MassCommLaw_Exam3

Explain ONE of the FOIA reforms in the 2007 Open Government Act

- Made several reforms designed to expedite processing of FOIA requests; help requesters more easily obtain better information about the status of their requests; and hold federal agencies more accountable if they fail to timely respond to request - Includes: requiring government agencies to assign a tracking number for each FOIA request that will take more than 10 days to process and to establish a phone number or an internet site to help requesters check the status of their requests

FOIA

Freedom of Information Act - Gives any person access to all the records kept by all federal agencies, unless the material falls into one of nine categories of exempt material

Too Much Media, LLC v. Hale (2010)

- New Jersey court ruled that its shield law does not protect a woman posting messages on a forum where members post their thoughts regarding subjects related to porn and postings and comments are public who claimed she was a journalist. This case defined news media and news. Court ruled that proclaiming oneself as a journalist is not enough to make them one. She had no credentials or proof of affiliation with a news entity and was not professional. Supreme court agreed saying online message boards are not similar to news entities and that writing a letter or posting a comment online does not have a connection to news media and does not make them a journalist.

Shield laws: What is a shield law? Define good and bad aspects of shield laws?

- That offers reporters some protection against being forced to reveal the identity of confidential sources. And protects their First Amendment right. Good - has considerable elasticity Bad - there are distinct variance from state to state

In re Madden (1998)

- This case defined what a journalist is, one who: 1) engages in investigating reporting 2) gathers news 3) possesses the intent at the beginning of the news gathering process to disseminate the news to the public. - Madden was a wrestling commentator who was subpoenaed to testify about WWF's financial difficulties. He raised first amendment privilege saying he was a journalist. The court disagreed saying he was an entertainer who disseminated hype, but not news.

O'Grady v. Superior Court (2006)

- This case defined what a journalist is: one who gathers, selects, and prepares for the purpose of publication to a mass audience information about current events of interest and concern to that audience. Two publishers of blogs that carried information on Apple products were subpoenaed by Apple to find out who leaked their secret plans to release a certain device. The operators argued that they were acting as publishers, editors, and reporters in posting the information on their sites, which meant that they did not have to reveal the names of their sources. They were entitled to protection under California shield laws and first amendment and state constitution. You have to be a journalist to call upon shield laws because they can protect a publisher, editor, and reporter employed upon a newspaper magazine or other periodical publication from disclosing sources of information. This law did not include websites until this case. The court found that there was no bias to distinguish the web operators from being reporters, publishers, and editors who provide news to the public through traditional print and broadcast media.

Favish Test

Used for those requesting government-held information: 1- Must show public interest in the info is significant 2- Must show info is likely to advance that public interest

How do we define Agency?

"Any executive department, military department, government corporation, government-controlled corporation or other establishment in the executive branch of government (including the executive office of the president), or any independent regulatory agency.

What happened in the Prison Legal News (2011) case? To override Exemption 7c, personal privacy, those requesting government-held information use the Favish case test, which is the requester:

- 1) Must show public interest in the info is significant; 2) Must show info is likely to advance that public interest. This relates to the block quote page 361. - "Where there is a privacy interest protected by Exemption 7(c) and the public interest being asserted is to show that responsible officials acted negligently or otherwise improperly in the performance of their duties, the requester must establish more than a bare suspicion in order to obtain disclosure. Rather, the requester must produce evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred." - Addressed whether Exemption (c) would prevent the release to a newspaper that covers prison issues copies of certain autopsy images and a videotape taken by Bureau of Prisons (BOP) personnel that showed the mutilated body of an inmate named Joey Jesus Estrella who savagely killed by two cellmates. - The records sought by the Prison Legal News "unquestionably reflect death-scene images" It held that Exemption 7(c) and the family's privacy interests prevailed—the images and videotapes in question would be permanently sealed.

Rhea v. District Board of Trustees of Santa Fe College (2012)

- An email was sent from a student saying things about an administrator and they did not want the teacher having access to the email. the argument arose whether the email was considered an educational record. It is not because it wasn't directly related to a student and was directly related to the instructor. The teacher had a right to know who sent the email complaining about him and the fact that a student was the author does not mean it is considered an educational record. FERPA

Branzburg v. Hayes (1972)

- Branzburg had to testify about drugs in Kentucky after he wrote a story on drugs and their dealers. The court ruled that there is no privilege under the first amendment for journalists to refuse to reveal the names of confidential sources or other information when called to testify before a grand jury. The dissent from this case created the Stewart test: Stewart Test: Reporters can protect the identity of their source if one prong fails: 1) There is probable cause to believe the reporter has information that is relevant to the violation of the law 2) the information sought cannot be obtained by an alternative means 3) the state has compelling and overriding interest in the information.

Two types of Contempt Power

- Civil Contempt: To coerce a change of behavior. The court is instructing you to do something, the court is in charge. The court says you must do something or else you will go to jail until you do what they say. Punishment: indefinite incarceration and/or a fine - Criminal Contempt: a punishment for a misdemeanor. Imposed to uphold the dignity and authority of the court and it's orders - Reporters who refuse to respond to a subpoena, editors who criticize a judge, newspapers that refuse to pay a libel or invasion-of-privacy judgment, all of these and more can be held in contempt

Cohen v. Cowles Media Co. (1992)

- Cohen was promised anonymity by journalists if he gave information on his rival candidate, but the information was old and insignificant. The paper changed the story's angel making it about how cohen supplied information about his rival. Cohen lost his job because of the story. He used promissory estoppel and sued the papers. The court ruled that journalists cannot break general laws and then try to claim a first amendment exemption from the rule.

Other statutory law that restricts access to information:

- FERPA: The Family Educational Rights and Privacy Act - Is a federal law designed to safeguard the privacy of students' "education records." It applies to all levels of schools that receive funds under any program administered by the U.S. Department of Education. - FERPA affects: who can access education records and what information a school may or may not disclose

Associated Press v. U.S. Dept. of Defense (2006)

- Federal judge held that the department of defense was protected under Exemption 1 from disclosing photographs of past and present detainees at the US facility in Guantanamo Bay, Cuba. The judge accepted the government's claim that 1) public disclosure of the photos would increase the risk of retaliation against the detainees and their families and 2) make the detainees fear of retaliation worse, which would reduce the likelihood that detainees would cooperate in intelligence gathering efforts.

Define and clarify the purpose of the federal Government in Sunshine Act and State open-meeting statutes

- Government in sunshine act is a FOIA act that states "every portion of every meeting" of an agency must be open to the public. It also ensures that advanced notice is given to the public before an agency meeting takes place. It has ten exemptions. - Federal open-meetings law: This law reaches about 50 agencies in the executive branch and the regulatory commissions. Members of these organizations are not permitted to hold secret meetings unless they will discuss material that falls into one of 10 categories. These categories mirror the FOIA exemptions but also include a provision that permits closed-door meetings to discuss attempts to arbitrate or adjudicate certain cases or problems. - One of the most important aspects of any open-meetings law is the strong sanction that may be imposed on government officials who fail to follow the mandate of the law. They are normally written in one of two ways

How do we define "Agency Record"?

- If the record is either created or obtained by an agency and the record is under agency control at the time of the FOIA request, it is very likely an agency record - If the agency has created the document but does not possess or control it, it is NOT an agency record - If the agency merely possesses the document but has not created it, it might be an agency record, or it might not. If the agency came into possession of the document as a part of its official duties, it is probably an agency record. If it just happens to have the document, it is probably not an agency record.

Who is a journalist? Test from in re Madden (1998). The Shoen, O'Grady and Too Much Media cases help, as well. Resolve again the case problem question below

- In re Madden - A journalist is one ... (PAGE 420) Who engages in investigating in reporting; Who gathers news; and Who possesses the intent at the beginning of the news-gathering process to disseminate the news to the public. - The Shoen O'Grady - Freelance writers can still be protected. But, you must show, not tell how you are a journalist. - Too Much Media - Hale was not entitled to protection under New Jersey's Shield Law because the online comment board is more a forum for conversation, not dissemination of news. He was a "self- proclaimed" journalist

Privacy Act of 1974: Define its two basic thrusts/purposes

- It attempts to check the misuse of personal data obtained by the federal government, the quantity of which has, of course, reached staggering proportions - Is intended to provide access for individuals to records about themselves that are held by federal agencies

Shoen v. Shoen (1993)

- This case extended reporter's privilege to include authors of books, even freelancers. This was a book about U Haul and the author interviewed many family members, including the father of the sons who were trying to take over the company. During the trial the author was asked to share information from the father's interview and the judge said "you don't have to go to the author when you can get the information elsewhere. This particular information was OBTAINABLE from another source and did not need to involve the author." This meets the Madden test on what a journalist is by: 1) engages in investigative reporting by writing a book and being a freelancer 2) gathers news and information and interviews about the U Haul issue 3) possesses the intent at the beginning of the newsgathering process to disseminate the news to the public by writing the book to be published and disseminate and make money. This also works for the third prong on the STEWART TEST in regards to UNOBTAINABLE information.

Hatfill v. Gonzales (2007)

- This case gives the legal reasoning on unobtainable/critical information on the Stewart/Burke Test. The lawsuit was against the federal government agent for leaking to journalists Hatfill's name as the perpetrator who mailed anthrax-laced letters. The Judge ordered 6 journalists to reveal the names of their FBI sources who said Hatfill's name. Journalists had the first amendment privilege not to testify but the privilege was overcome by Hatfill because the actual identity of the sources will be important and essential to the lawsuit: CRITICAL - Hatfill exhausted all reasonable alternatives for acquiring sources of the leaked information: UNOBTAINABLE.

Prison Legal News v. Executive Office for United States Attorneys (2011)

- This case makes it clear that privacy rights do NOT die with the individual, it extends to the family. This case discusses whether exemption 7c would prevent the release of a paper that covered prison issues and photos of the mutilated body of a dead inmate. The privacy interest was in the dead inmates family members. The images were publicly displayed during the trial but the inmate's family possessed privacy interest on them and the family chose to not take action in placing the images in the public domain. - The Favish test. To override the FOIA Exemption 7c, personal privacy, those requesting the government-held information must establish sufficient reason for disclosure. The requester: 1. Must show public interest in the information is significant and; 2. Must show the information is likely to advance that public interest

U.S. v. Burke (1983)

- This is the STEWART TEST and is from the DEFENDANT'S perspective. Who is seeking the journalist's information? The defendant was charged for conspiracy in connection with a basketball point shaving scheme. He attempted to impeach the testimony of the prosecution's chief witness. The defendant asked the court to subpoena the unpublished notes and drafts of a sports illustrated reporter who interviewed the witness, but it was rejected. A COURT MAY ORDER REPORTERS TO REVEAL CONFIDENTIAL SOURCES ONLY WHEN THE INFORMATION IS: 1) highly important material and is relevant 2) necessary or critical to the defense 3) unobtainable from other sources

Citizens for Responsibility and Ethics in Washington v. U.S. Dept. Homeland Security (2009)

- White House visitor guest logs are considered public records and are subject to FOIA because they are under the legal control of a government agency (US department of homeland security). Visitor logs do not fall within the scope of the presidential communications privilege, thus they aren't shielded from disclosure by FOIA exemption 5 (working papers/discovery).

Promissory Estoppel

- legal principle that a promise is enforceable by law, even if made without formal consideration, when a promisor has made a promise to a promisee who then relies on that promise to his subsequent detriment To prevail in an action for promissory estoppel the plaintiff is usually required to show: 1. Defendant made a clear and definite promise to the plaintiff 2. Defendant intended to induce the plaintiffs reliance on that promise; 3. The plaintiff, in fact, reasonably relied on that promise to his or her detriment and harm; and 4. The promise must be enforced by the court in the interests of justice to the plaintiff

Two purposes of contempt power

1. A court can use the contempt power to protect the rights of a litigant in a legal dispute 2. The contempt power can be used to vindicate the law, the authority of the court or the power of the judge

Nine Exemptions to FOIA

1. National Security Matters 2. Housekeeping Matters 3. Statutory Exemption/Material Exempted by statute 4. Trade Secrets 5. Working Papers/Discovery/Lawyer-Client privileged materials 6. Personal Privacy Files 7. Law Enforcement Records 8. Financial Institution Materials 9. Geological Data

Stewart Test (Branzburg v. Hayes)

1. Relevant: Probable cause that the reporter has information relevant to the violation of the law. 2. Unobtainable: There is no other alternative means to get the information. 3. Critical: The government has a compelling interest in the information.

New York Times v. Gonzales (2006)

This case discusses all three prongs of the Stewart test. 11 days of phone records were sought by 2 reporters investigating a government plan to freeze islamic charities thought to fund terrorism. This was: 1) RELEVANT because the reporters actions were central to and caused the grand jury's investigation. The relationship to their sources and the leaks themselves were crucial to the present investigation. This was.. 2) UNOBTAINABLE because the reporters were the only witnesses other than the sources available to identify the conversations in question and to describe the circumstances of the leaks. This was... 3) CRITICAL because the government had a compelling interest in maintaining the secrecy of asset freezes or searches or else the target could be informed and get rid of the incriminating evidence. Not only is the principle of secrecy regarding imminent law enforcement actions at risk but so was the facts that may constitute a serious obstruction of justice. The reporters were forced to release the information.