Newsroom Law Blog : Media & Communications Lawyer & Attorney : Brooks Pierce Law Firm : Media Law, Libel Defense, FCC

The New York Times ran an interesting report on how the bad economy has impacted newspapers' decisions on whether to litigate public record and access issues.  The bottom line, according to the Times -- while smaller, regional news organizations are scaling back their legal efforts, large national outlets "have been quietly ramping up."

The Times cited in particular Hearst and the Associated Press as two organizations that have been as aggressive as ever in pushing state and federal officials on public record and access issues.  According to the story, both are dealing with tighter budgets by bringing more of their legal work in-house, rather than using outside counsel.

Eve Burton, vice president and general counsel at Hearst, told the Times that Hearst was at an all-time high in the number of access cases it was pursuing.  Hearst's most high-profile fight is in Texas, where it has sued the governor's office for records relating to the 2004 execution of Cameron Todd Willingham, a man many death penalty opponents believe may have been innocent.

The A.P. and Bloomberg News have also been in high-profile legal fights with Treasury Department officials over Freedom of Information Act requests they have filed, the Times reported.

Unfortunately, the Times found, smaller news organizations are choosing to forgo possibly expensive legal fights because their budgets simply will not allow them.

This reluctance only highlights the importance of attorneys' fees provisions in public records statutes, as they are often the only way to truly hold government officials accountable when they improperly withhold public records.

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The Associated Press reported this week of efforts underway in several states to limit access to 911 calls under state sunshine laws.  According to the report, legislatures in Alabama, Ohio, and Wisconsin are considering bills that would pull back from the traditional availability of 911 recordings.  Missouri, Pennsylvania, Rhode Island, and Wyoming currently exempt 911 calls from the operation of public records statutes.

In Alabama, HB 159 passed the Alabama House earlier this month.  The bill, if enacted, would prevent the disclosure of 911 calls to the public without a prior order from a judge, who would consider "whether right of the public to the release of the recording outweighs the privacy interests of the individual who made the 911 call or any persons involved in the facts or circumstances relating to the 911 call."

Under SB 105, a bill introduced this session in the Ohio General Assembly, 911 calls would remain public records but members of the broadcast media would be barred from "play[ing] a recording of a 9-1-1 call that has been made available as a public record over a broadcast medium such as radio, television, or the internet."  Transcripts of 911 calls could be read over the air.  Violation of the provision would subject the broadcaster to a $10,000 fine.

In Wisconsin, AB 612 as originally introduced would prevent disclosure of 911 audio recordings, with transcripts remaining available for copying.  The bill was subsequently amended in committee to permit inspection but not copying of 911 recordings.

These bills appear to be driven by the reaction of some to isolated editorial choices made by television stations.  As the AP article recounts, the sponsors of these bills cite anecdotal accounts of a person who suffered a traumatic loss later hearing a 911 recording made in connection with the loss.  The problem with these moves to curtail access to 911 calls is that they allow the tail of a few questionable decisions by news editors to wag the dog of access to government records generally.  Police incident reports, arrest reports, and 911 recordings provide important sources of information for reporters to cover local law enforcement agencies, and 911 recordings in particular provide a way of monitoring the responsiveness of 911 call centers.  

The principle that government records should be freely available, no less so than the First Amendment's protections to free speech, comes with consequences.  Sometimes people say things that hurt; sometimes reporters broadcast stories their viewers don't like.  However, these consequences should not cause legislatures to lose sight of the greater societal value of government transparency.

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January has been a prolific month on the U.S. Supreme Court docket for cases raising First Amendment or other media issues.  In addition to the Citizens United and Presley decisions addressing limits on corporate political speech and access to jury voir dire proceedings, the Supreme Court earlier this month agreed to hear a case out of the Ninth Circuit involving public access to the petitions that put in place a controversial Washington ballot initiative.  The petitions were sought under a state sunshine law in an effort to learn the identities of those who supported placing the initiative on the ballot.  The case therefore presents an interesting collision of the First Amendment rights to speak anonymously and to peaceably assemble and state sunshine laws.

We previously reported on the Doe v. Reed case, which the Supreme Court stayed while considering the petition for certiorari it ultimately granted this month.  The case relates to Referendum 71, a ballot initiative that appeared on the November 2009 ballot in the State of Washington and was intended as a vehicle for overturning a law, passed earlier in 2009 by the Washington legislature, that granted legal rights to domestic partners equivalent to those enjoyed by married couples.  The initiative passed with slightly above 53% of the vote, a result that upheld the law.

The dispute in Doe v. Reed involves the question of whether the signed petitions that ultimately allowed Referendum 71 to appear on the ballot constitute public records are subject to disclosure under Washington law as public records.  Nearly 138,000 names appear on these petitions.  The plaintiffs brought suit in federal court, contending that those who had requested the petitions had indicated they would publish the list of names on the Internet.  Making the list available under public records laws, according to the plaintiffs, threatened to chill the First Amendment activity of supporters of Referendum 71.  The plaintiffs assert that those who petitioned to include Referendum 71 on the November ballot would face harassment from opponents of the ballot measure if their names were made publicly available.

The district court issued a preliminary injunction barring release of the names, concluding that "supporting the referral of a referendum is protected political speech, which includes the component of the right to speak anonymously."  The Ninth Circuit reversed, holding that signing one of the petitions at issue does not constitute anonymous speech because the petitions are not created in a way that is designed to protect confidentiality.  It held further that the district court erred in applying strict scrutiny to Washington's sunshine law, and, when intermediate scrutiny is applied, the sunshine law passes muster because "each of the State’s asserted interests is sufficiently important to justify the PRA’s incidental limitations on referendum petition signers’ First Amendment freedoms."

The fact that the Supreme Court agreed to hear the case may signal that the Ninth Circuit ruling's days are numbered.  If that occurs, a sweeping decision affirming the right to speak anonymously would appear to be an important First Amendment victory.  However, the outcome here -- in which a third party has asserted a constitutional challenge to a sunshine law -- has troubling implications for those in the newsroom.  Reporters face enough trouble securing materials under state public records statutes without interference from third parties.  Reversal of the Ninth Circuit's decision may encourage court challenges to public records laws by third parties such as public employees or private entities contracting with or seeking money from public agencies.  We will watch closely for the outcome in this case, which is set to be argued in April.

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The North Carolina Court of Appeals earlier this week affirmed in a 2-1 decision the dismissal of a public records action brought by the State Employees Association of North Carolina ("SEANC") against the North Carolina Department of the State Treasurer ("Treasury Department"). The decision, which held that SEANC failed to state a claim under the North Carolina Public Records Act, N.C. Gen. Stat. s. 132-1, et seq., is troubling in how the court approached both the substantive and procedural issues presented in the case.

The long-brewing dispute traces back to correspondence between SEANC and the Treasury Department from March 2007.  At that time, the North Carolina State Treasurer was Richard Moore, who later fell short in a bid to become the Democratic nominee for North Carolina Governor during the 2008 election cycle.

After an investigative piece appeared in Forbes concerning investment decisions made with respect to the $73 billion state retirement system, SEANC's executive director submitted a written public records request to the Treasury Department.  In response to that request, the Treasury Department provided approximately 700 pages of documents to SEANC.

In October 2007, SEANC wrote again to the Treasury Department, asserting that its response to the March records request was incomplete, and requesting disclosure of additional categories of documents.  SEANC apparently received no response, and a month-and-a-half later threatened legal  action if the Treasury Department did not fully comply with the March and October records requests.  The parties exchanged correspondence in which the Treasury Department made statements about its production and asked in what ways SEANC believed the production was incomplete, and SEANC outlined what it believed were deficiencies in the Treasury Department's disclosure.

SEANC instituted a public records action in February 2008, alleging in its complaint that "defendants have failed to provide copies of a significant portion ofthe public records requested in Dana S.Cope's  March 1, 2007, letter (Exhibit B) and practically all of the public records requested in Dana S. Cope's October 16, 2007, letter (Exhibit C)." 

The Treasury Department filed an answer in response to the complaint, affirmatively alleging that "except insofar as any documents may be exepted from Plaintiff's public records request as 'trade secrets' within the  meaning of N.C. Gen. Stat. ss.132-1.2(1)a and 66-152(3), all responsive records havebeen provided, and that to date well over 2,000 pages of documents havebeen produced."  The Treasury Department also moved to dismiss SEANC's complaint under Rule 12(b)(6) on the grounds that all responsive documents, with the exception of any statutory trade secrets, had been produced.

The trial court granted the Treasury Department's motion, which SEANC appealed.  On appeal, the North Carolina Court of Appeals affirmed the dismissal in a decision that is troubling in at least two respects.

First, despite the fact that the case was at the Rule 12(b)(6) stage, at which point the allegations of the plaintiff's complaint must be taken as true, the court recited material affirmatively alleged (without affidavit or verification) in the Treasury Department's answer.  In particular, the court noted that the Treasury Department contended in its answer that it had produced all responsive documents in its possession (exceeding 2,000 pages) that were not trade secrets.  From this allegation in the answer, the court concluded:

After Defendants reviewed their records to determine which records were public, it was reasonable for Defendants to deny Plaintiff's request regarding the public records that were not in their possession and records which contained trade secrets and therefore were within the public records exception.

This statement assumes the truth of facts not evident from the allegations on the complaint -- indeed that are directly contrary to the allegations of the complaint -- including whether the Treasury Department had sufficiently reviewed its records, whether it had produced all responsive  documents in its possession, and whether any documents withheld in fact constitute trade secrets under North Carolina law.  In short, the court assumed as true matters alleged in the answer rather than matters alleged in the complaint.

Second, from this flawed procedural foundation the court drew a questionable legal conclusion as to the substantive matter before it, namely whether SEANC had stated a claim under the public records act.  The court stated that the Treasury Department "met its burden" under the public records act by asking SEANC to specifically identify what documents it contended the Treasury Department had failed to produce.  Setting aside the question of whether SEANC in its correspondence had in fact provided such specificity to the Treasury Department, the court concluded that

The complaint did not allege that Defendants were in possession of any particular public records that were being wrongfully withheld from Plaintiff, but merely alleged that Defendants had failed to provide portions of the requested public records.

The court does not provide any statutory citation for this purported pleading requirement, nor did it cite any prior appellate decision finding one.  Section 132-9 of the public records act straightforwardly provides:

Any person who is denied access to public records for purposes of inspection and examination, or who is denied copies of public records, may apply to the appropriate division of the General Court of Justice for an order compelling disclosure or copying, and the court shall have jurisdiction to issue such orders.

There is no suggestion that a person who believes a state agency has failed to comply with a public records request need specify in the complaint or otherwise those particular documents he or she believes have been withheld.  And the court offered no explanation for how a requesting party, particularly one seeking categories of documents, would be in a position to set out with precision what documents had not been provided.

The court concluded as follows:

We hold that although Plaintiff did not have the burden of showing Defendants' possession of the requested public records, Defendants correctly reviewed their records, determined which which public records were in their possession, and produced the responsive public records.

The bottom line is that the record before the court -- with only the allegations of the complaint, which must be taken as true, and an answer -- simply does not provide a basis from which the court could reach such a determination at the initial pleadings stage of the case.

Judge Elmore dissented from the majority decision, which means under North Carolina law that SEANC has an automatic right of appeal to the North Carolina Supreme Court.  We will follow closely any further developments in this case.

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The U.S. Supreme Court took action today in a high-profile public records dispute, issuing a stay of a Ninth Circuit ruling that requires the release of the names of those who petitioned to include a referendum on the ballot in the State of Washington this November.  The dispute relates to Referendum 71, a ballot initiative that would overturn a Washington law, passed this year, granting legal rights to domestic partners equivalent to those enjoyed by married couples.  The initiative was launched by a conservative group that opposes same-sex marriage.

In order to appear on the November ballot, supporters of Referendum 71 were required to secure in excess of 120,000 signatures on petitions.  They achieved that benchmark by the July deadline.  Shortly after the petitions were submitted, supporters of Referendum 71 filed suit in federal court in Washington, seeking a temporary restraining order that would block the release of the names appearing on the petitions.  Opponents of Referendum 71 had requested access to the names under Washington's public disclosure act.

According to the plaintiffs, those who had requested the list of names had indicated they would publish the list on the Internet.  In the federal lawsuit, the plaintiffs contended that making the list available under public records laws threatened to chill the First Amendment activity of supporters of Referendum 71.  The plaintiffs contend those who petitioned to include Referendum 71 on the November ballot would face harassment from opponents of the ballot measure if their names were made publicly available.

This case therefore presents an interesting intersection of the statutory right to access public records and the First Amendment right to speak and participate in the political process anonymously.  In response to the plaintiffs' lawsuit, the federal district judge issued in July a temporary restraining order and later in September a preliminary injunction blocking the release of the petitioners' names.  According to the September decision, the plaintiffs' legal theory is as follows:

In Count I of the complaint, Plaintiffs allege that the Washington Public Records
Act, RCW 42.56.001, violates the First Amendment as applied to referendum petitions because the act is not narrowly tailored to serve a compelling governmental interest. In Count II, Plaintiffs allege that the Public Records Act is unconstitutional as applied to R-71 because “there is a reasonable probability that the signatories of the R-71 petition will be subjected to threats, harassment, and reprisals.”

In its ruling, the district court concluded that "supporting the referral of a referendum is protected political speech, which includes the component of the right to speak anonymously."  The court went on to conclude that the public nature of the petition verification process (which may be observed by initiative opponents and proponents alike so long as information contained on the petitions is not recorded) meant that public disclosure of the names on the petitions was not necessary as a check on the integrity of the referendum process.

The State of Washington appealed the decision entering a preliminary injunction to the Ninth Circuit Court of Appeals, which, in an order released October 15, reversed the district court's decision and required the release of the list of petitioners.  The Ninth Circuit has not yet issued a written decision, but rather has indicated that a full written opinion will follow in due course.  In arguing its case to the Ninth Circuit, the State of Washington maintained that the list of names should be publicly available under Washington's public disclosure law because the referendum process is more akin to the legislative process than to the secret ballot.

The case took a new twist today when Justice Anthony Kennedy issued a short order staying the Ninth Circuit's decision while the U.S. Supreme Court decided whether to take up the matter.  Justice Stevens was the only Justice who indicated he would have denied the stay request.  We will follow this case closely as it proceeds.

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North Carolina Governor Beverly Perdue vetoed a bill last week that would have allowed certain documents used in the legislative process to remain confidential.  The Raleigh News and Observer has the full story.

House Bill 104 would have, among other provisions, made legislative "drafting requests," "information requests," and certain other documents submitted in connection with such requests confidential as a matter of state law -- the bill expressly exempted such materials from the state pubic records statute.  Documents prepared by legislative employees at the request of lawmakers would also have been deemed confidential.  The bill would have subjected violators to criminal penalties.

In a public statement announcing the veto, Governor Perdue stated, in part, that “[t]ransparency and accountability are hallmarks of my administration.  If this legislation became law, documents that are currently public record would become private.” 

Governor Perdue's veto could have been overridden by a vote of the North Carolina General Assembly.  But on Friday, House and Senate leaders announced they would not return for a special session to vote on an override.  That means that Governor Perdue's veto stands.

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In a closely watched case, a Leon County, Florida trial court judge held last week that records concerning an NCAA investigation into possible academic cheating by athletes at Florida State University were public records subject to disclosure.  A coalition of media organizations had filed suit under Florida's public records law, seeking the release of transcripts from a 2008 NCAA hearing in which school and NCAA officials discussed the allegations of cheating.

The factual wrinkle that made this case unique was that University officials never actually received a paper copy of the documents from the NCAA.  Instead, the NCAA provided the school with secure access to a web site managed by the NCAA where the transcripts and other documents could be read -- but not downloaded or printed.  Because of this, the NCAA, which opposed making the records public, argued that the state never possessed the records, and therefore they were not subject to the public records law.

Media attorneys and attorneys for the state, which supported the release of the documents, argued that accepting the NCAA's interpretation of the law would allow any state contractor to utilize a similar view-only web site to circumvent the clear intent of the law.

According to the Orlando Sentinel, the judge agreed that the documents were public records.  He said: "The NCAA's position is clearly contrary to the broad interpretation given to the definition of public records in Florida courts and legislative language."  Once University officials looked at the report online, it is as if they had received a paper copy, he said.

The NCAA has indicated that it will appeal the ruling and seek a stay of the judge's order.  The private organization is claiming that subjecting it to state public records laws would violate its First Amendment right of association because confidential informants might be less willing to report possible violations by NCAA schools if they fear public disclosure.

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Last week the North Carolina House passed H. 1134, a bill that would make it easier for private citizens and media organizations who prevail in public records disputes with government agencies to recover their legal fees.  Although the bill is still up for consideration in the North Carolina Senate, having been received and referred to the Judiciary I committee, passage of H. 1134 in the House represents a significant breakthrough.  Past efforts to strengthen the fee recovery provision of North Carolina's Public Records Act foundered in the House.

The bill, co-sponsored by Rep. Deborah Ross, would make several changes to the Public Records Act.  Under the current state of the law, if a court concludes that a losing government agency acted with "substantial justification" in withholding the records at issue, attorneys' fees are not to be awarded to the prevailing plaintiff.  In particular, G.S. 132-9(c) provides as follows:

In any action brought pursuant to this section in which a party successfully compels the disclosure of public records, the court shall allow the prevailing party to recover its reasonable attorneys' fees if attributed to those public records, unless the court finds the agency acted with substantial justification in denying access to the public records or the court finds circumstances that would make the award of attorneys' fees unjust.

The substantial justification provision in G.S. 132-9(c) has proved a difficult hurdle for prevailing plaintiffs to overcome.  Under H. 1134, the grounds for denying recovery of attorneys' fees to a prevailing plaintiff would be narrowed to three specific bases:

In any action brought pursuant to this section in which a party successfully compels the disclosure of public records, the court shall allow a party who substantially prevails to recover its reasonable attorneys' fees if attributed to those public records.  The court may not assess attorneys' fees against the governmental body or governmental unit if the court finds that the governmental body or governmental unit acted in reasonable reliance on: (1) A judgment or an order of a court applicable to a governmental unit or governmental body; (2) The published opinion of an appellate court; or (3) A written opinion, decision, or letter of the Attorney General.

The bill would also create an Open Government Unit of the North Carolina Department of Justice.  The new division would be charged with the responsibility of mediating public records disputes informally before they reach the courts.  The Open Government Unit would also develop and implement education programs designed to educate public agencies of their rights and responsibilities under the Public Records Act, and it would make resources concerning public records available electronically.

H. 1134, entitled the Open Government Act, passed with overwhelming support on the House floor, carrying by a margin of 107-5.  The lopsided margin contrasts with the drama that occurred in the House Finance committee, where an amendment that would have also required losing plaintiffs to pay the attorneys' fees of the winning government agency, failed by a 13-13 margin.

We will monitor the progress of H. 1134 in the North Carolina Senate.

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January 2009 marks the start of a new year, with a new President in the White House and new Governors in a number of states, including North Carolina and Missouri. Two outgoing governors, North Carolina Governor Michael Easley and Missouri Governor Matt Blunt, faced intense conflict with the media during 2008 over the issue of retention of and public access to government e-mail messages under relevant public records laws. The conflicts were often heated but were ultimately resolved in anti-climatic fashion in the final days of their respective administrations.

In North Carolina, Governor Easley had a public clash with local media organizations when it was reported that the Governor’s staff may have directed state agencies to routinely delete e-mails received in the course of government business. The allegations were made following the termination of the state Department of Health and Human Services’ public information officer for, reportedly, failure to comply with public records requests. As the story unfolded, the news media reported that the Governor had established a policy that allowed state employees to delete messages that had only "short-term" value or no "reference" value. For a comprehensive collection of articles and government statements relating to the e-mail controversy, click here.

Like many states, North Carolina has a public records statute that plainly provides a right of public access to e-mail. Section 132-1(a) provides, in relevant part:

“Public record” or “public records” shall mean all documents, papers, letters, maps, books, photographs, films, sound recordings, magnetic or other tapes, electronic data-processing records, artifacts, or other documentary material, regardless of physical form or characteristics, made or received pursuant to law or ordinance in connection with the transaction of public business by any agency of North Carolina government or its subdivisions.

The public records statute further provides that “public records and public information compiled by the agencies of North Carolina government or its subdivisions are the property of the people” and that “the people may obtain copies of their public records and public information free or at minimal cost unless otherwise specifically provided by law.”

Given the clear statutory language and the absence in the public records statute of any blanket e-mail exemption, media advocates disagreed with the Governor's policy that permitted e-mail messages received in the course of transacting agency business to be deleted. In March 2008, the Governor appointed a panel to review executive office policies concerning the retention of e-mail under the state’s public records law. Then, in April 2008 several news organizations filed a lawsuit to enforce the public records law with respect to the Governor’s e-mail policy. The committee made its recommendations in May 2008.

On January 9, 2009—his last day in office—Governor Easley signed an Executive Order adopting a new e-mail policy making clear that “e-mail messages sent and received in connection with state business are public records.” Of course, this finding is consistent with and, in fact, compelled by the public records statute. The full text of the order, which requires 13 points of action, is provided here.

One significant aspect of the order is that it requires state executive branch employees to retain e-mail messages sent or received in the course of conducting state business for at least 24 hours.  Relatedly, the order requires e-mail messages to be backed up at least once daily and for backup tapes to be kept for at least 10 years; this means that all e-mails should theoretically be available in some electronic form for at least 10 years, although obtaining access to e-mail messages available only on backup tapes may be problematic from a practical standpoint.

The order also requires employees who conduct public business using personal e-mail accounts or personal devices (e.g., Blackberrys) to ensure that all public records are properly retained and archived—obviously, this requires employees to take initiative to retain these e-mails and make them accessible to the agency for archiving and to the public for inspection. The order further directs executive branch employees to treat e-mails they send or receive via government e-mail accounts as public records and to handle those e-mails in accordance with the public records statute; however, the order also appears to leave the determination whether or not to delete e-mail messages (after the 24-hour holding period) to employees.

It is unclear whether newly inaugurated Governor Beverly Perdue will let the Executive Order stand as it is or issue a new or different one.

Beginning in 2007 and lasting through 2008, Missouri Governor Blunt had a similar experience regarding retention of government e-mail. In late 2007, media organizations reported that members of the Governor’s staff may have deleted government-related e-mail messages in violation of Missouri’s public records law. As in North Carolina, a lawsuit was filed concerning the Governor’s e-mail retention policies. Then, on January 5, 2009, only days before Governor Blunt’s term expired and the day trial was scheduled to begin, the court hearing the case approved a settlement agreement that requires a review and report of the Governor’s e-mail retention policies. According to press reports, allegations that the Governor’s office had “‘knowingly and purposely’” violated the state public records statute were dismissed.

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