From the hotline

From the Winter 2003 issue of The News Media & The Law, page 31.

The Reporters Committee operates a toll-free hotline (800-336-4243) for journalists with questions about free press and freedom of information issues. In this column, attorneys who answer our phones, as well as media lawyers from around the country, discuss questions we often get from journalists.

What follows is not meant to be relied upon as legal advice specific to any reader’s situation, but is rather here for informational purposes, to help journalists understand how the law affects their work. You should consult a lawyer for help with any specific situation, or call the Reporters Committee’s legal assistance hotline at 1-800-336-4243 for more information or for help in finding a lawyer.

Q: In trying to acquire data and documents from government agencies, I am sometimes asked to fill out a form explaining why I want the information and what I plan to do with it. Should I fill out the form? What if that’s the only way to get the information? Are there ways I should phrase my intended use so that I don’t harm my future use of the information?

A: We asked three attorneys who handle these issues for clients how they would address this question.

David B. Smallman, Steinhart & Falconer LLP, New York, N.Y. The extent to which reporters should explain the basis for document or data requests and their intended use of the materials depends upon the applicable law and the factual circumstances. Practical considerations may affect technical rights under access laws. And reporters may be asked to consent to limitations of their rights, for example through terms of use agreements on government Web sites.

The devil is in the details.

As a general matter, the federal freedom of information law and many similar state laws do not require disclosure of the purpose for the request. However, access laws typically create practical incentives for reporters to disclose their status, which can result in expedited consideration of their requests and result in fees that are reduced or waived. Representatives of the news media and others can seek a fee waiver under the federal FOI law. Doing so, however, may require disclosures about why the information is of public interest, the name of the news organization, information about expected publication, and whether the release of information will “contribute significantly to public understanding of government operations and activities.” Similarly, expedited review requests may require detailed disclosures about the public’s “urgent need” for information in a specific context.

While access usually is available to “any person” who “reasonably describes” the information sought, some states, such as Pennsylvania, restrict the right to inspect and copy records to citizens of the state. For sensitive undercover or investigative stories, keep in mind that your requests may create a paper or electronic trail.

Another important consideration arises if access to information is conditioned upon a voluntary agreement by the reporter that effectively waives certain First Amendment or other rights. Reporters’ agreements have been held by courts to be subject to promissory estoppel law, which essentially imposes an obligation on those making promises to keep them. While this issue often arises in connection with agreements between reporters and confidential sources, it also can apply to situations in which reporters agree to “security review” when covering military, police or intelligence-related stories.

Because consent to certain conditions before gaining access to government data may impose restrictions inconsistent with constitutional, statutory or common law rights, carefully review terms of use agreements on Web sites before agreeing or clicking through. Consider whether the conditions imposed may later come back to haunt you and ask yourself if there is some other way to get the data. Consult media counsel for specific language if the option of modifying the terms of use is presented. Subsequent challenges to improper terms of use agreements, while possible, can be expensive and the results uncertain.

Recent passage of the E-Government Act of 2002 suggests that a proliferation of online regulations (and end-user agreements) affecting security, privacy and confidentiality may be on the way, so increased vigilance by journalists is warranted.

Tom Clyde, Dow, Lohnes & Albertson, Atlanta, Ga. At both the state and federal level, it is becoming common for government agencies to ask that public records requests be submitted in writing, often on a preprinted form that requests an explanation of what you plan to do with the information. The general rule under both federal and state freedom of information laws is that your purpose for requesting information is irrelevant to an agency’s duty to provide it.

So, is this just improper snooping? Frequently it is, and the agency’s request for an explanation can be ignored. But there are exceptions to this rule. Sometimes an agency is legally entitled to enough information to determine whether you fall into a certain category of record requesters, such as commercial requesters, who may be entitled to less information or who may be required to pay a higher fee.

In the area of health care information, federal privacy regulations now impose a duty on agencies to identify requesters and their purpose in order to determine if identifiable patient information may be disclosed.

In making a record request, the first question to consider is whether you submit a written record at all. As a practical matter, it often is to your advantage to do so. At federal agencies, until a record request is submitted in writing, the Freedom of Information Act does not apply. So a federal agency may provide records in response to an informal verbal request, but it is not legally required to do so.

At the state level, state freedom of information laws vary on the issue of whether a records request must be in writing to trigger the state’s disclosure requirements. For example, Maryland, Michigan and New York require written requests; Colorado, Florida and Georgia permit verbal requests.

Even if not legally required, however, having a written record of the request is frequently critical in the event the agency resists or delays disclosure, and you have to try to compel compliance through an administrative review or court action. But keep in mind that government officials may more easily review written records requests in attempting to anticipate and blunt future investigative stories.

In competitive markets, where more than one news organization is chasing the same story, reporters sometimes review an agency’s records request log to see what their competition is up to.

Given these concerns, it is generally advisable to keep any explanation of your intended purpose for requesting information to a minimum. As mentioned above, under the Freedom of Information Act and most state freedom of information laws, the purpose for which information is sought generally is irrelevant, so providing even a general explanation is not legally required.

There are some exceptions to this rule, however. Many state records laws prevent or limit access to certain information, particularly personally identifiable information, if it is sought for a commercial purpose.

The federal Freedom of Information Act imposes more substantial charges on the commercial requesters than the news media. Seeking information for news reporting is not considered a commercial purpose, so making a brief statement that you are a reporter and seek the information for news reporting purposes will distinguish you from commercial requesters.

Similarly, the Freedom of Information Act and many state access laws allow an agency to waive fees if the request is submitted by the news media and is in the public interest. If your request is voluminous and a waiver of fees is needed, it may be worthwhile to explain how the requested information will assist reporting on a subject important to the agency.

Finally, particularly in the area of health care information, the government does have a reason for asking who you are and generally what you plan to do with information. Under federal privacy regulations scheduled to go into effect in April 2003, agencies are under an affirmative duty to monitor their disclosure of any information containing individually identifiable patient information. Under the regulations, agencies can release individually identifiable information to certain relatives and organizations such as hospitals and law enforcement agencies, but must otherwise “de-identify” the data prior to release. Accordingly, if your request includes patient identifying information, a brief disclosure that you are seeking information for news reporting on health care matters should assist the agency in determining the appropriate level of disclosure and undertaking the “de-identification” process.

James Chadwick, Gray Carey, Palo Alto, Calif. Whether you should complete a form that requires you to say why you want information depends on the open records law you are using. For the federal government, the Freedom of Information Act generally applies. Each state has its own laws, which typically apply to both state and local governments, and some cities and counties have their own special laws. Individual government agencies often have their own specialized regulations.

Under the federal FOIA, the purpose for which a request is made is generally irrelevant to whether you are entitled to the information you are requesting. However, you may need to confirm that you are a journalist in order to avoid having to pay for the costs of document search and review.

In addition, under the FOIA you may need to provide information about the federal government activity you are investigating and why you have an urgent need to report on it to the public if you want to get expedited processing of your request. Be careful. Such requests frequently are denied, even when they have merit.

Many state open records laws are the same. For example, California’s Public Records Act expressly states that limitations on access are not allowed based on the purpose for which a record is being requested.

That being said, in at least two situations you may need to provide at least some description of your purpose for seeking the records.

First, some statutes expressly limit the release of information to those who are going to use it for certain purposes, typically “scholarly or journalistic” purposes. If the information you are requesting is governed by such a statute, you may have to explain that you are a journalist and that you are seeking the information for purposes of news reporting.

In regards to information that is for release to “researchers,” I think a reporter can make such a claim, if it is done in a way that is not misleading. The reporter should make it clear that they are a journalist and not a scientist, but can legitimately say that the media frequently engages in sophisticated analysis of data for the purposes of reporting to the public, and is seeking the information for that purpose.

Second, the information you are requesting may be exempt from disclosure. Agencies sometimes provide access to exempt information even though they are not expressly required to do so. In this situation, the agency can pretty much define the terms upon which it releases information, and you may have to complete a form or answer questions about your purpose.

Finally, the basic rule for what you say about your purpose is: the less the better. Say only as much as you need to in order to get access. Start with a generic description, such as: “For purposes of news reporting.” This may be sufficient in some circumstances, particularly if the statute permits disclosure for journalistic purposes. If the agency tells you that you have to provide more information, and the records are important, you can elaborate.

Keep three things in mind if you complete a form to get records.

First, you probably are signing an agreement. Could you have problems if you violate it? Make sure you read what the form says about the information you are providing. For example, does it require you to sign under penalty of perjury? What limitations, if any, does it impose on what you can do with the records you get? Are there consequences for violating the agreement, such as criminal prosecution?

Second, be careful about signing a form that imposes limitations on your access to or use of information that are not justified by the law. Agencies may try to get you to sign such forms, even though you are entitled to the records without having to do so.

Third, you may later want to invoke the reporter’s privilege if someone tries to make you testify about your sources or unpublished information you obtained during your investigation. You may not be protected with respect to information you have provided to the government, if it comes out.