From the Winter 2001 issue of The News Media & The Law, page 28.
The Reporters Committee operates a toll-free hotline for journalists with questions about First Amendment and Freedom of Information issues. In this column, attorneys who answer our phones, as well as media lawyers from around the country, will answer common questions that we get from journalists.
Q: I am a journalist who has received a document that has been sealed by a court. Can I publish the document or a portion of it? Does it matter whether the document was sealed before or after I obtained it? Does it matter how I obtained it?
A: This question is not easy to answer and courts have not developed a consistent rule. Every instance raises unique issues that need to be presented to an attorney. To get a better perspective, the Reporters Committee asked four media lawyers to discuss how they advise their clients on this issue. Their responses:
Charles Babcock, Jackson Walker, LLP, Dallas: “The best fact situation for you is if you obtained the document legally before it was sealed and the information contained therein does not implicate the private embarrassing facts tort or make use of the fruits of an illegal wire tap. Under those circumstances, it would be reasonably safe to publish information from the document. There are, however, risks with everything that you do. For example, if you have direct knowledge of the sealing order and it instructs you (as a party or as a member of a non-party class) not to publish, there is substantial risk. Obviously, there are prior restraint implications to any such order but many jurisdictions require that such an order be tested by appeal and not by disobedience. There are so many variables at work here that legal counsel must be consulted to obtain the right answer.”
Adam Liptak, Senior Counsel, New York Times: “Sources provide information to the press in violation of their legal and other obligations to keep that information secret all the time. So long as the reporter did nothing more than routine reporting in obtaining the information and it is newsworthy and accurate, she is free to publish it. If the reporter did something less orthodox — stole the document or paid a source to do so — the question becomes more difficult. So long as the reporter is not a party to or otherwise subject to the sealing order, its existence and timing should not matter. In rare cases, lawyers and even courts have asserted that journalists are subject to sealing orders because they have been served with them or have otherwise become aware of them. But court orders can bind only a limited class of targeted people, and forbidding the press to report information it has lawfully obtained amounts to an unconstitutional prior restraint. Still, in light of the stakes and the pending Supreme Court decision in Bartnicki v. Vopper, which will examine related issues, journalists should consult counsel before publishing if there is any question about the lawfulness of their conduct in obtaining the information or the scope of the sealing order.”
Kelli Sager, Davis Wright Tremaine, Los Angeles: “There are many different scenarios where this might come up, and a specific fact situation should be run by counsel. Generally speaking, however, an order entered by a court to seal court records does not prevent a journalist from reporting on the contents of a document already in her possession. A sealing order simply restricts access to the court files; it is not the same thing as an order directed to the journalist that prevents publication. The existence of a sealing order probably also does not prevent the journalist from reporting on a document obtained after the sealing order was entered, so long as the journalist did not do anything illegal to get possession of the document.”
Paul Dueffert, Williams & Connolly, Washington, D.C.: “This area — the contempt power of courts — is one where trial judges are given a good deal of discretion. Unfortunately, history shows that some judges attempt to use their discretion in ways aimed at punishing the press. Caution therefore is generally a good idea. There are still some easy calls, however. If a reporter gets a document from a lawyer or a court clerk that is sealed only later, First Amendment principles support virtually any use of the document by the reporter. At the opposite extreme are cases where a reporter engages in wrongdoing — such as fraud, bribery or theft — to obtain a sealed information. The First Amendment often is of little use in such circumstances, and the reporter may face a real prospect of being held in contempt. Most real-world cases fall into the middle ground — where, for example, a reporter is accidentally given a sealed pleading by an inattentive court clerk. In such cases, determining what is lawful turns on the language of the sealing order, the process by which it was adopted, and the nature of the underlying case. The relevant questions include: Did the reporter receive definite, clear and specific notice of the order? Does the order expressly extend to reporters or other members of the general public? Did the press have a reasonable opportunity to object prior to the entry of the order? Were less drastic alternatives considered by the court? And, would publishing the sealed information endanger the fairness of an ongoing criminal proceeding? In my experience, the most common outcome is that the reporter does have the right to use the sealed information in some fashion. But to be confident of that result, a lawyer generally has to get involved and look hard at the specific circumstances.”
Q: Can I get access to the calendars or schedules of the governor of my state?
A: Access to governor’s calendars is of primary public interest. As the executive officers of state governments, governors are charged with carrying out the work of the people of the state. Who they meet and when they meet with them is important.
State law governs the question of access to these calendars, although most states have not litigated or discussed access to the schedules, either in statutory or case law. Most opinions distinguish access to personal appointment information from appointments of a government nature, closing off the personal information from public access. In states where there is no existing law, you can argue that the public should have access to the governor’s calendar because of the strong public interest in knowing the activities of the government.
Appellate courts in at least three states, Maryland, Kentucky and California, have looked at this access question and Utah has a statute that covers these records.
Citing privacy concerns, the highest court of Maryland found in Washington Post Co. v. Office of the Governor, handed down in September 2000, that notations of personal appointments of the governor are not open to public view. However, the entries on the appointment calendar of the governor’s official business were considered public records.
In 1995, a Kentucky appellate court determined in Courier Journal v. Jones that drafts of the governor’s schedule are off limits while in draft form because access to these records would inhibit the governor’s decision-making process. Although the court did not directly address the status of final versions of the governor’s appointment calendar, arguably these records are open because the same decision-making concerns do not exist for final versions.
The California Supreme Court decided in 1991 in Times Mirror Co. v. Superior Court that scheduling records of the governor are closed because disclosure would divulge the decision-making process of the governor and risk his safety.
Additionally, a Utah statute exempts “daily calendars . . . prepared by the originator for the originator’s personal use.” However, if a calendar is not exclusively for personal use, but instead is checked by the governor’s assistants, then it might be open to public view.
In states that have not dealt specifically with access to the governor’s calendars, the state’s open records law should govern access. Under most state laws, an argument can be made that these records should be open because they reflect the workings of government, which is of the highest public interest. Even in states where the law distinguishes personal records from the government records, records that were created by a government employee on government time to facilitate (or possibly avoid) the business of the government are arguably records open to public inspection.
If you are going to request the governor’s schedule, you can view your state’s open records law on the Reporters Committee Web site at https://www.rcfp.org/tapping, where you will find the online version of our guide, “Tapping Officials’ Secrets.”
Q: I am calling from a state that requires only one party to a conversation consent to a recording. When calling a state requiring that both parties consent, do I need to get the other party’s consent before recording?
A: In light of the differing state laws governing electronic recording of conversations between private parties, journalists are advised to err on the side of caution when recording or disclosing an interstate telephone call. The safest strategy is to assume that the stricter state law will apply.
For example, a reporter located in the District of Columbia (a one-party consent jurisdiction) who records a telephone conversation without the consent of a party located in Maryland (an all-parties consent jurisdiction) would not violate District of Columbia law, but could be liable under Maryland law. A court located in the District of Columbia may apply Maryland law, depending on its “conflict of laws” rules. Therefore, an aggrieved party may choose to sue in either jurisdiction, depending which law is more favorable.