From the Spring 2007 issue of The News Media & The Law, page 38.
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.
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: I’m writing a story about how many nonfederal subpoenas were issued to members of the news media in my state in 2006. Is it possible to find this data? Can I find out how many of those subpoenas were successfully quashed?
A: In short: no and no. It is common only to hear about subpoenas to the news media when the media has made a substantial attempt to quash the subpoena. If a journalist is subpoenaed to testify and quietly complies, there is often no public record of the subpoena or the testimony. Even if the subpoena is successfully quashed, the proceedings might pass quietly under the radar.
However, the U.S. attorney general guidelines say that all subpoenas directed to the news media should be approved by the attorney general. The Reporters Committee for Freedom of the Press has acquired some of those federal statistics through a Freedom of Information Act request to the Justice Department; that information can be found at www.rcfp.org/shields_and_subpoenas.html.
Q: What rights do members of the media have to interview prisoners?
A: Members of the media have the same right of access to prisoners as do other members of the public — no less, but also no more.
The U.S. Supreme Court has ruled that journalists do not have rights greater than the general public, but cannot be denied access that is granted to the public. For example, if prisoners are allowed to add whomever they choose to their visitors’ lists, prisons cannot stop them from including members of the news media on those lists. However, the Supreme Court has repeatedly ruled that the press does not have the right to insist on interviewing specific inmates.
Access differs according to state and prison system. Most states have statutes or prison rules allowing for some type of access. Usually the warden or other prison official has the authority to deny interview requests under specific circumstances.
One tactic to try is to contact the inmate through the inmate’s lawyer and ask to be put on the list of people with whom the prisoner is allowed communication. Some state laws also acknowledge that prisoners have a right to talk to the news media, so it may be easier to have the prisoner assert this right.
Journalists who regularly cover prisons should obtain a copy of the state’s department of corrections regulations. If denied a request to interview, ask the official who denied the request for reasons for the denial. Journalists may be able to appeal denials, but courts tend to defer to prison authorities’ decisions to restrict access in the name of institutional security.
Q: I tried to get an incident report from the police department, and the records person told me I would have to wait to get it from the official court file. Do I indeed have to wait until charges are formally filed to learn about this incident?
A: Generally, no. Most states allow the public to access information about arrests directly from the police department. The amount of information available from the police varies. Some will make full incident or arrest reports open. Others will also provide “blotters” or make other dispatch logs available.
That said, a court file is a good place to get police records, especially incident reports. Records of criminal cases are almost always available to the public in their entirety. You are also allowed full access to the courtroom during criminal proceedings. But you should not have to wait for court proceedings to begin before you can learn about an arrest.
For information on what your state’s public records laws say about accessing police records, view the Reporters Committee’s Open Government Guide.