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 Spring 2008 issue of The News Media & The Law, page 35.

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: My recent attempts to attend local meetings held by high-ranking officials from the federal Environmental Protection Agency and multiple officials from a state agency in my state have been frustrated because these officials all conveniently “forget” or otherwise directly refuse to notify me of the next meeting. Isn’t this a violation of the federal Sunshine Act?

A: Most likely not, unfortunately. For starters, the Sunshine Act does not apply to all federal agencies.

The officials must represent federal agencies that is headed by a “collegial body” of two or more members (e.g., the Federal Election Commission). The Environmental Protection Agency is not such an agency.

In addition, the act requires that the meeting at issue be attended by a quorum of agency officials who are authorized to make official agency decisions. Also, if the first two requirements are met, the meetings must include deliberation over agency business.

The meetings described in the question do appear to satisfy these requirements. On the other hand, while the federal Sunshine Act may not apply, certain states have broader open meetings laws that can come into play. You should check out your state’s law on the issue as an alternative.

Q: One of our reporters was recently in court covering the verdict in a high-profile criminal trial. Before the proceeding began, the judge told all assembled to turn off any recording devices, but our reporter clandestinely taped the hearing anyway, thinking that state law would have allowed the taping. Can we post the audio on our Web site?

A: This becomes a very complicated question very quickly, largely because each jurisdiction’s laws regarding recording courtroom hearings vary significantly. Although the Supreme Court has held that the federal Constitution does not prohibit states from allowing cameras in their courtrooms, it has never ruled that the Constitution requires states to allow cameras in their courtrooms.

As such, each state has come up with its own rules about recording courtroom hearings. Some states allow widespread use of recording devices, while others give the judge flexibility in imposing reasonable restrictions on the use of recording equipment. In all cases, judges are given a wide degree of deference in determining how and to what extent coverage will be allowed.

However, whether the judge’s ban on recording devices violated your specific state’s rule is ultimately an argument for another day. You must raise a challenge to a court order before you disobey it. Otherwise, not only would you be considered in violation of the judge’s order, but you would also lose your opportunity to challenge that decision.

Even where recording is allowed, it will almost always have to be done following a judge’s order on how it will be allowed. So recording without the judge’s knowledge will almost always get you in trouble, if you’re caught. And posting the audio on the Web is a good way to get caught.

Q: I am trying to find out more information about a criminal defendant’s plea agreement that was kept secret at the time, apparently because he was going to testify against another defendant. What can I get access to?

A: Plea agreements are judicial documents subject to a presumption of public access, but that presumption can be overcome by an important or compelling government interest in secrecy.

In practice, the sealing of plea agreements and the closure of the hearings that accompany them are common, and the rules are not always followed by judges. A judge may simply order the records and hearings closed, either because they assume that a compelling interest is at stake or because they are unaware of the requirements.

A recent case out of the Ninth Circuit, which covers the western states, allowed for a great deal of secrecy in a criminal conspiracy case. In U.S. v. Higuera-Guerrero (In re Copley Press), the court held that because there was a question about the need for secrecy in the plea agreement, the portions of the hearing where the lawyers were going to discuss the compelling government interest at stake could be closed without public notice, because such notice would have defeated the very purpose of the secrecy in the plea agreement. So a presumption of access did not apply in this situation, meaning that a compelling interest didn’t need to be shown because there was no First Amendment presumptive right in the first place.

The court didn’t address the fact that after the other defendants had pleaded guilty, there was less of a need for secrecy, and the issue of unsealing should have been addressed again in that light.

In short, even where information about a secret plea agreement is eventually released, it will be difficult to find more information about why the secrecy was justified in the first place.