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 Summer 2007 issue of The News Media & The Law, page 38.
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: Al Gore was criticized earlier this year by a conservative think tank about leaving a sizeable “carbon footprint” of his own by way of his 221,000 kilowatt-hour, $30,000 utility bill racked up at his home in suburban Nashville, Tenn., in 2006. Are utility bills public records? How do I go about obtaining the utility bills of other notable power customers?
A: State statutes and case law vary widely on access to the customer records of publicly owned utility companies. In Arkansas, the names of a utility’s customers and their payment history records are not exempt from disclosure. But in Virginia, customer account information is specifically exempted from disclosure by state statute. In New Hampshire, residential records are exempt from release while business records are not.
In Gore’s case, the Tennessee Public Records Act as interpreted by the state Supreme Court in Tennessean v. Electric Power Bd. of Nashville allows public access to individual customer information. In the Tennessean case, the power company had a policy of notifying specific customers when a third party requested their records, but the court found the power company, not the newspaper, responsible for the costs of notification pursuant to its policy. You can find out about the accessibility of public utility bills in your state from the Reporters Committee’s Open Government Guide available at www.rcfp.org/ogg/index.php.
Once you have determined whether utility bills are subject to public disclosure, you still have to determine which power company provides service to the individual customer you are interested in. A property records search should be able to tell you the kind of energy used in the house (gas or electric) and a telephone call or visit to the Web site of the public utilities commission should help locate the appropriate service provider.
Q: I am a freelance blogger/journalist and photographer. While recently covering an event at a shopping mall in my hometown, the management ordered me to stop taking photographs and told me to leave the premises. They allowed the journalists and photographers from the mainstream media to remain, and many people were taking photos with their own digital cameras. Can they do that?
A: Unfortunately, the answer is probably yes. Even though a shopping mall is a place where the public is normally welcome, it is still private property since it is not owned by the government. Therefore, the management or anyone who has the right to speak for the property owner has the right to ask you to leave their private property, even if you were not breaking any laws or disturbing anyone. The rules change, however, if you are on public property, such as a street or a city park. On such government-owned property, you generally have a First Amendment right to gather the news or take photographs as long as you are not breaking any other laws.
The rules might also be different with regard to large regional malls that are partially publicly financed. In addition, some states have found that their constitutional provisions protecting free speech are broader than the First Amendment and give an extra degree of protection in these areas. For example, the Colorado Supreme Court found that a shopping mall was a public forum because of the town’s financial support and the range of nonshopping activities allowed on the premises.
For more information, see the private property section of the Reporters Committee’s Access to Places guide at www.rcfp.org/places.
Q: I sent in a Freedom of Information Act request seeking the FOIA log and copies of recent FOIA requests to a government agency. The agency refused to disclose the identity of the FOIA requesters under FOIA Exemption 6, the privacy exemption, and said the information was private and therefore confidential. Is this right, or can I FOIA the FOIAs?
A: You have an excellent appeal on your hands, because the answer is yes, you should be allowed access to logs and requests made under the FOIA. Exemption 6 of the FOIA allows an agency to withhold information only if releasing the information “would constitute a clearly unwarranted invasion of personal privacy.” There is nothing inherently private about a request for information to the federal government. In fact, at least one agency, the Department of Treasury, specifically notes the availability of FOIA requests to third parties in its regulations.