Date with disclosure

The dogged pursuit by the news media of executive calendars produces mixed results

From the Summer 2001 issue of The News Media & The Law, page 33.

Howie Fischer wanted to know who had been meeting with Arizona Gov. Jane Hull. So he asked, requesting all of Hull’s scheduling calendars for the first six months of the year.

Fischer had looked over the public calendars Hull’s press staff put out each week. The schedules listed mundane events like ribbon cuttings, speeches and press conferences, but little else. They provided no details on the scores of private meetings with lobbyists and other officials where most policy decisions are made.

“I think Jane and others are meeting with lobbyists, and we never get to find out about it,” said Fischer, who has operated his own wire service out of the pressroom of the Arizona Legislature for more than 15 years.

“I think it’s a question of public concern who she’s meeting with. Is it the most pressing issue? No. But why can’t the public find out which lobbyists the governor is meeting with?”

Fischer was lucky. Hull, unlike like her predecessors Bruce Babbitt, Rose Mofford and Fife Symington, turned over the scheduling records without a fight.

But reporters in some other states are not as fortunate. Most states have never litigated the issue. And states that have taken it up are split on the question of whether a state freedom of information act should give journalists access to state officials’ scheduling calendars.

California, Kentucky, New Jersey, and Virginia have little or no access, while Maryland, Georgia, Massachusetts, New York, and Pennsylvania allow some disclosure. In Utah, a statute governs the issue.

“The cases end up turning very much on the peculiarities of different state statutes,” said Patrick Carome, an attorney with Wilmer, Cutler & Pickering who represented The Washington Post in Office of the Governor v. Washington Post Co., a leading case for access to scheduling calendars.

The Post sought Maryland Gov. Parris Glendening’s scheduling calendar. The Maryland Court of Appeals, in a 4-3 decision issued in September 2000, held that notations of personal appointments of the governor are not open to public view. But the court found that entries on the appointment calendar of the governor’s official business are public records.

And while experts emphasized there is no general rule controlling access to scheduling records, many states follow a similar rationale: If the calendar is purely personal and used by no one else, it may not be a public record. But if it is accessible by aides or staff and contains official duties, it could be a public record.

That theory first surfaced in two important federal Freedom of Information Act cases, Bureau of National Affairs v. Department of Justice and Washington Post v. Department of State.

In BNA, the U.S. Court of Appeals in Washington, D.C. (D.C. Cir.) held that appointment materials that are created solely for “an individual’s convenience,” contain a mix of personal and business, and may be disposed of at the individual’s discretion are not “agency records” within the meaning of the FOIA.

Two years later, a district court judge used the BNA analysis to hold that scheduling records for former Secretary of State Al Haig — compiled by agency staff members — were agency records subject to FOIA.

But what distinguishes many state cases, Carome said, is the use of executive privilege. In the Maryland case, Glendening argued executive privilege should protect many of his records, which included private personal matters and information on sensitive negotiations.

The Post intended to use the records for a story on Glendening’s fundraising activities. The newspaper was investigating whether the governor knew that a health care company that hosted a fundraiser for him was bidding on a state contract at the same time. By the time the paper received the records, the campaign was over and Glendening had been re-elected. The delay caused the newspaper to abandon the story.

But one of the reporters who worked on the story, Charles Babington, said viewing the records was critical to determining Glendening’s activities.

Ideally, reporters would have time to camp outside the governor’s office and monitor who comes and goes. Such a strategy is not practical, and the public schedules many politicians release are less than forthcoming about private meetings.

The governor’s office fought disclosure, citing security concerns and the “chilling effect” releasing the information would have on sensitive negotiations and political discussions that they said are better kept private.

Babington, a Metro reporter at the time covering the Maryland Legislature, is now the chief political writer for washingtonpost.com and doesn’t buy the argument.

“There shouldn’t be anything to hide,” Babington said. “What is the harm of being able to at least look at who is meeting with the governor?”

He pointed out reporters use the information as raw material for stories. Most reporters would not write about one meeting involving the governor, for example. But the calendar can provide important clues about the governor’s priorities. And sometimes it is the only tool to track down the governor’s whereabouts or activities.

“It’s in the public interest to have as much sunshine as possible on the workings of government,” Babington said.

The most important aspect of the case is the rejection of Glendening’s sweeping claim of executive privilege, Carome said. The governor is now clearly included in the state’s open records law.

“The decision indicates that those sources of records . . . are generally available to the public. It’s very significant that the court rejected the broad claim of executive privilege claimed by the governor. That would have cast a wide pall of secrecy over government records,” Carome said.

In California, broad secrecy exists in the aftermath of Times Mirror Co. v. Superior Court, a 1991 opinion by the California Supreme Court. The court held that the governor’s scheduling records are not public records because disclosure would divulge the decision-making process of the governor and could pose a safety risk.

The California court ruled the calendars fell within the public interest exemption in the state’s Public Records Act. The court said the “considerable public interest” in withholding the information outweighed the public interest in disclosure. The court noted disclosure would have a chilling effect, reduce candor, inhibit private meetings, and damage the flow of information to the executive office.

As an example, the court cited a meeting the governor held with a controversial group and, the court said, if the governor had feared the meeting would be public knowledge, it might never have occurred.

An appellate court in Kentucky followed the California court’s rationale in 1995 in Courier Journal v. Jones, holding that drafts of the governor’s schedule are off limits because disclosure would hamper the decision-making process.

Critics, including three dissenting justices, disagreed. They argue the deliberative process privilege should not have applied because scheduling calendars disclose only the facts of the meetings, not the contents of the communications.

“The analytical route taken by the Supreme Court is absolutely silly,” said Terry Francke, general counsel for the California First Amendment Coalition. “The court said in so many words that if the public can tell who the governor has met with, it knows his thinking. And secondly, if the public knows what the governor is thinking, it’s bad.”

Francke said it is absolutely critical for journalists to have access to calendars. In Times Mirror, the Los Angeles Times was trying to analyze who had met with the governor. The only way to do that accurately is with calendars.

“It’s a way of tracking the kind of routine influence that goes on,” he said. “It’s crucial.”

Most states, including Arizona, have no case law on scheduling calendars. Reporters are often at the mercy of public officials in trying to obtain them.

Some experts said that is unlikely to change. Dan Barr, an attorney with Brown & Bain in Phoenix, said reporters complained about calendar access during ex-Gov. Fife Symington’s wire fraud trial. But no media outlet was willing to bankroll the legal fight to free up the records, so the issue went untested.

That is not entirely bad, Barr said. Politicians are under strong public pressure to be open and accountable to the public. Many have found it easier to release information than face the threat of a public legal battle over open records.

He added that litigation could make the records meaningless. If forced to hand over the records, some public officials could stop keeping detailed calendars, resorting to a more informal arrangement to evade disclosure. Barr compared it to some public officials who have stopped using e-mail for sensitive communications after being forced to hand over the information to the press.

But access to scheduling calendars will continue to be critical issue for journalists, Barr said.

“It’s important for voters to see what the governor is doing and who has access. That’s something quite different than knowing what’s said.”