From the Fall 2006 issue of The News Media & The Law, page 30.
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 local school board has contracted out its bus operations to a private company. I have learned that two of those bus drivers may have criminal records. Am I allowed to access the personnel records of those drivers maintained by the private bus company?
A: For perspective on this issue, we turned to two attorneys who handle freedom of information issues.
Sigmund D. Schutz, PretiFlaherty LLP, Portland, Maine:
Get the contract. The contract may provide the school board with the rights to screen bus company drivers, audit certain bus company records, or otherwise give the school board the right to access bus company records of interest. Even if the school board does not have possession of the records, if it has the right to access those records control over the records you may well have a basis to demand them under your state’s sunshine law. I would argue that there is public access to the bus company records to the same extent that the school board itself has a right to access those records.
If the bus company’s contract gets you nowhere, you face the question of whether a private bus company is subject to your state’s open records law. Different states have different standards. In general, I would not expect that a typical private bus company would be subject to open records laws, unless its ties to the school board are more extensive than the question suggests. If the bus company is substantially funded by the school board, has school board members (or officials) in management positions, has significant school board control over its functions, performs what is ordinarily deemed a public service in the jurisdiction in question, or otherwise functions as a quasi-public entity, it could be considered a public entity subject to sunshine laws. Using an independent contractor to perform a traditional public function may well subject that independent contractor to state public records laws. If so, bus company records are subject to your state’s sunshine laws.
Finally, does the status of the records as “personnel” records change matters? State laws commonly protect certain types of personnel records. The scope of protection varies from state to state and, often, according to the type of employee. I expect that criminal convictions are a matter of public record whether or not contained in the personnel file (or on court dockets). In addition, personnel records are sometimes protected only for employees or certain public officials, but not for independent contractors. If so, the fact that the person is an independent contractor may strip him of whatever protection he might have enjoyed if that person had been an actual school board employee.
Teri Henning, general counsel, Pennsylvania Newspaper Association, Harrisburg, Pa.:
In Pennsylvania, you will probably not be able to access the personnel records held by the private bus company, although records of criminal convictions are public records and should be accessible via the county court system or, if you know the names and dates of birth of the bus drivers, through a state police web-based criminal history record system.
Pennsylvania’s open records law, known as the Right to Know Law, provides public access to certain categories of records held by public agencies. Although the private bus company has contracted with the public agency to provide transportation services, the bus company itself would probably not fall under the definition of an “agency” under the Right to Know Law; therefore, its records will probably not be publicly accessible.
As a more general matter, many “personnel” related records, even when in the possession of an agency, would not meet the definition of “public record” under Pennsylvania law. Although salary and payroll records of public employees are public, most discipline-related records, or other records of which the disclosure would harm an individual’s “reputation,” are not public in Pennsylvania.
Criminal conviction records, however, are public records. You can access court records at the county courthouses, and, to a lesser extent, through the Administrative Office of Pennsylvania Courts online case management system at ujsportal.pacourts.us/WebDocketSheets/CPDocketSelect.aspx.
If you know the names and birthdates of the bus drivers in question, you can also conduct a criminal history record check online via the Pennsylvania State Police’s “Pennsylvania Access to Criminal History” (PATCH) System. To use this system, you must know the subject’s name and date of birth.
Under the Criminal History Record Information Act, criminal justice agencies are required to maintain a repository of specific information about individuals charged with crimes, including arrests, charges and dispositions. This information must be disclosed on request, for a fee, to individuals, after certain specified “outdated” information, such as arrests when there has been no disposition after 18 months, has been expunged.
According to the state police Web site, the following criminal history information will be released by the Pennsylvania State Police Central Repository upon proper request: 1) All convictions; 2) All charges that are less then three years from the date of arrest and the Central Repository has not received a disposition; and 3) All charges for which a warrant of arrest has been issued and the Central Repository has been notified of such warrant.
Q:Are e-mail and instant messages of Congress members, such as former U.S. Rep. Mark Foley of Florida, considered public records according to federal or state laws?
A: Unfortunately for reporters and the public, Congress, in passing the federal Freedom of Information Act, excluded itself from the act’s mandates. FOIA does not apply to any federally elected officials, including the president and vice president. The federal judiciary is also not subject to FOIA. FOIA only applies to documents held by executive branch agencies, including cabinet departments, military departments, independent regulatory agencies and other entities created by the executive branch.
While the official business of Congress is available through the Congressional Record, and most Hill activities are public, e-mail and instant messages are not likely to appear officially unless and until they have been entered into the public record through a congressional hearing. The other possible avenue through which congressional e-mail might emerge would be if it ends up in the file of an executive branch agency like the FBI. Even then, evidentiary documents held by the FBI are likely to be exempted from FOIA requests for the foreseeable future by one of the six sub-categories allowing for the legal withholding of law enforcement records.
Members of the U.S. Congress are not subject to state public records laws. But as some enterprising Florida journalists are finding in the Foley scandal, there may be e-mail from Congress members to state officials and agencies that are subject to state public disclosure laws. Also, check into the past offices held by a Congress member. Perhaps he or she has had a stint as a state representative or senator. Depending on the state, the legislative branch and/or the executive branch may be covered by state sunshine provisions.
Q: I’m a reporter, and one of my sources is involved in a lawsuit regarding matters on which I’ve reported. The source has received a subpoena requesting that he produce all communications with me, such as e-mail messages and letters. I have not received a subpoena, nor have I been named as a party in the case. Can my source refuse to turn over those letter and e-mail messages based on our state’s shield law?
A: Probably not. While shield laws differ from state to state (and some states don’t even have a shield law), the laws are worded to protect those who are engaged in gathering news. For example, in California, the shield law specifically applies to any “publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed.” In most cases, this won’t apply to a source. No state shield law explicitly gives a source the right to claim the protection.
Some states’ laws are written to specifically protect a source’s anonymity, and nothing else. For example, Pennsylvania’s shield law says only that a journalist is not “required to disclose the source of any information procured or obtained” in the newsgathering process. Of course, if the source has been subpoenaed, his or her identity is already known and thus the law will not apply.
For specific information on your state’s shield law, see our Privilege Compendium (www.rcfp.org/privilege).