From the Summer 2002 issue of The News Media & The Law, page 15.
Eleven armed investigators from the Los Angeles County District Attorney’s Office shut down the newsroom and business offices of the Metropolitan News Co. for more than three hours May 2 when they entered with a search warrant and ordered everybody out.
The closure stopped work on the company’s newspapers, the Metropolitan News-Enterprise and the Los Angeles Bulletin. It delayed publication of the Bulletin, an afternoon newspaper, for three hours, said co-publisher Roger Grace. The News-Enterprise, which is delivered mostly by mail, was delayed an hour.
Investigators wanted to know who placed an ad on Feb. 21 in the News-Enterprise regarding the circulation of a petition for a recall election in the city of South Gate, said Jane Robison, press secretary for Los Angeles County District Attorney Steve Cooley.
The search warrant sought billing records that would show that a local law firm placed the ad. The search warrant was part of an ongoing investigation into political corruption in South Gate, Robison said.
Robison said the search warrant was limited to business records and had nothing to do with reporters’ notes or other newsgathering documents.
But Grace said an official from the district attorney’s office threatened to search the entire office, including reporters’ desks. The search warrant states that the search would include “all rooms, safes, locked boxes, files, desks” and “any containers including all purses and wallets found in the care/custody and/or control of advertisement, accounts receivable, editing and/or any office” that could provide information about the ad.
Investigators did not search the offices, Grace and Robison said. Instead, Grace’s wife and co-publisher, Jo-Ann Grace, turned over the documents when investigators correctly named the law firm that had placed the ad.
“Our reason for resistance was that we wanted to protect the privacy interest of the customer,” Roger Grace said. “If they already knew the name of the customer, there was no privacy interest to protect.”
Jo-Ann Grace had told investigators several weeks earlier that she and her husband would not reveal the identity of the customer unless the district attorney’s office obtained a subpoena or showed that it already knew the name of the law firm that placed the ad.
“To go to the extreme measure of getting a search warrant with the contemplation of searching the newsroom was rash and irresponsible and extreme and outrageous,” Roger Grace said.
Robison said investigators could not issue a subpoena. California law allows subpoenas only when a case has been filed, she said. While charges have been filed against one South Gate official, the ongoing investigation involves other people against whom no charges had been filed when the search warrant was served, she said.
Newsroom searches are rare, mainly because the federal Privacy Protection Act prohibits them in most circumstances. The law, enacted in 1980, prohibits both federal and state officers from searching or seizing journalists’ “work product” or “documentary materials” in their possession. Limited exceptions allow the government to search for certain types of national security information, child pornography, evidence that the journalist has committed a crime, or materials that must be immediately seized to prevent death or serious injury. (42 U.S.C. 2000aa)
California law also restricts newsroom searches. State law forbids search warrants for items described in the state’s shield law, which protects reporters from forced disclosure of unpublished information. The law defines “unpublished information” as information that includes, but is not limited to, notes, outtakes, photographs, tapes or other data. (Cal. Penal Code § 1524(g); Cal. Evid. Code § 1070)
Robison said “unpublished information” does not include a bill for an ad. She said the search warrant was legal.
“If this violated state law, we wouldn’t have gotten a search warrant, and the judge would not have signed it,” she said. “We’re not in the business of violating state law. We’re in the business of upholding it.”
The federal Privacy Protection Act gives the Graces the right to sue for damages.
Roger Grace, who also is the newspapers’ attorney, filed a complaint with County Counsel Lloyd Pellman arguing that the search warrant was invalid and violated state and federal law. The claim asks for more than $10,000 in damages for the investigators’ trespass and interference with business. The claim also says Cooley libeled Roger Grace in a press release and in a letter to the Los Angeles Times about the search warrant.
Pellman has not responded to the claim, Roger Grace said.
California law required Grace to file the claim before he could sue an elected county official.
Grace plans to sue Cooley and Cooley’s investigators, either in state or federal court, for trespass, libel, business interference and violation of his civil rights. Grace offered not to sue if Cooley apologized, acknowledged that he made false statements, paid $3,000 to reimburse the company for lost work time and ordered First Amendment training for himself and his investigators.
Cooley has no response to Grace’s offer, Robison said. — MD