Chapter Overview

News Gathering and the Law:

Gaining access to government-held information is an important problem for journalists and citizens alike. Since the early 1980s government has become more reticent about providing easy access by reporters to the vast amounts of information held by agencies within the government. Public opinion tends to support the government in this regard, and journalists have been forced to exercise legal means to accomplish some reporting tasks. But the law is not always helpful. The common law offers little assistance to persons attempting to inspect government records. The U.S. Constitution was drafted at a time when news gathering was not the central role of the press. There is little evidence to suggest that the right to gather news was intended to be guaranteed by the First Amendment. Federal courts have in recent years suggested that news and information gathering is entitled to some protection under the U.S. Constitution, but they have been stingy in granting such protection. The U.S. Supreme Court has limited the rights of reporters to gather information at prisons and jails to the same rights enjoyed by other citizens. Lower courts have found broader, albeit qualified, constitutional rights of access. Courts have not permitted, however, the use of the First Amendment to immunize reporters from legal consequences that result when the law is broken while news is being gathered. Many plaintiffs are finding that it is easier to sue the press for how the news has been gathered than for libel or invasion of privacy. Suits for trespass, fraud, misrepresentation, failure to obey lawful orders and other causes of action are becoming more common today. And many are at least marginally successful.

The Freedom of Information Act:

Statutes provide public access to both federal records and meetings held by federal agencies. The federal records law, the Freedom of Information Act, makes public all records including electronic records and e-mail held by agencies within the executive branch of government and the independent regulatory commissions. Courts have given a broad meaning to the term "record" but have ruled that an agency must normally create and possess such a record before it becomes subject to the Freedom of Information Act. Nine categories of information are excluded from the provisions of the law. These include exemptions for national security, agency working papers, highly personal information, and law enforcement files. Agencies must publish indexes of the records they hold and must permit copying of these materials. It is important to follow specific procedures when making a Freedom of Information Act request to see certain records or documents.

The Government in Sunshine Act is the 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 Freedom of Information Act exemptions but also include a provision that permits closed-door meetings to discuss attempts to arbitrate or adjudicate certain cases or problems.

State Laws on Meetings and Records:

All states have laws that govern access to public meetings and public records. Good state open-meetings laws have strong legislative declarations in support of public meetings, specifically define a public meeting by listing the number of members who must gather to constitute a meeting, and declare void all actions taken during a meeting that was improperly closed to the public. Most laws provide for closed sessions to discuss such matters as personnel actions, real estate transactions and litigation.

State open-records laws tend to mirror the federal law. Both state and local agencies are governed by the laws, which apply to most governmental bodies except the legislature and the courts. Most state laws govern all records kept by these agencies, but a few are applicable only to records that are required to be kept by law. Exemptions to state open-records laws include material specifically excluded by other statutes, law-enforcement investigatory information, working papers and highly personal information. Most laws provide for access to the judicial system in case a request for data is rejected, but both New York and Connecticut have established commissions to act as arbiters in these matters, and Florida has adopted a constitutional amendment that governs access throughout state government. A major concern facing both journalists and the public today is the growing use of private businesses to carry out governmental functions.

Laws That Restrict Access to Information:

All the states and the federal government have laws that specifically exclude certain kinds of information from the public scrutiny. Some of these exclusions were noted in the discussion of Exemption 3 of the Freedom of Information Act. Today, the right to privacy has been erected as a substantial barrier to access to information held by government agencies. The federal government has adopted a law protecting the privacy of student records. The Congress passed a federal privacy law, which often conflicts with the provisions of the Freedom of Information Act. The federal government has also insisted that states pass statutes that control access to criminal history records. Much privacy legislation has been passed by the states themselves, and today the right to privacy is being used frequently to block access to public records.