From the Winter 2005 issue of The News Media & The Law, page 23.
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 and media lawyers from around the country discuss the latest hot-topic questions.
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: I am a city hall reporter and I’ve recently learned that the mayor has officially ordered all city staff to stop cooperating with me. I can still attend press conferences open to all reporters, but no officials will respond to my questions any other time. These same officials still will talk to other reporters and would be willing to talk to me if the order was not in place. What can I do?
A: To get a better perspective on this question, we asked for comments from three attorneys who handle these or similar questions for reporters.
Gilbert Johnston, Johnston Barton Proctor & Powell LLP, Birmingham, Ala.:
Before I can answer your question, I need more information.
I want to know, for example, as best you understand the situation, what led the mayor to order this “shunning.” Is it something that you wrote or did in your capacity as a journalist, and, if so, what are the particulars?
I also want to know something about the mayor’s personality. Recognizing that almost none of us likes to be criticized, especially publicly, is he or she likely to change direction in order to maintain a positive public image, or does the mayor tend to become even more entrenched when he or she is subjected to outside criticism?
What is your newspaper’s/station’s standing in the community? How much sway does it have in affecting public opinion?
Does the mayor have any trusted advisers with whom you or others at your newspaper/station are on good terms?
The answers to these questions, among undoubtedly others to which they would lead, would determine my advice. For example, if it appears that the mayor’s order (and the resulting concerted compliance by city staff) was designed to punish you for the content of something you wrote as a reporter, there may be a possibility that a court would enjoin the enforcement of that order. The law, however, is far from clear in this area.
Subject to other factors, there may be a more practical course of action to follow. If, for example, your newspaper or station has influence in your community and the mayor is particularly eager to curry public favor, an editorial campaign condemning the mayor’s “freeze-out” order might cause the order to be withdrawn.
Alternatively, if one or both of these conditions are not present, I would recommend looking for the “trusted adviser” of the mayor that I mentioned earlier with whom you, your editor, or your lawyer might negotiate. As with diplomacy generally, such negotiation could include strands of threat (veiled or explicit), encouragement, appeal to self-interest, appeasement, or even expression of regret, depending on the circumstances. The specific facts will dictate the best approach.
Dave Tomlin, Assistant General Counsel, Associated Press:
You don’t say why the mayor might have issued such an order, but presumably it has something to do with his or her honor’s reaction to your prior reporting.
That would make the order an unlawful content-based attempt by government officials to control what is reported about their performance. It would also be impermissible interference with your right under the First Amendment to do your job, with the right of your employer to determine who is assigned to cover City Hall, and the right of the public to read or hear your city government coverage.
Your best first move would be to attempt informally to find out exactly what prompted the order and try to address the problem directly. A quiet resolution would almost certainly be better for your future effectiveness on the city beat, and it would certainly be faster and cheaper than going to court.
But if that effort gets nowhere, you or your employer can retain counsel and ask a court to enjoin the major and his staff from freezing you out. Other news organizations may be willing to join or support you if they have had, or been threatened with, similar problems.
Michele L. Earl-Hubbard, Davis Wright Tremaine LLP, Seattle:
Doing all the right things may not necessarily convince the mayor to be reasonable. You can sue in either state or federal court alleging a violation of the First Amendment and any state law equivalent. Most courts recognize that the freedom of the press guaranteed by the First Amendment also includes the freedom to gather newsworthy information to publish it.
You likely do not have standing to assert the First Amendment free speech rights of the employees who want to speak to you but are being prevented from doing so.
The mayor is not entitled to control which news organizations get to cover city government, nor is the mayor entitled to control which reporters at your news organization are assigned to the city hall beat. So a reporter ought to win a lawsuit challenging the policy, although it might take an appeal to do so.
But there are several things I would try before resorting to the courts.
If there is a public record law in your state, make public record requests for any documents related to the gag order, so, if there is a written memo or e-mails among the staff and mayor, you know what exactly has been said. Most states have a document retention requirement and prevent document destruction while a request for them is pending. Ask fast before records are destroyed. Maybe the mayor will rethink the new policy when he or she realizes you will see internal communications about it.
Find out why this new policy has been enacted. Make sure your editors know about the situation. You, your editors, or your publisher should try and repair the rift. Involve other politicians and leaders to help resolve the conflict. To aid in your lobbying, line up examples of other mayors who have tried this tactic, and be able to illustrate that the tactic ultimately backfires and alienates voters.
If such efforts fail, your newspaper and other local media should inform the public about the situation in both the news and editorial pages. (Run material past your lawyers first for libel review, of course.)
Use your state’s public records laws to obtain information in writing. While not a perfect substitute for direct communication with agency officials and staff, most state laws have provisions which prevent an agency from refusing to give you information because of who you are or what you intend to do with it. It takes the agency more time to respond to your requests than it would take to just answer your questions orally. Eventually, the added work of responding to written requests could become a headache for the agency and a drain on its resources. Staff may just begin to answer your questions to save themselves hours locating and copying records.
None of these are failsafe solutions. If all else fails, the matter may be solved at the ballot box in the next election.
Q: I am doing a story on a federal judge and wish to access his annual financial disclosure form. Is there a way to do this online?
A: Financial disclosure forms filed by all federal judges are public records under the Ethics in Government Act of 1978 and may be released to anyone upon written request to the Administrative Office of the U.S. Courts in Washington, D.C. A 1998 amendment to the law allows federal judges to temporarily withhold financial disclosure statements — which include stock holdings and other financial interests — from the public “only to the extent necessary to protect” the judges.
In December 1999, the U.S. Judicial Conference’s Committee on Financial Disclosure stopped releasing the reports after APBnews.com, a now-defunct Web-based news service, announced it would post them on the Internet. When APBnews.com sued the committee, the Judicial Conference reversed the committee’s decision in March 2000 and released the forms. Today you can access the 2003 financial disclosure reports filed by all Supreme Court and U.S. Circuit Court of Appeals judges on a private Web site, www.judicialwatch.org. The reports filed by U.S. District Court judges are due to be posted in February, according to the site.
You can also request a copy of the financial disclosure form of any federal judiciary employee, at 20 cents per page, from the Administrative Office. Although the office does not post the actual disclosure reports on the Internet, you can access the official request form by going to the federal courts Web site, www.uscourts.gov, clicking on “Library,” then clicking on “Forms,” and selecting the first form listed, the AO 010A (“Request for Examination of Report Filed by Judicial Officer or Judicial Employee.”) Instructions for submitting the request form are found on this site as well. Call the Administrative Office at 202-502-1850 with any questions.
Administrative Office Spokesman Dick Carelli said once a request for a judge’s financial disclosure form is made, the office notifies the particular judge, who may wish to redact certain information. The financial disclosure committee then decides whether to make any redactions, he said. Either way, it slows down the process somewhat. The decision to release a report no longer turns on what you plan to do with it. “It doesn’t matter whether not the requester plans to put those files online or not,” Carelli said.
Q: What is a “reverse” Freedom of Information Act lawsuit to compel government withholding of records? I always thought that the government decided whether to invoke exemptions to the FOI Act.
A: As your question suggests, the government enjoys great latitude to disclose public records even when one or more FOI Act exemptions could conceivably apply; most of the exemptions are permissive and not mandatory.
Using a so-called reverse FOI Act litigation – a lawsuit to halt records’ imminent release – a third-party plaintiff seeks to correct what he views as the government’s mistaken decision that an exemption does not apply. Under a Reagan-era executive order, the government typically gives advance notice to third parties with government business about FOI requests that might implicate their business concerns.
Exemption 4 protects “confidential commercial information” from disclosure if its release would cause “substantial competitive harm” or, in the case of voluntarily submitted information, that it is “of a kind that would customarily not be released to the public by the person from whom it was obtained.” The exemption illustrates how a reverse FOI Act lawsuit can work: If a person who submitted commercial information to the government can prove to a court that the records are confidential, then he can successfully challenge the government’s intent to disclose them.
It is something of a misnomer to call these actions reverse FOI Act lawsuits; a party’s standing is actually derived from the Administrative Procedure Act – the FOI Act does not create a private right of action for third-party plaintiffs. The APA provides that “a person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action … is entitled to judicial review thereof.”