Asked & Answered Summer 2011

In this column, the Reporters Committee attorneys discuss hot-topic questions related to recent issues in media law. Here are our answers.

Note: 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: If I provide copies of interview and other notes I gathered for an investigative report published three years ago to a university researcher or other person for background information only, can I still refuse to disclose the material if I am ever subpoenaed for it in the future?

A: If the reporter provides this material to the researcher, he most likely waives his protection from compelled disclosure of the information.

Most state shield statutes do not address the specific question.

Yet, most limit the scope of protection to acts taken during the newsgathering and reporting process. As such, several courts have found that a reporter abandoned the privilege by disseminating information outside the course of newsgathering activities.

Under this jurisprudence, waiver of the privilege may occur when a reporter shares information or sources with friends or family members, government officials or other people unconnected with the reporter’s employer.

Although there is no federal shield law that statutorily restricts its application to information obtained while newsgathering and disseminating, federal courts likewise have held that a reporter’s privilege is waived when the journalist shares the relevant information in a manner unrelated to his or her newsgathering and reporting activities.

It is important to note that waiver occurs when the information is provided to another person, and its further dissemination beyond that initial disclosure is not required.

The rationale behind the rule is fairly simple. Once privileged information is disclosed in a non-privileged setting, there is nothing left to protect.

In essence, disclosure is an admission by the holder of the privilege that the specific matter once deemed private is no longer worthy of protection. As the New Jersey Supreme Court put it in In re Venezia: “A reporter cannot play peek-a-boo with the privilege,” opting on the one hand to share information obtained during newsgathering and reporting with another person and claiming on the other that the material is privileged from compelled disclosure.

However, it is possible that a reporter could work closely with a university researcher, such as a sociologist or psychologist, so that they become collaborators on a single larger project that includes the journalist’s work.

While this has not been tested in a court, a judge may decide in such a situation that the use of the information does not constitute a waiver.

It may also be helpful to consider what to do with reporter’s notes generally. A reporter should familiarize himself with his organization’s policy on the retention of reporters’ notes, copies of recorded conversations, email messages, outtakes and other newsgathering materials.

If he is an online or otherwise independent journalist unaffiliated with a media entity, he should develop his own policy on this matter.

News outlets that might otherwise archive these materials now routinely destroy them — in some cases, immediately after story publication — so as not to have them on hand in the case of a future subpoena.

Like any other decision, its costs and benefits must be weighed. While these aggressive policies may protect reporters from compelled disclosure of newsgathering information, they also often prevent journalists from using their source material to build helpful archives for future research, report follow-up stories about ongoing issues, generate new leads and identify significant patterns or trends.

In making this editorial decision, a reporter should consider such important factors as his philosophy about aiding the police in their investigations, the ability, or lack thereof, to afford the legal costs of responding to a subpoena and how often he relies on confidential sources in his reporting.

Q: I’ve been following a high-profile court case, and it just settled. The parties won’t disclose the settlement terms. Can I obtain a copy of the settlement through the court?

A: Maybe. When a court case ends in settlement, the public’s right to review the terms of the settlement agreement depends on several factors, including the court in which the case was litigated, whether the settlement agreement was submitted to the court, the type of case at issue and the parties involved.

Courts faced with such requests for public access to settlement agreements often balance a number of competing interests. On one side is the public’s presumptive right of access to court records.

Weighing on the other side may be the litigants’ privacy interests and the courts’ institutional interest in promoting settlement. Parties opposing the disclosure of settlement agreements may argue that the settlement was conditioned on the terms remaining confidential, and that public disclosure would thwart future attempts at compromise.

To a number of courts, an important initial factor is whether the settlement agreement itself has been submitted to the court. For example, the U.S. Court of Appeals in Philadelphia (3rd Cir.) ruled in Bank of America National Trust & Savings Association v. Hotel Rittenhouse Associates that settlement agreements that are submitted to the court are considered judicial records and presumptively open to public access.

However, the same court later ruled in Pansy v. Borough of Stroudsburg that settlement agreements that are not submitted to the court are not presumptively public. The court explained the difference as being that private settlement agreements that are not filed or interpreted by the the court do not constitute “judicial records” subject to a public right of access.

The type of case can also be an important factor. In rejecting a request to seal a settlement submitted in the employment case Miles v. Ruby Tuesday, Inc., a federal court in Virginia found it significant that the labor law under which the plaintiffs sued requires settlements to be judicially approved. To the court, this requirement suggested that Congress intended such cases to be subject to judicial scrutiny, and public oversight enhanced such scrutiny. In addition, public settlements also helped inform the public about the effect of the labor law, the court said.

Whether one of the parties is a public entity can be another important factor. For example, South Carolina Rule of Civil Procedure 41.1 provides that “[u]nder no circumstances shall a court approve sealing a settlement agreement which involves a public body or institution.”

Federal courts in South Carolina have an even broader rule: Local rule 5.03 says flatly: “No settlement agreement filed with the Court shall be sealed pursuant to the terms of this Rule.”

In many states, settlements involving public bodies are also subject to state open records laws. Those laws may enable the public to access the settlement agreements directly from the agencies involved with the litigation. Section 22.13 of Iowa’s Code, for example, says settlement agreements involving government bodies “shall be” public records.

Interpreting Ohio’s Public Records Act, the Ohio Supreme Court, in State ex re. Findlay Publishing Co. v. Hancock County Board of Commissioners, rejected the argument that a confidentiality clause in a settlement agreement absolved the county board of its obligation to produce a copy of a settlement agreement in response to a public records request.

More information can be found in the Open Courts and Open Government guides on the Reporters Committee’s website.

Q: How do I get access to mug shots for a story I’m writing and what roadblocks might I encounter?

A: The first step to getting access to a mug shot is figuring out who has it. Whether the mug shot is in the custody of local and state authorities or federal authorities is a big factor in determining whether or not one will be able to obtain it and how easily it can be obtained.

If a mug shot is in the custody of state or local authorities, one should be able to get access to it in most states.

State laws generally treat mug shots as open records, either through specific provisions, by interpreting the photographs as included in the general definition of public records or as open records under provisions opening police and investigatory records. As an example, mug shots are statutorily open to the public in Oklahoma and Maine.

In Maryland, a 2007 attorney general opinion held that mug shots should be considered investigatory records and, absent a determination that the release of the mug shots would be contrary to the public interest, the records are to be released.

The attorney general issued the opinion after it was proposed that mug shots were to be treated as a part of confidential criminal history reports, which the attorney general refused to do.

Not all states have issued opinions on the subject or specifically address mug shots in their public records laws, so one should check the policy of the office he is requesting the records from. Generally, if the records are not specifically exempt from an open records law, a requester should be able to obtain them. To see what the law is in your state, consult our state Open Government Guide at www.rcfp.org/ogg.

Requesting records from the federal government is a much different situation. In most jurisdictions, one will not be able to gain access to the photographs.

The U.S. Marshals Service maintains that releasing mug shots is a violation of the privacy rights of the individuals depicted. Under Exemption 7(C) of the federal Freedom of Information Act, police investigatory records may be withheld if it “could reasonably be expected to constitute an unwarranted invasion of personal privacy.”

To make this determination, federal authorities will balance the privacy rights of the individual against the public interest in disclosure. The records generally must shed light on how the government is performing its duties to be considered in the public interest.

In March, the U.S. Court of Appeals in Atlanta (11th Cir.) determined that mug shots presented a heightened level of privacy because the images show “the subject in the vulnerable and embarrassing moments immediately after being accused, taken into custody, and deprived of most liberties.”

The court also held that there was little public interest in their disclosure.

However, this decision is not binding everywhere in the country. The reason the media are able to obtain federal mug shots under FOIA is that the U.S. Court of Appeals in Cincinnati (6th Cir.) held in 1996 that mug shots in relation to “ongoing criminal proceedings” must be disclosed under FOIA.

The court held that there was no invasion of privacy at all in releasing the mug shots, let alone an unwarranted invasion. The court also held that, even if there was some invasion of privacy in the release of the mug shots, there was a significant public interest in their disclosure.

As such, if one were to request a federal mug shot in an ongoing criminal proceeding from within the Sixth Circuit, which includes Ohio, Tennessee, Kentucky and Michigan, the U.S. Marshals Service would have to provide it.

And once a mug shot is released to a requester in the Sixth Circuit, U.S. Marshals Service policy states it will be released to any subsequent requester. It is a bit of a roundabout system, but that is how it currently works.