From the Hotline

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 discuss the latest hot-topic questions.

From the Fall 2007 issue of The News Media & The Law, page 28.

Note: 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: After a very public arrest, the criminal complaint against the defendant was immediately sealed by the judge. Can a judge do that? Aren’t the charges against the defendant required to be made public?

A: It is a well-established principle that court records are presumed to be open to the public. In 1980, the U.S. Supreme Court in Richmond Newspapers, Inc. v. Virginia established a First Amendment right of public access to criminal proceedings. Many lower courts have extended this reasoning to hold that there is a First Amendment-based right of access to judicial records in criminal proceedings.

In Globe Newspaper Co. v. Pokaski (1st Cir. 1989), a federal appeals court in Boston found that First Amendment access to criminal proceedings extends to criminal judicial records, specifying that access to judicial records is constitutionally required unless the trial court makes specific, on-the-record findings that sealing is necessary to achieve the government’s compelling interest.

Other courts have also required that the sealing order be narrowly tailored so as not to unnecessarily preclude access to records.

The judge sealing the complaint in this instance should have made these requisite findings prior to granting the prosecutor’s sealing order, but surprisingly, judges often don’t follow the right steps or enter a written order explaining their decision to seal, which might explain the hasty sealing of the complaint in this case.

Q: I filed a Freedom of Information Act request with the FBI three months ago, and was essentially ignored until well after the 20-day deadline federal agencies are permitted to reply to such requests. When it did respond, the FBI rejected my request, citing Exemption 7(A). 

My administrative appeal was also rejected. Because the FBI initially missed its 20-day deadline, will I have a better chance of prevailing if I appeal to federal district court?

A:  First off, if an agency determines that it cannot respond to a request within 20-days, the FOIA allows the agency, in “exceptional circumstances” when the agency has exercised “due diligence,” to ask the document requester for more time to complete the request.

But even if the agency has not asked for more time, courts have typically been very lenient and forgiving when it comes to agency deadline violations, excusing months of tardiness even after a lawsuit is initiated, provided the agency ultimately responds before the lawsuit is decided on its merits.

Q: I am a blogger who regularly updates my site between three to 10 times every week. Am I going to be protected by the proposed federal shield law?

A: If the current language in the Senate version of the bill prevails, you will likely be covered. Assuming that your blog can satisfy the seemingly low hurdle concerning a matter of public interest, then the shield will likely protect you from federal subpoenas. 

It bears noting though, that this is one of the sections of the bill that the Senate Judiciary Committee agreed to work on before sending the legislation before the full Senate.

Things could get a bit stickier if the House version of the bill ultimately prevails. 

The House version will only protect your blog if it provides a “substantial portion” or your livelihood or you receive “substantial financial gain” from it. 

Interestingly, it doesn’t matter how often you update your site, or how many people rely on it for information. Instead, the only thing that matters is whether it’s a money maker, so not all blogs will fall within its purview. There isn’t any indication yet as to what would be a “substantial” amount, and that might be something that the judicial process will have to flesh out as the first few journalists test the law.