From the hotline
From the Spring 2001 issue of The News Media & The Law, page 12.
The Reporters Committee operates a toll-free hotline 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, will answer common questions that we get from journalists.
Q: I am a reporter who, while attempting to attend a routine public meeting, was turned away at the door and told the meeting is not a gathering under the open meetings law. What can I do to get in?
A: The answer to this question depends on the nature of the meeting and on your state’s open meetings law. Although it is difficult to give specific advice without knowing which state law is governing the meeting, there is some general advice that media law attorneys give reporters no matter what state they are in. To gain a varied perspective, we asked four attorneys from around the country what they would advise reporters in this situation. If you would like more specific information about your state’s open meetings law, check out our publication, “Tapping Official’s Secrets,” which is available on our Web site at: https://www.rcfp.org/tapping
Dick Goehler, Frost Brown Todd LLC, Cincinnati: I would advise the reporter in this situation to make sure that those attempting to close the meeting specifically identify the alleged reason supporting a closed meeting or “executive session.” Most open meetings laws have a fairly specific list of valid reasons for closing a meeting and require that the reason be identified prior to the closure. I would further suggest that the reporter make every effort to get to a key decisionmaker in the process so that the reporter can object to the closure and make a request that the meeting remains open to the public.
In our experience working with reporters who regularly cover public meetings, we have found that often times a meeting is closed (or attempted to be closed) by individuals who lack a clear understanding or familiarity with open meetings laws. As a result, we like to equip our clients with cards or summary sheets which can be easily carried in a wallet or a purse and which clearly list the basic requirements of the open meetings law. We have found that many reporters are able to use these summary cards and “educate” those who are making decisions on these meetings issue and as a result, often times talk their way into a meeting that might otherwise have been closed.
The practical problem in these situations, of course, is that the meeting is typically about to begin at the time that the reporter is being barred from the meeting room. As a result, there is often very little that can be done to salvage attendance at that specific meeting. In those instances, we advise the reporters to “record” the closure with pictures and/or video when appropriate. We also recommend that the reporter and the media organization at least consider publishing a story about being barred from a meeting. Editorials on this issue should also be considered. This type of reporting often generates public support and further understanding of these issues – and puts pressure on those attempting to close public meetings.
Jennifer L. Burrows, Phelps Dunbar LLP, New Orleans: Always start from the position that you and your camera have a right to be at any public meeting. If turned away, ask to speak with someone with authority. Ask why they believe the meeting is not “a gathering under the open meetings law” and request that you be allowed to state your objection to the closing of the meeting on the record. Simply state that you object to the closure of the meeting because you have a right to attend under the open meetings law and ask that the meeting be opened to permit you to attend. If denied, request a recess to permit you to contact your attorney. Get the responses (or votes) to your requests on the record. Immediately call the newsroom and, if appropriate, your legal counsel who can assist you and your news organization in deciding whether to go to court to open the meeting.
George K. Rahdert, Rahdert, Anderson & Steele, P.A., St. Petersburg, Fla.: A reporter refused attendance at a routine, otherwise public meeting should make a record of the event. First and foremost, a secret meeting is newsworthy in itself. Secrecy arouses natural suspicion and is a practice of government which its citizens have a right to know exists. Presumably the subject matter of the meeting is out of the ordinary and thus newsworthy, even if the content of the discussion is concealed.
The reporter can also be enormously supportive of future litigation by soliciting an early government admission of the reason for secrecy. Once lawyers become involved, justifications go through quite a bit of refinement, if not creative fiction on the part of government officials and their counsel. Early explanations in the most evidentiary forms possible (letters, taped interviews, statements in front of witnesses) can undermine the government’s subsequent attempt to alter reality.
Having obtained a clear record of the closure, I would want my reporter to call immediately to allow us to evaluate litigation. Litigation of this sort has a very short shelf life. Media lawyers need to get involved immediately. Of course, we would want to involve the editor in all discussions and the decision.
Finally, I would suggest that the reporter or her editor stop by the editorial department to see if the secret meeting might be an interesting subject of comment.
Jack McDonald, Wheeler Wolf Law Firm, Bismarck, N.D.: In North Dakota, all public entities’ meetings are presumed open unless there is a specific statute closing them. So, in these situations, I tell reporters not to leave voluntarily, but rather to push the public body to cite the legal authority for the closure, which is required by our state law, or to request it vote to close the meeting, which is also required by state law. I’ve found that about 75 percent of the time, when faced with resistance, public bodies will give in and open the meeting rather than have to vote for closure. However, I also tell reporters not to make an incident out of it, and if push comes to shove, to leave rather than be dragged out by security guards, and to call me right away.
Q: I am trying to get information about a lawsuit. A witness has been deposed and I want to know what he said. Can I get a copy of the deposition?
A: Depositions are usually not part of the public record and therefore you would not have a clear First Amendment right to the transcript. However, portions of depositions are sometimes filed with the court, usually as exhibits to motions. Any portion of the transcript that is attached to a motion as an exhibit would be considered part of the public record and accessible.
Also, you can try to call the lawyers or the person deposed and ask them what was said during the deposition. There is, of course, no requirement that they answer your questions, but you are free to ask. A lawyer may be bound by a gag order or ethical rules, but a non-party witness is generally not subject to the same rules.
Q: I’m trying to get information from a government employee I’ve worked with before, and now he’s saying that he’s been told by superiors not to talk to the press, and that all media contacts must be channeled through the supervisor. Is there anything I can do about this?
A: Unfortunately, it’s difficult to challenge such restrictions. Courts generally find no violation of a journalist’s First Amendment rights when access is blocked. It may be a violation of the speaker’s rights, but that speaker must be the one to challenge the rule in court. Furthermore, there is generally no obligation for governments to disclose information, except under open records statutes. The best solution? Publicize the incident, and let your audience know that the agency is keeping those employees who know the issue best from helping the public understand how its government is working.