Lecture 9: Access to Information and Freedom of Information Act

Lecture 9:Access to Information andFreedom of Information Act COM 451 Communication and Law

I. The Access Battle on Many Fronts • Constitutional Rights • News Sources • Places and Events • Records and Documents • Meetings • Electronic gadgets and privacy • Discriminatory access

I. Some General Principles The Supreme Court has set three general principles related to gathering of information. • 1) The First Amendment does not guarantee the public or the press a right to obtain information • As such the right to gather information is much weaker than the right to publish. • 2) Journalists have no greater rights of access to information than the public at large. • 3) The need for access shall be balanced against other needs, such as privacy, national security, prison safety, public order, etc.

I. U.S. v. Nixon (1974) • President Nixon sought to withhold Watergate-related audiotapes from a trial court. • He claimed they were protected by “executive privilege” • Supreme Court says a total privilege exists only for records containing military or diplomatic secrets. • Court declares limited privilege applies in theory and the balance test in this case not in Nixon’s favor.

I. Zemel v. Rusk (1965) • US Dept. of State denied journalist visa to visit Cuba in 1963. • Journalist claimed it was a violation of his First Amendment “news-gathering right”. • Supreme Court ruled that no such “news-gathering right” exists and thus the government is authorized to control travel of citizens—even of journalists.

I. The “Prison Trio” • Three Supreme Court rulings in the 1970s dealt with prison rules and media access. • Upheld constitutionality of prison rules restricting reporters’ interviews with prisoners. • Prisons had argued that face-to-face interviews led to a breakdown in discipline. • Upheld constitutionality of restriction of video-taping inside jail in California. • Media challenged the prison rules, but lost in every case. • Ruled that reporters could learn of prison conditions by interviewing visitors, public officials, prison personal, and lawyers.

I. Supreme Court ruling in 1972 Two views, three pages apart, in a Supreme Court ruling that are a bit contradictory… “Without some protection for seeking out the news, freedom of the press would be eviscerated.” (eviscerate = disembowel, i.e. destroy, kill) “The First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.”

II. Access to News Sources While the Supreme Court has not recognized a First Amendment right of access to news venues, a few lower courts have noted a First Amendment newsgathering right in public places (though this is not enough to say that journalists have a blanket right to access news scenes). For example, it has been found that the First Amendment bars the gov’t from arbitrarily or capriciously excluding journalists from news sources. • Ludtke v. Kuhn (1978) • A court ruled that a female reporter (for Sports Illustrated) could not be denied access to a locker room in a city-owned baseball stadium (N.Y. Yankees) where male reporters were allowed.

II. Borreca v. Fasi (1974) Courts have ruled that the First Amendment prohibits officials from punishing reporters by denying them access to press conferences or sessions of state legislatures. • The Federal District court in Hawaii ruled that Mayor Frank Fasi could not deny access to his press conferences to Richard Borreca, a reporter for the Honolulu Star-Bulletin. Mayor Fasi did not like Borreca because he was critical of the mayor in articles he wrote. Fasi said that Borreca’s stories were “irresponsible, inaccurate, biased, and malicious.” • The court said that officials could criticize reporters, but they could not intimidate or discipline reporters (i.e. prevent them from attending meetings) without a compelling reason.

III. Historical Overview • Sweden was the first nation on earth to have a freedom of information law (1766) • Most countries adopted similar laws well into the 20th century • In the U.S., a law now called the “Housekeeping Statute” was passed in 1791, but it had very little teeth. • Law made agency heads responsible for records’ care and custody • Agencies could make rules • Agencies were not required to justify or explain non-disclosure • All “burdens” on requester of records • Instead, English Common Law prevailed, granting no right of inspection

III. Historical Overview (con’t) Marbury v. Madison (1803) • In this ruling, the Supreme Court said it could not require the president to divulge information. • Eventually, this attitude trickled to down to lesser officials.

III. Historical Overview (con’t) Administrative Procedures Act (1946) • The APA was another bad law…, but at least it was an update from 1803. • Section 3 dealt with secrecy. • Government information shall be disclosed only to those “properly and directly concerned” with an inquiry • Records could be withheld “in the public interest”; “for good cause” or for reasons of “internal management”

III. Historical Overview (con’t) • Changes in 1950s & 1960s lead to FOIA • A 1958 law recognized the “right to know” in principle, adding the following sentence to still-existent “Housekeeping” law: • “This section does not authorize the withholding of information from the public or limiting the availability of records to the public” • But that had little effect, as agencies had the APA on their side. • APA was unpopular and an intense decade of lobbying finally led to the FOIA in 1966.

IV. Access to Places and Events • No first amendment right to collect information exists, except for public’s right to attend trials. • Rights have been legislated under the Freedom of Information (FOI) and Sunshine laws. • Usually any person has access to public streets, sidewalks, parks and public buildings and has the right to observe, photograph and record what can easily be seen or overheard in public. • Right to access quasi-public property (i.e. military bases) is less secure than public places.

IV. State v. Lashinsky (1979) • Newspaper photographer Harry Lashinsky was arrested (and later convicted)for refusing to get out of the way at the scene of an accident where he had stopped to take pictures. • A girl was trapped in a car next to her dead mother. • New Jersey Supreme Court upheld the conviction for disorderly conduct. • Other courts have upheld police orders to press to leave scenes of auto and plane crashes. • Police, not media, control scenes of accidents City of Oak Creek v. King (1989) • “The needs and rights of the injured and dying take precedence over whatever rights a news gatherer might have in trying to meet a deadline.”

IV. Access to Places and Events (con’t) Access to War Zones • From Civil War, to WW I, WW II, and Vietnam reporters accompanied soldiers into combat areas. • Starting with the Invasion of Grenada (1983), reporters were organized into “pools” and escorted to battle area. • Reporters very critical of DOD policy curing Persian Gulf War (1991). • Only pools of 7 reporters at a time were allowed into combat zone. • All reporters’ articles subject to “security review” • Military reviewers suggested changes in articles. Review process took time so frequently news stories were delayed reducing their timely value. Military wanted to manipulate public opinion by sanitizing view of the war.

V. Access to Records and Documents • All states and federal gov’t have adopted statues mandating public access to many gov’t records and meetings. • Most laws define… • what a public record is in that state • which gov’t agencies are covered • criteria for individual access • procedures for obtaining public records • charges for records • which records are exempt from disclosure • penalties for officials who improperly withhold public records.

V. Freedom of Information Act (FOIA) • Passed in 1966, requires federal executive agencies and independent regulatory bodies to make documents available to the public, if they are not exempted by law • Documents include: opinions in settled cases, policy reports and statements, manuals, minutes of meetings, and other information considered part of the public record. All records held by executive branch agencies are subject to disclosure • But, what is an agency? What is a record? • Nine exceptions to the rule of disclosure. (See text) • Only applies to Federal gov’t, but all 50 states have similar acts.

V. Freedom of Information Act (FOIA) (con’t) • Gov’t may not consider purpose of use when making decision to withhold documents. • In case of denial, burden of proof throughout appeal process rests with government • One early problem was cost of records and delays in processing requests. • Law is often useless to journalists, if they have a deadline • A quick phone call to a source still beats an FOIA request for the journalist, in most cases • Applies only to gov’t agency records, not publicly funded bodies. • Level of cooperation varies according to the agency • Congress, courts, the Office of the President not covered • Today, many fees for journalists, researchers and non-commercial users are waived, but that has not sped things up. • Law enforcement officers and businesses complain act allows too much disclosure • Agencies complain act is undue burden on government

V. Electronic Freedom of Information Act(EFOIA) • Passed in 1996 • Requesters can receive electronic copies of databases and database queries, but many agencies still behind the times in terms of digitizing documents. • Agency is supposed to make new records available on-line (if capable) or on CD-ROM, diskette, etc. • Agency can decide which format to offer.

V. Related Acts & Amendments • Privacy Act (1974) • Individuals have the right to obtain and amend gov’t files containing personal info. about them. • Agencies are prohibited from disclosing personal info. without the written consent of the person involved. • Federal Educational Rights and Privacy Act (Buckley Amendment) • Permits parents to see their children’s education records • Prohibits federally funded institutions from releasing educational records to the public without parent’s consent. • Driver’s Privacy Protection Act (1994) • Prohibits state agencies from releasing driver’s name, address, SSN, phone number, or medical info without the driver’s consent. • Does not restrict release of info about accidents, driving violations, or a driver’s legal driving status.

VI. Access to Meetings • Sunshine Act (1976) requires gov’t agencies (commissions, boards, councils, legislative committees) to meet in public for most sessions. • All 50 states have similar law. • Declares that the public “is entitled to the fullest practicable information” about the “decision-making process” of the Federal government. • 10 exempt categories: national security, agency rules, matters of personal privacy, investigatory records, reports of financial institutions, etc. • Any decision to close a meeting must be done in advance by a vote of members.

VII. Discriminatory Access • Government has right to discriminate, but discrimination must be reasonable and not retaliatory nor based on intimidation • Nothing stops officials from having favorite reporters and “feeding” them stories • Often a journalist can get access faster having an inside connection than through the FOIA or an open meeting. • Technically, may not discriminate based on size and prestige of medium, but that occurs all the time! • Gender discrimination on public property violates federal law

VIII. Major Questions to Consider • 1) When should the public be barred from government meetings? • 2) When should the public be denied government records? • 3) Should once-secret information eventually become public? • 4) Who should determine secrecy guidelines? • 5) What are the dangers of too much secrecy, too much openness?

VIII. And, these days… • 1) How much access should the media have to combat activity in Afghanistan? • 2) What policies would you establish if you were in charge? • 3) Is it unpatriotic to ask tough questions of military, defense officials?

Lecture 9: Access to Information and Freedom of Information Act