Open Records issues
Limiting access to state citizens
I recently got stuck trying to summarize the muck that is Tennessee "open" records law for our Legal Guide. I don't mean to pick on Tennessee, but it is an excellent example of several issues that journalists and media lawyers face with open records laws.
For some reason, Tennessee is one of several states that only provides access to its records if you are a citizen of the state. I'm not sure the policy rationale. You are still charged a fee for any copies, so I can't see a financial reason to limit access. It also doesn't make much sense in 2011, because if you really need Tennessee records, you can ask someone else (such as a law firm) to file the request for you. But apparently this is not an uncommon requirement and I only hope that in the age of the Internet, states will start eliminating this restriction on public records.
Exhaustive exemptions
Aside from the odd requirement of citizenship, the state also has a very exhaustive list of exemptions for "confidential" information. Personnel files (traditionally open, though with information like SSNs redacted) of any law enforcement officer are especially difficult to get. If you make a request, state law requires your name, address, phone numbers and driver license number to be recorded AND given to the officer whose file you are requesting. If there is "personal information," it is ultimately up to the chief law enforcement officer whether or not it will be disclosed. Even if he or she decides to disclose it, the officer gets a chance to oppose the request.
As a caveat, this may be about protecting the officer's due process rights if someone is trying to investigate the officer for possible disciplinary action. Perhaps the state is concerned that the officer could be investigated and terminated without even knowing that he or she was suspected of wrongdoing. But if that's true, I still don't understand why this applies to personnel files of law enforcement and not other state employees.
Personally, I find it disturbing that certain records are considered public, yet the decision about whether or not to disclose this "public" information is left to the unbridled discretion of a chief law enforcement officer, not traditionally known among journalists as being very "open" with information.
Enforcing open records provisions
Public agencies really don't like complying with open records laws as a general rule. So if you want to sue them to enforce the law and enjoin them from future violations, many states will allow you to do so — however, they won't allow you any damages, and they may not have any provision for fee shifting. So if you get $0 for bringing the suit, how often do attorneys in those states take these cases?
That's why I was glad to hear of Vermont's recent amendment to its open records law, requiring that the public agency pay the plaintiff's attorney's fees if the plaintiff substantially prevails in the suit. States need provisions like these if they are serious about transparency. In other words: if you have a right, you need a remedy.
Amicus curiae
The second goal of the week was my favorite task so far. Amicus curiae are "friends of the court." They are usually filed by organizations, though they can be filed by several individuals (usually politicians) and are submitted for the court's consideration in deciding a particular case. Amicus curiae are not parties to the litigation, but they have an interest in some issue that the case will resolve.
Because they aren't parties to the case the court chooses whether to accept the brief or not. The CMLP writes several and joins several, and this particular issue related to a reporter's privilege not to be subpoenaed to give up nonconfidential materials as evidence in unrelated cases.
Subpoenas of this nature are becoming more frequent and more troubling. Instead of doing research/discovery to get the same information the reporter has used for writing a story, they take a quicker route and subpoena the reporter to hand over all their sources/notes etc. If you have a regular beat reporter who writes on certain litigation-prone issues (e.g. your cops/crime reporters, your Wall Street reporters, etc.) this can become a serious problem. There's the time it takes to comply with lengthy subpoena requests that demand all the notes the reporter has over several years span, and the cost on the company to making sure they are in compliance. Attorney fees alone can be thousands of dollars. It also greatly compromises journalists' independence to be pulled into lawsuits and have their notes used as tools in litigation.
That's why many states recognize a reporter's privilege. Note that this is different from a shield law, which protects a reporter from being forced to identify anonymous sources. This privilege, broadly speaking, protects journalists from subpoenas in suits in which they are not a party. This amicus brief handled just such an issue and was very well written. It was a great experience to be a small part of the process and I certainly hope this reporter is spared from complying with a tedious subpoena.
As a sidenote, tonight the Berkterns are headed to the Boston Museum of Fine Art, which allows visitors in for free on Fridays during the summer and offers a cash bar. Right now the MFA has the Chihuly exhibit on display and I've been excited to see it. One other Berktern and I tried to go to the museum a while ago, but we grossly miscalculated the travel time and arrived too close to closing time to get to go through more than a few rooms. (Lucky for us, we arrived so late that they didn't charge us!) I've been determined to go back so I'm excited to make a return trip tonight. I'll try to post photos this weekend.
Update (07/04):
Well, my camera battery died, so I unfortunately had to take photos with my cell phone camera. But, here's some of my favorite photos from the Chihuly exhibit at the Boston MFA:
No comments:
Post a Comment