court decision that had held two reporters and a newspaper in contempt for reporting the contents of a confidential settlement agreement. In Ashcraft v. Conoco, Cory Reiss, a reporter for the Morning Star in Wilmington, N.C., learned about a confidential settlement in a large environmental lawsuit between an energy company and 178 trailer park residents. The parties agreed that the terms of the settlement, including the amount — $36 million — should remain confidential, and asked the court to keep the agreement under seal, which the court did.

Reiss learned the amount of the settlement from two anonymous sources, and another reporter confirmed the amount from court documents. Reiss published a story about the settlement. The district court ordered him to identify the source. When he refused, the court held him in contempt.

The Fourth Circuit reversed because the settlement agreement should not have been sealed. The district court had failed to follow the correct procedures to seal a document, including giving public notice of the request to seal and an opportunity for interested parties to object, considering less drastic alternatives, and providing specific reasons for sealing the documents. Because the settlement should not have been sealed, there was not a need sufficiently compelling to overcome the qualified reporter’s privilege. The court noted, however, that if the agreement had been properly sealed, the result may have been different.

The district court had also held in contempt the reporter who inspected the court documents. The court clerk gave Kirsten Mitchell a large stack of documents, removing one envelope because it was under seal. Mitchell then perused the file, finding the settlement agreement and confirming the amount. On the back of the agreement’s envelope, noticed by Mitchell only after the fact, were the words “CONFIDENTIAL SETTLEMENT AGREEMENT FILED UNDER SEAL TO BE OPENED ONLY BY THE COURT.” For viewing this document, the court held her in both criminal and civil contempt, and she and the Morning Star were fined approximately $600,000.

The Fourth Circuit reversed Mitchell’s contempt citation for a number of reasons. Besides the fact that the settlement was improperly sealed, the clerk had removed one sealed document from the stack, meaning Mitchell could reasonably have believed that she was entitled to view the rest of the file.