From the Fall 2004 issue of The News Media & The Law, page 25.
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.
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 recent deluge of reporter subpoenas has many journalists and editors concerned that they could be unwillingly drawn into legal controversies. In order to avoid potential subpoenas, should a newsroom adopt a policy of routinely destroying all notes and unpublished material after a story has been published?
A: To answer this question, we asked for comments from two attorneys who often must advise on these issues.
Barbara Wartelle Wall, Vice President & Associate General Counsel, Gannett Co. Inc.: Though the current spate of decisions in the federal courts refusing to recognize the reporters privilege is troubling, I don’t think it’s necessary to adopt the type of draconian notes policy you suggest — at least not yet! I say this in part because I don’t think the tail (i.e. the threat of a subpoena) should wag the dog (i.e. the editorial mission of the news organization).
On the issue of reporters notes, I have always felt that it’s unwise to have a newsroom-wide retention policy. The reason I say this is that in libel suits, plaintiff’s counsel frequently will ask for the reporter’s notes. If the newsroom has a policy calling for the retention of notes for a certain period of time, and if the reporter for the story at issue has failed to follow the policy, plaintiff’s counsel will inevitably assert that the notes were thrown away to cover up sloppy reporting. In these cases it would have been far better to have no notes retention policy at all than to have a policy that was broken, however benign the reporters’ reasons for discarding the notes may have been.
On the other side of the issue, I’ve also seen cases in which notes were retained by the reporter, but the plaintiff’s counsel has distorted the notes to try to undermine the reliability of the reporting. Usually this happens when the reporter’s notes include shorthand or other abbreviations — and drop a word here or there. Notes of that type are no fun to explain during blistering cross examinations, believe me! I’ve also seen cases where notes were retained and have been extremely valuable in defending a lawsuit.
Thus, the bottom line is that it’s best not to have a newspaper-wide “one-size-fits-all” notes policy. Instead, each reporter should make an honest assessment of how useful his or her notes might be down the road — either in future reporting or in the defense of a lawsuit. On the basis of that evaluation, the reporter should set up a system for keeping notes and other material — and then follow that policy religiously.
Depending on the outcome of the reporters privilege cases currently pending in the courts, it may be necessary to revisit this issue down the road. For now, however, I think reporters and editors should continue to use their own good judgment in deciding whether to retain notes and other background material.
Susan Grogan Faller, Frost Brown Todd, Cincinnati: I am frequently asked at seminars and conferences what my view is on newsroom policies of routinely destroying notes and unpublished material after a story has been published or broadcast. I usually respond that a consistent policy should be followed (though it need not be in writing), and that I do not recommend saving the material. The reason for this is, simply, that if it does not exist it cannot be obtained by subpoena. Being able to respond to a subpoena by saying that the requested material simply does not exist is clearly the easiest, least time-consuming and least expensive alternative for a newsroom.
It is particularly important to be consistent, because aberrations may draw fire in litigation or an investigation of some sort. Keeping one set of notes or tapes or other unpublished material in violation of the usual newsroom policy will no doubt subject the person responsible to a number of questions about why this occurred and what is unusual about this circumstance. On the other hand, not having notes or unpublished material regarding a particular contested matter may give rise to numerous questions, adverse implications and even sanctions if it is the policy of the reporter or newsroom in question generally to save such material. Missing notes, like erased tapes, always arouse curiosity — and worse.
I have had reporters tell me on numerous occasions that they saved notes or other materials that will vindicate their actions and be extremely helpful in defending a lawsuit. It is my experience that this rarely is the case. A crafty adverse attorney or prosecutor can often take routine, or even seemingly helpful, notes and through a series of well-planned questions, make them seem to actually refute the reporter’s position. In any event, questioning the reporter about his or her notes lends itself to intruding into the reporter’s mental processes, which we want to avoid at all costs. Lengthy depositions or court examinations about a reporter’s notes or unpublished material are part of the “chilling effect” on the media that New York Times v. Sullivan and other case law is intended to prevent.
In sum, if you were asking me as a litigator whether I would like to see newsrooms saving notes and unpublished material after publication, or whether it is fine with me if they no longer exist, my preference is the latter.
Q: I plan to write a story on the impact of Florida’s drug courts. A judge will permit me to observe juvenile drug court proceedings only if I sign a confidentiality agreement. Aren’t these proceedings open to the public?
A: Dade County, Florida established the first “drug court” some 15 years ago. Since then, their popularity has skyrocketed nationwide, with drug courts operating in 48 of the 50 states. Although the systems vary, their general purpose is to provide treatment-based programs instead of prison sentences for certain drug- and alcohol-related offenses.
Drug courts often operate as a court-within-a-court. States may establish adult drug courts, juvenile drug courts, family drug courts, or even combination adult/juvenile/family courts. Public access to these proceedings may depend on the jurisdiction of the court.
In Florida, juvenile proceedings are presumed closed to the public. This is not unusual; all 50 states have some form of law to limit public access to juvenile proceedings. Courts have justified closure by saying it protects children from stigma and promotes rehabilitation.
Juvenile cases are not automatically kept from the public, however. In Wyoming, for example, drug-court proceedings in the circuit courts (which have jurisdiction over misdemeanors) and municipal courts are open to the public, whether the defendant is an adult or a juvenile. But Wyoming also has drug courts in its district courts, where juvenile proceedings are confidential under state law.
If the question of access is not covered by state statute, the court will employ the familiar “experience and logic” test to determine whether a proceeding is presumed open to the public. The court will ask whether the place and process historically have been open to the press and public, and whether public access plays a significant role in the functioning of the process. Once presumed open, the proceeding may be closed only if it is essential to preserve a compelling interest and closure is narrowly tailored to serve that interest.
Q: I am a news editor for a Nevada newspaper, and I have recently noticed that there is a copyright notice on the University of Nevada regents meeting minutes posted online. Some of these minutes date back to the 19th century. Even if their copyright was registered, it would have expired by now anyway, but I want to establish that the regents should not be copyrighting public records in the first place. I vaguely recall that it is a fairly well established principle of law that governments in the U.S. can’t copyright much of anything. Can you elaborate?
A: You are remembering what is called the “government works exception” to the Copyright Act. The government works exception is found at 17 U.S.C. §and reads: “Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.”
As the plain language of the statute indicates, the government works exception only prohibits the U.S. government from owning a copyright, but not state and local government bodies such as the University of Nevada regents. A number of court cases have upheld this reading of the law.
The mere fact that a public record is copyrighted, however, should not preclude its disclosure pursuant to FOI law. Although no Nevada case law considers the intersection of FOI law and the Copyright Act, courts in other jurisdictions have ordered copyrighted records’ release. In Russo v. Nassau Cty. Community College, for instance, the New York Court of Appeals in 1993 granted the release of copyrighted films that had been screened at a publicly-funded university.
Once they obtain access to a copyrighted public record, reporters must be mindful of the owner’s intellectual property rights in order to protect themselves from a copyright infringement lawsuit. “Fair use” doctrine provides reporters with an important exception to a copyright owner’s exclusive rights. The doctrine permits individuals to use copyrighted work, within limits, for criticism, news reporting, teaching, scholarship, or research.