From the Winter 2006 issue of The News Media & The Law, page 25.
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: What information are reporters who are covering a major natural disaster in their communities legally entitled to, and what information, if any, can legally be shielded from them?
A: For more perspective on this issue, we turned to two attorneys and one FOIA expert.
James B. “Jim” Lake, Thomas & LoCicero, Tampa, Fla.:
Most government information concerning natural disasters is available through federal and state open-records laws. The barriers reporters face most frequently — for example, laws that conceal crime investigations and grand jury proceedings — do not apply in natural disasters. So a reporter might start with the assumption that disaster records must be made available — particularly records of first responders at the state and local level.
Of course, that assumption will not be true for every record a reporter might seek. Detailed information about the medical condition of a particular disaster victim is likely to be confidential unless the victim consents to its release. Likewise, some aspects of disaster-response plans may be confidential under laws enacted since the Sept. 11 attacks.
Obtaining federal records may be more difficult than seeking records from first responders. Following the 2004 hurricanes, the Federal Emergency Management Agency responded slowly to Freedom of Information Act requests. When forced to respond, FEMA asserted several secrecy arguments, including that releasing some information about relief programs would invade disaster victims’ privacy, and that disclosing some opinions of federal officials would inhibit their candor. Fortunately, most factual and statistical information has been released.
FEMA’s victim-privacy claim will be considered by a federal appeals court later this year. (See story, page 24) In the meantime, reporters can expect FEMA to resist requests for some details of how FEMA responds to disasters, particularly information about victims.
Federal officials are perhaps less likely to restrict media access to damaged areas after a federal judge in September ordered FEMA not to block CNN’s efforts to monitor the recovery of victims’ remains following Hurricane Katrina. In response, Katrina recovery officials dropped the restrictions and announced that they had “no plans to bar, impede, or prevent news media from their newsgathering and reporting activities.” So, although some records may be closed, reporters can expect access to most documents and damaged areas.
Meredith Fuchs, general counsel, National Security Archive, George Washington University:
Because news media are protected by the First Amendment and play a critical role in informing the public during and after a major natural disaster, some reporters have assumed that they have free rein to cover the story. They have been frustrated to find their inquiries and efforts rebuffed. In the past year, amid the devastation of Hurricane Katrina and the almost inconceivable aftermath of the disaster, we have seen many examples of the limits imposed on journalists.
The basic principle of access under the First Amendment is that journalists are entitled to no more access than members of the public. Branzburg v. Hayes, 408 U.S. 665 (1972) (“The First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.”). The disaster managers come at the issue with a fear of losing control over security and safety at the site. Reporters can often push back with a little pressure to change the official secrecy reflex. When the federal government said it would ban reporters from covering the search for bodies of Hurricane Katrina victims, CNN filed suit. The government backed down, deciding instead that it simply would not embed reporters with search and recovery teams. Another way to ease the government’s initial reflex to ban coverage might be to negotiate the terms of coverage, for instance agreeing not to publish names of victims until their families have been notified.
Often, journalists have potent arguments to make against limited access. Many responders have first heard about disasters from press reports. Certainly the public is dependent on the news reports to know how to protect itself and react. Members of the press can offer to help in return for access, by disseminating important information to the public or sharing information the responders need to save lives, so long as it is within the ethical limits set by their news organization.
Given the overwhelming public interest in information about natural disasters being disseminated to the public, many responders may be willing to let the press have access to sites. But it is always important for reporters to have up-to-date press credentials, which can help protect them when trying to get a firsthand look at what happened. Several reporters who did not have press credentials found themselves arrested after trying to report on the Sept. 11 attacks at ground zero in New York City.
Charles N. Davis, executive director, National Freedom of Information Coalition, University of Missouri School of Journalism:
Disasters pose multiple records issues for reporters. Natural disasters, of course, give rise to inquiries about knowledge of pre-existing conditions, whether officials were aware of the risk of calamity, whether adequate funding was in place to head off damage from natural disasters, and whether any planning documents were in place spelling out the response of emergency management officials.
Take hurricanes, to pick a hot topic. A quick peek at available records reveals the Storm Events Database from the National Climactic Data Center. This is the official U.S. government database of storm events around the country, including hurricanes and floods. Fields in the database include: date and time the storm event began; event type; states and counties hit; latitude and longitude; property and crop damage values; and injuries and fatalities. Covering 1950-2004, the database can be a useful newsroom tool for adding punch to your weather stories. For instance, you will have a resource to determine how the storm ranks against previous ones in your area and beyond. The database can also yield enterprise stories, such as determining the most costly weather events to have hit your area. With the latitudes and longitudes, mapping some of the data is also possible. The database is available from the National Institute for Computer-Assisted Reporting (NICAR) at the Missouri School of Journalism.
What about the cleanup effort? Check out a database of Individual Contract Action Reports created by the Government Services Agency. Search for federal contracts awarded to a particular business: a great place to start when looking at contracts awarded to companies in your area, or work being performed there. This could be relevant as FEMA and other agencies contract with local businesses in cleanup and repair.
Man-made disasters, or disasters caused by workplace scenarios or products, implicate other records. A prime source of information comes from the OSHA workplace safety database, available from the Investigative Reporters and Editors and NICAR Database Library. The database contains a variety of workplace inspection and accident information, including hazardous substance accidents as well as violations for federally inspected companies in the United States and its territories.
And what about disasters in the making? A five-part Newsday investigation in 2001 found that New York has the nation’s highest rate of immigrants killed in the workplace. The series also uncovered that government agencies frequently fail to investigate deaths, provide enforcement for violations and offer timely compensation for victims and their families.
A quick review of federal and state agencies, and a look at Investigative Reporters and Editors’ vast holdings yields dozens of great records.