cl4

1. ANNOUNCEMENTS • No additional reading for Monday. • Assignment #4 due tomorrow by 10 a.m. • email to dag14@cornell.edu • No class Friday. • Next assignment distributed after break. • Sunshine Week is March 10-16 • See sunshineweek.org

2. Fact Gathering and Citizens’ Rights • Legislature and executive branch • Statutes and the right of access • Access to places and records without statutes • Reporters’ privilege issues • Constitutional issues • Shield laws • Courts and judiciary

3. Freedom of Information Laws • N.Y. Law: Public Officers Law Article 6 • What information must agencies make available? • What exceptions to disclosure exist? • See also federal FOIA • To whom does this statute apply?

4. FOIL Exceptions • A statute specifies no disclosure • Disclosure an invasion of privacy • Contract awards or collective bargaining • Trade secrets, etc. that must be revealed • Law enforcement investigation records • Disclosure would endanger life or safety • Inter- or intra-agency communications • Exam questions and answers • Computer access code

5. Sunshine Laws • N.Y. Law: Public Officers Law Article 7 • What meetings must be open? • What role can teleconferencing and e-mail play in the conduct of public business? • When is a closed executive session appropriate?

6. Sunshine Law Exceptions • Imperil public safety • Endanger law enforcement activities or undercover personnel • Interfere with litigation or collective bargaining • Individual medical, financial, credit or employment information and/or hiring/firing information • Information regarding proposed acquisition or sale of property where publicity would affect value • State-administered exam information

7. Electronic Records Issues • Is electronic information “public?” • Can a requester choose the format in which information is produced? • Is computer software a public record? • What access must an agency give to electronic records? • What can an agency charge for access to electronic information?

8. Strategies for Accessing Records • Do your homework so you know what information exists, and in what form. • Make an informal request first. • Develop a good “paper trail.” • Be prepared to negotiate. • Make it clear you are willing [and prepared] to appeal.

9. Access Where No Governing Law • General rule: no more access than available to the public at large. • Selective access: what screening [if any] is appropriate? • Fair process, evenly applied, with a right of appeal if access denied • Sherrill v. Knight • Borreca v. Fasi • Baltimore Sun v. Ehrlich

10. Private Information Within Government Control • What interests might bar access? • Personal privacy • Protection of proprietary information • When, if ever, can the press or public get access? • Who has the information? • Why do they have it? • Why does the press want it?

11. Other Access Issues • Press and/or public recording police activity • Using cell-phone camera in a public place • Secretly recording conversations with public officials • “Anti-Leaks” legislation

12. Reporters’ Privilege • Constitutional issues –Branzburg v. Hayes (1972) and its progeny • State shield laws and how they shape the privilege • Newsroom searches

13. Constitutional Issues • Do First Amendment protections for the press extend to the newsgathering process? • Branzburg v. Hayes (1972) • Current analysis: • What is the setting/forum involved? • Was there a promise of confidentiality?

14. Reporter’s Privilege Test • Is there probable cause to believe reporter has information relevant to specific probable violation of law? • Is there an alternative source? • Is there a compelling state interest that overrides the First Amendment interest?

15. State Shield Laws • How does statute define “journalist?” • What rights does the statute extend to journalists? • Does the statute require a promise of confidentiality to trigger protection? • If non-confidential information is covered, when must it be disclosed?

16. Federal Shield Law • “Free Flow of Information Act” • Prevents a “federal entity” from compelling disclosure unless a balancing test is satisfied • Exceptions for criminal conduct, terrorism, danger of death, etc. • Controversy over definition of journalist • Applies to “communications service providers”

17. How Should Reporters Respond? • Call your lawyer immediately. • Keep all records after the subpoena issued. • Choices when subpoenaed to testify: • Comply and answer questions • Comply and refuse to answer • Refuse to comply altogether • What arguments should you make if you challenge the subpoena?

18. Newsroom Searches • Zurcher v. Stanford Daily (1978) • Privacy Protection Act of 1980 • Work product • Bodily injury or death • Crime to which materials relate [other than failure to disclose] • Non-work product • Destroy or hide evidence if subpoenaed • Subpoena issued but ignored

19. Reporting on the Courts • Overview of the relevant judicial process • Understanding the effects of pretrial publicity • Review of relevant Supreme Court decisions • Analysis of context in which access decisions are made

20. Steps in the Judicial Process • Ways to accuse someone of a crime: • Arrest and preliminary hearing, or • Grand jury indictment • Pre-trial proceedings • Successful plea bargain? • Trial • Voir dire [jury selection] • Pre-trial motions

21. Sheppard v. Maxwell (1966) • Sensational murder trial and extensive pre-trial publicity • Press had free rein in the courtroom • Sheppard convicted • Issue: was his 6th Amendment right to a fair trial compromised? • Holding: yes.

22. Protecting Defendant’s Rights • Sheppard Court noted there were steps that could have been taken: • Judge should control press/public behavior in the courtroom – contempt power. • Witnesses should be insulated before testifying • Judge should limit or control extra-judicial statements by law enforcement, court personnel and parties.

23. Limitations on the Press • Parameters for determining whether limitations are appropriate: • Types of proceedings involved • Types of judicial action that might result • Types of societal interests that might be raised to justify a limitation

24. Types of Proceedings • Preliminary hearing • Pretrial hearing • Voirdire • Criminal trial • Civil trial • Civil deposition • Jury deliberations • ADR proceeding

25. Judicial Actions • Closure of entire proceeding • Closure of portion of proceeding • Gag order to participants • Gag order to press

26. Closing a Criminal Trial • Sixth Amendment right • Richmond Newspapers v. Virginia (1980) • Protecting victim privacy • Globe Newspapers v. Superior Court (1982)

27. Other Criminal Proceedings • Preliminary hearing • Gannett v. DePasquale (1979) • Voir Dire • Press-Enterprise v. Superior Court (1984) [Press-Enterprise I] • ABC, Inc. v. Stewart (2004)

28. Access to Jurors • Voir dire issues as noted • Access to juror names and addresses? • Post-trial access • See State v. Neulander

29. Test for Closure • Findings noted on the record in a hearing that closure necessary to protect a constitutional interest • Those findings show: • Substantial probability that rights will be violated and • Reasonable alternatives won’t protect rights. • Closure must be narrowly-tailored to protect right.

30. Gag orders • Voluntary press-bar guidelines • Nebraska Press Ass’n v. Stuart (1976) • Will publicity interfere with 6th Amendment right? • Are there other less restrictive alternatives available? • Will the gag order be effective?

31. Broadcasting proceedings • Will cameras in the courtroom interfere with the defendant’s rights? • Chandler v. Florida (1981) • Electronic coverage no worse than print coverage • Up to each state to set its own rules