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From the Hotline

The Reporters Committee operates a toll-free hotline for journalists with questions about free press and freedom of information issues. In…

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 2009 issue of The News Media & The Law, page 19.

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: A public official recently pleaded guilty to wire fraud and conspiracy to commit extortion. I am a journalist and was recently notified by the FBI that interviews I conducted with the senator over the telephone were intercepted by as part of the bureau’s criminal investigation. I do not know which phone calls were intercepted. Do I have any recourse to get copies of the tapes or to ask the FBI to destroy the tapes?

A: The FBI derives the authority to intercept communications for criminal investigations from the federal wiretapping statute, 18 U.S.C. 2510. Here, since the FBI was conducting an official investigation, the statute authorized the wiretaps on his phone.

In these cases, communications between journalists and the official were likely among many conversations that were intercepted by the FBI. Though a journalist may have felt violated by having his or her phone conversation intercepted, there is unfortunately no recourse in a situation like this. The FBI’s conduct was lawful.

Additionally, the FBI complied with the statutory guidelines that require the agency to notify third parties whose communications may have been caught in the interception, after the criminal investigation is complete. The statute does allow the judge who granted the wiretapping order the discretion to reveal copies of the tapes to a third party whose communications were intercepted. It does not, however, give the judge the authority to destroy the tapes. Rather, the law actually requires that the tapes be saved.

Q: I submitted a Freedom of Information Act request before Attorney General Eric Holder issued his memo restoring a presumption of disclosure in response to FOIA requests. Should I submit a new request?

A: No. If your request is still pending with a federal agency, you don’t need to submit a new one. Agencies are generally applying the new guidelines as they process requests. Agencies will also apply the new guidelines to pending administrative appeals. If you have an ongoing FOIA lawsuit, you could consider asking the court to order the Justice Department to review the records again in light of the change in policy. Of course, if you have an open records request pending with a state agency, and not the federal government, the new guidelines will not affect your request.

Q: I recently asked the court clerk for a copy of the DVD that was shown in open court during a trial I am covering, but she refused. She will let me view the DVD, but will not make me a copy. Do I have a right to a copy of the video?

A: Courts generally recognize a constitutional and common-law right of access to court proceedings and records. But this right does not necessarily require courts to provide copies of videos, at least where the press and the public were allowed to view the video in open court. For example, in U.S. v. McDougal — a 1996 case involving access to then-President Clinton’s videotaped testimony in the criminal trial over the Whitewater land fraud — the U.S. Court of Appeals in St. Louis (8th Cir.) held that “the First Amendment right of access to public information does not extend to the videotape of President Clinton’s deposition testimony” because “members of the public, including the press, were given access to the information contained in the videotape. Therefore, appellants received all the information to which they were entitled under the First Amendment.”

This doesn’t mean the court can’t allow you to copy the tape, or that you shouldn’t ask for a copy to be made. And if the trial is in state court, state law may create an access right that is broader than the First Amendment right.