Members and friends:
This year, the Capitolbeat board has been considering how to manage the organization going forward. As you know, our long-time executive director moved on to a new job in January. While we were sad to see Tiffany go, the board took the opportunity to reassess our operational structure.
After much discussion, we have decided to see if it would be feasible to develop a relationship with an academic institution. Among other things, we’re hoping such a relationship would give us long-term organizational stability and allow your board to focus more of our energy on programs.
This is by no means a done deal. In fact, we’re just beginning to solicit input from potential partners.
If you have suggestions about potential partners we should seek out, please let us know by e-mailing the board at firstname.lastname@example.org.
We’ve had messages from several of you inquiring about our plans for a 2011 conference.
At the moment, that’s unclear.
At the beginning of the year, our executive director Tiffany Shackelford moved on to a full-time gig at the Assn of Alternative Newsweeklies – a great step for her, and we’re thrilled for her, but it’s left us without a grantwriter/director/conference planner at present. (Replacing her expertise for the same pay rate would be improbable, even if we weren’t financially strapped.)
Don’t worry – we’re still around, and there are no plans for that to change anytime soon. But we’re regrouping and assessing our options, which may include partnering with a j-school or other academic org that can help provide an administrative home for us.
As to this year, it isn’t yet certain, but it looks likely we’ll either have a smaller regional conference late in the year or none at all. We’re still working out whether we can hold a contest without a conference at which we could hand out the awards. Your board is meeting monthly to work these things out. We’ll let you know as soon as we have a proposal.
The title may seem odd but it’s actually a reference to the response I got from a fellow access to information advocate when I mentioned that Capitolbeat had signed on to an amicus brief seeking access to basemaps. He said “is that where you jump off bridges and things”. Of course, when I explained what basemaps are and why we’d want access to them, he knew exactly what I was talking about. After reading this, you’ll probably realize, if you didn’t already, what basemaps are and why you may (or already do) want easyand cheap access to them.
The term “basemap” refers to a particular type of GIS mapping data employed by state and local governments around the country. GIS is a multi-layer technology that allows for sophisticated analysis of geographic information. The basemaps basis data such as boundary lines. address and ownership information. Virtually every level of government has its own set of basemap to reflect geographic territories. It’s a great starting point for analyzing any number of activities. For instance, anyone can purchase relatively cheap, commercially available software which can be used to layer other publicly available databases over this “basemap”. You can layer, for instance, databases relating to transportation, land use, census tracts, postal codes, and other government initiatives to better visualize their effect across a city, county or even the state. Starting to how this can be helpful (if you didn’t already)?
Having been created by the government, GIS is generally considered a government document accessible through the relevant FOI law for the usual nominal access fee. But some entities, recognizing the basemaps’ inherent value, have tried to use them as a revenue-generator. Given the state’s financial troubles, it should be no surprise that the leader in this area are certain California counties. The first California county to demand a significant sum for GIS records was Santa Clara County. In 2006 the California First Amendment Coalition (“CFAC”) sued Santa Clara County for access to certain basemaps after the county declared that the maps were exempt from the state FOI law, but then offered to sell them to CFAC for a princely sum. Santa Clara County invoked at least 6 different exemptions to the FOI law, but relied most heavily on an exemption which states that the government does not have to disclose any computer software developed by a state or local agency. CFAC argued that the basemaps are not themselves software; they are electronic data that require software to review and analyze.
The trial court ruled for CFAC. This ruling was upheld in early 2009 by the California Court of Appeals for the Sixth Appellate District. The Court of Appeals required Santa Clara County to provide the CFAC with its basemaps, at a cost of $ 12.40 ($ 3.10 for 4 discs).
Several California counties immediately amended their GIS release policies to come into line with this ruling. Orange County did not. It continued to refuse to release GIS basemaps, arguing the “software” exemption. This time the Sierra Club has led the charge, filing suit in Orange County Superior Court in April 2009. Shockingly, the trial judge ruled for Orange County, holding that the basemap data was, in fact, part of a mapping system constituting software. It discounted the earlier ruling of the Sixth Circuit as not controlling. The Sierra Club filed a petition for appeal with the California Court of Appeals for the Fourth Appellate District. Fearing that affirmation of the ruling in favor of Orange County will result in other counties in California reinstating large fees for GIS basemaps, CFAC has moved from plaintiff to main amicus party.
22 media organizations and companies joined the amicus brief. You can read it here, but the main arguments are:
- Public Access to electronic GIS mapping data is critical to the public’s ability to monitor government decisions and actions affecting property. This first section of the brief explains how the public, including the press, can use government basemap data in a way that they cannot use similar, nongovernmental maps. The brief shows how these records have been used by media and non-media in several ways.
- The particular “software exemption” claimed by Orange County does not apply to mapping data or any other computerized data. The brief makes a simple, plain statement here: the records sought by the Sierra Club are not software. This is not a factual question, as Orange County would have the court believe; rather it requires investigation into the CA Public Records Act’s plain language and legislative history. The language is equally plain and clear: there is a distinction between software (exempt) and data stored in a computer (not exempt). Furthermore, the only state opinions to date on the subject – from the 6th Circuit Court of Appeals and the California Attorney General – have required disclosure because this is data, not software. This is the most lengthy section of the brief, delving into a significant amount of California-specific legislative history. But it is important not just in this case, but nationwide, as the argument could be repeated again and again where another state’s law has similar language.
- Most importantly, several other states have already exempted computer mapping systems. The brief cites these other states’ exemptions as a way of demonstrating that those states took pains to write their laws more clearly than California – specifically exempting things like “geographic computer databases” (apparently, Iowa, Illinois, Maryland, Nevada and North Carolina have such exemptions). In a sense, then, we’re not just fighting for California’s law, but setting up the fight for all other states in which the law is less than clear. It may have the unfortunate consequence that many states might try to rewrite their exemptions with more precision, but it is often easier and less expensive to defend against such changes in the legislature than fight an adverse agency decision in court.
- An adverse decision would not only affect access to these records but, potentially, any other electronic records that would be re-defined as “software”. This is another issue that has widespread implications both in California and nationally. It could translate into fee increases in the hundreds of thousands of dollars over the long term.
In some ways, this is a very state-specific case of the type we usually avoid. It deals with arcane aspects of that state’s law. But, in a larger sense, I hope you agree that a bad decision here sets the table for: 1) loss of access to these important records in California (this almost certainly will go to the California Supreme Court), and 2) application of the ruling to other electronic records in California. Because California is so large and influential, it’s reasonable to expect that an adverse decision would reverberate thorugh other states, especially those states that have not directly exempted computer mapping systems. These records are extremely valuable, so we’re not talking about a very state-specific, record specific matter of little value – and there’s thousands of real life dollars to be lost.
So, I hope you agree that we did the right thing by simply jumping in.
One of my favorite aspects of serving as Capitolbeat’s attorney is the idea that this organization stands for something important, something good. I truly believe in statehouse reporting and fear for the downward trend in the number of statehouse reporters overall. So I’m proud that I can represent this one-of-a-kind organization that has the potential to benefit its members in so many ways.
In my opinion, one of the most valuable aspects of Capitobeat membership is a service that I’m not really involved in as Legal Counsel but follow with great interest: the member listserv. I find it fascinating to see reporters from around the country comparing notes on how the states address various issues, from high impact policy matters involving the state budget to reporter-centric issues like access to the House or Senate floor to the somewhat bizarre topics like whether legislators are allowed to pack heat in the Chamber.
The case of McBurney v. Young would, if anything, make that listserv more valuable to Capitolbeat membership (and enhance the value of a Capitolbeat membership overall). However, that did stop the Board from, rightfully, I think, voting to join an amicus brief supporting a challenge to the constitutionality of a provision in the Virginia Freedom of Information Act which restricts the Acts use to “citizens of the Commonwealth, representatives of newspapers and magazines with circulation in the Commonwealth, and representatives of radio and television stations broadcasting in or into the Commonwealth”.
The negative impact on statehouse reporters cannot be clearer. As our amicus brief, drafted by the Reporters Committee for Freedom of the Press and filed on behalf a total of 21 media companies and organization notes, there is a two-fold effect, on reporters’ ability to do comparative investigative reporting, as well as the ability to report on “local” Virginia issues which may be of national concern.
The case is currently before the United States Court of Appeals for the Fourth Circuit, meaning there will be a widespread geographical impact. Our brief’s main arguments include:
- Journalists are surrogates for the public and must have access to government records of all types in all states. There are several issues of national importance which will require access to state-agency records. For that reason, the majority of states do not limit FOI access to only citizens of the state. Examples range from the shootings at Virginia Tech in 2007 to the DC Snipers of 2002 to the recent economic meltdown. Out of state reporters either needed Virginia records because there was a direct impact on their state or residents of their state or to compare how their state is or would handle a similar situation.
- Noncitizens are effectively prevented from the “calling of journalism” – a common calling under the Privileges and Immunities Clause of the United States Constitution which precludes states from discriminating against noncitizens unless that discrimination bears a substantial relationship to the state’s objectives. Journalism plays a special role in the development of our national economy and the development and maintenance of a unified nation. Virginia does not have any substantial reason, as required by law, for restricting this right. The Supreme Court has found that a citizenship restriction without a substantial reason for existing constitutes unconstitutional discrimination.
Only a handful of states besides Virginia (Tennessee and Arkansas coming immediately to mind) have these laws. But the most recent court challenge to one of these laws was successful: a challenge to a similar provision in Delaware’s law in the Third Circuit about 6 years ago. A positive result here might lead to other challenges in those last holdouts that retain this requirement; a negative one sets this up for Supreme Court review, with an adverse decision there likely to spawn legislative “fixes” across the states and, potentially, to the federal FOIA. There is no doubt that every state and the federal government would be interested in potentially reducing backlogs by limiting the number of overall requests that might be filed.
So this is a case that must be won — even if Capitolbeat’s members are already filling in these gaps for each other on a regular basis.
Capitolbeat receives its fair share of invitations to join amicus briefs on matters of journalistic import. Some are high profile cases involving major First Amendment and Freedom of Information issues that are instantly recognizable from the many newspaper headlines about the case. Sometimes — and these are not mutually exclusive — the case carries massive legal importance as well, with far-reaching and likely longstanding legal precedent, such as those instances in which we have participated on a brief filed in the United States Supreme Court.
But for every one of these “sexy” amicus briefs (yes, that term is accurate), you can probably find two that are much more mundane in nature. Not “boring” and certainly not any less important (in fact, they quite often the most important as far as day to day protections are concerned), but certainly not headline-grabbing. Wolk v. Olson, the most recent case in which Capitolbeat participates as amicus is one of those cases. If not “mundane”, it’s certainly “arcane”. But it’s also a case that is more likely to convey a real-life effect on Capitolbeat members, with potential harms best minimized by the bright line rule advocated in our brief.
The case arises out of an allegedly defamatory post on a legal blog. But it’s not the “what” that we’re concerned with, it’s the “when”. The post was made in 2007, but the plaintiff, a Philadelphia aviation lawyer, didn’t sue until 2009. This is important because the Pennsylvania statute of limitations requires that a defamation lawsuit be filed within one year of publication. The legal issue centers on how one defines “one year from publication.” While most states define publication as the date on which the article in question was literally first published in a newspaper, broadcast on television or radio, or posted on the Internet, this plaintiff is arguing for something known as the “discovery rule”. It might be easier to think of it as the “discovery exception”, as it states that, in certain instances, the statute of limitations does not begin to run until the plaintiff discovers the offending content.
The original lawsuit was filed in federal District Court in Pennsylvania. The District Court granted the defendant’s motion to dismiss the case because the statute of limitations had run, at which point the plaintiff appealed to the United States Court of Appeals for the Second Circuit. But Pennsylvania’s statute of limitations — and how Pennsylvania courts would interpret that law — is still important because there is no federal defamation law.
Capitolbeat joined 19 other media organizations on a brief which reminds the Court of Appeals that the First Amendment offers more than just substantive protection; it requires certain procedural measures be implemented as well. A strong statute of limitations is one such procedural protection, ensuring that reporters of all stripes are not constantly looking over their shoulders whenever they write anything controversial. Specifically, the brief argues:
- Pennsylvania’s statute of limitations is quite clear, with state courts holding on repeated occasions that the “discovery rule” applies only when there is a private communication or other unique circumstance that prevents discovery of the offending content by reasonable means.
- Internet blogs are mass media, entitled to the same legal protections afforded other mass media. The plaintiff claims otherwise, but offers no support for his conclusion. This argument is not only the strongest legal argument but sends a clear message consistent with the views of Capitolbeat as an organization. While, the brief concedes that “not all blogs qualify as journalism” it strongly disagrees with the plaintiff’s contention that bloggers “do not even remotely resemble journalists in the mass media.” Our brief notes that “mainstream” media organizations increasingly rely on bloggers and other freelance “bloggers” for content. It also cautions that the courts should not be in the business of making judgments as to the quality of content.
- Finally, the brief reminds the court of the purpose of the overall “discovery rule”: free speech requires that the burden of discovering a defamatory publication rests with the plaintiff, to ensure a predictable limit on potential claims.
We hope you agree that there is sufficient justification underlying the Board’s decision to join this brief. While this case applies Pennsylvania’s statute of limitations, many other states have similar statutes and many have some limited form of the discovery rule. The principles enunciated here are applicable to any situation involving potential application of the discovery rule. And the plaintiff’s main argument is one that is likely to be replicated all over the country: that it is unfair to start the clock ticking when the plaintiff doesn’t even know the article exists; he specifically notes that the Internet is not equivalent to traditional mass media in this regard because it is less likely that a potential plaintiff will quickly notice that he or she is the subject of an article (to which one must ask: how can an attorney with his own law firm that produces a blog, his own website that produces another blog and even his own entry in Wikipedia stating that he has appeared on “the ABC Evening News, CBS Evening News, CNBC and CNN Larry King Live” not possibly have set up a Google alert for his own name?). Hopefully, a strong opinion from a United States Court of Appeals will resonate throughout that particular circuit and the nation as well. But more important is the strong overt statement by Capitolbeat that ALL journalists, regardless of media, deserve the same legal protections.
Thanks very much to everyone who entered Capitolbeat’s 2010 statehouse reporting contest. Here’s the full list of winners announced Saturday at our awards dinner in Phoenix:
The John Aubuchon FOI Award:
Judy Lin, Don Thompson, Juliet Williams, and Samantha Young, The Associated Press (Sacramento), “Watchdogging California’s Lawmakers and Governor.”
The judges’ take: “Everything you want in good watchdog/investigative journalism – the stories are both informative and interesting, and resulted in significant changes in ‘business as usual’ for California law makers. Excellent use of the state’s open government laws to uncover nefarious and negligent acts.”
BEAT: The judge in this category said there was so much good work this year, he decided to split up the category.
LARGE NEWSPAPER/WIRE – SINGLE REPORT:
1. James Drew, Dallas Morning News, “Elder Abuse Probes Linger”
2. John O’Connor, AP, “Widening Racial Disparity in Illinois School Discipline”
3. Ted Sherman and Josh Margolin, Star-Ledger (NJ), “Donors Sidestep Campaign-Finance Laws”
LARGE NEWSPAPER/WIRE – IN-DEPTH:
1. John O’Connor, AP, “Secret Early Release of Prisoners in Illinois”
2. Judy Lin and Samantha Young, AP, “Selling California”
3. Tim Novak, Art Golab, Chris Fusco and Dave McKinney, Chicago Sun-Times, “Pension Bonanza”
LARGE NEWSPAPER – COMMENTARY/COLUMN/ANALYSIS:
1. Sean Kirst, Syracuse Post-Standard
2. Tony Messenger, St. Louis Post-Dispatch
3. Kathy Barks Hoffman, AP (MI)
SMALL NEWSPAPERS (Under 75,000)
SMALL NEWSPAPERS – IN-DEPTH:
1. Ben Jones, Post-Crescent (WI)
RADIO – BEAT:
1. Austin Jenkins, Northwest News Network (WA)
2. Marianne Russ, Capital Public Radio (CA)
3. Amanda Vinicky, WUIS/IL Public Radio
RADIO – SINGLE REPORT:
1. Bill Cohen, Ohio Public Radio, “Budget Breakthrough
2. Austin Jenkins, Northwest News Network, “Nursing Home Threatened by Budget Cuts”
3. Marianne Russ, Capital Public Radio, “State Parks and Marijuana”
RADIO – IN-DEPTH:
1. Austin Jenkins and Chris Lehman, Northwest News Network, “Data Center Debate”
2. Bill Cohen, Ohio Public Radio, “Crackdown Doesn’t Change Payday Stores’ Bottom Line”
3. Megan Verlee, Colorado Public Radio, “Biography of a Bill”
RADIO – COMMENTARY/ANALYSIS:
1. Karen Kasler, Bill Cohen, and Jo Ingles, Ohio Public Radio
TV LARGE MARKET (1-50)
TV 1-50 – BEAT:
1. Robert Kittle, WSPA-TV (SC)
TV 1-50 – SINGLE REPORT:
1. Kevin Rothstein, Mike Beaudet, Jonathan Wells, James Goff, Richard Ward of WFXT, Fox 25 and Commonwealth Magazine (MA), “Affordable Housing”
2. Troy Kinsey, Bay News 9 (FL), “Shell Game”
TV 1-50 – COMMENTARY/ANALYSIS:
1. David Gillette, Twin Cities Public Television
2. Troy Kinsey, Bay News 9/Central Florida News 13
TV SMALLER MARKET (51-210)
TV 51-210 – BEAT:
1. Thanh Tan and Ricardo Ochoa, Idaho Public Television
TV 51-210 – SINGLE REPORT:
1. Thanh Tan and Ricardo Ochoa, Idaho Public Television, “State Budget 101”
TV 51-210 – IN-DEPTH:
1. Marcia Franklin, Ricardo Ochoa, Melanie Corry, “Wolf Hunting,” Idaho Public Television
2. Joan Cartan-Hansen, Ricardo Ochoa, Melanie Corry, “School Budget Cuts,” Idaho Public Television
3. Thanh Tan and Ricardo Ochoa, “Education Funding,” Idaho Public Television
TV 51-210 – COMMENTARY/ANALYSIS:
1. Joan Cartan-Hansen, Ricardo Ochoa, Melanie Corry, Idaho Public Television
2. Marcia Franklin, Ricardo Ochoa, Melanie Corry. Idaho Public TV, “Dialogue”
MAGAZINE – IN-DEPTH:
2. Bruce Mohl and Jack Sullivan, CommonWealth Magazine, BRA/housing stories.
3. Charles Wheeler, Illinois Issues, “The Pension Chasm.”
ONLINE – SINGLE REPORT:
1. Breanna Camarillo, Gongwer News Service, “Investigation of Gov. Granholm’s parole policy” (MI)
2. Trip Jennings, New Mexico Independent, “City contractor alleges corruption in Albuquerque City Hall”
3. Todd Heywood, Michigan Messenger, “Arrest of most-wanted sex offender raises policy questions”
ONLINE – IN-DEPTH:
1. Kevin Lee, Illinois Statehouse News, “Scrutinizing Scholarships,” and Suzanne McBride, ChicagoTalks, “Secret Scholarships”
2. Trip Jennings, New Mexico Independent, “Governor, entourage leave scene of Elephant Butte boat crash”
3. Len Lazarick, MarylandReporter.com, “General Assembly Compensation”
ONLINE – COMMENTARY/COLUMN/ANALYSIS:
1. Lou Jacobson, PolitiFact.com / NationalJournal.com
1ST PLACE: University of South Carolina, School of Journalism. “South Carolina breastfeeding bill could affect custody cases.” Journalists: Jennifer Standard and Paul Bowers. Edited by Paul Bowers.
2ND PLACE: Michigan State University, College of Communication Arts & Sciences. “Experts weigh new state budget principle;” “Proposal for part-time Legislature lingers;” “Term limits too limiting, some incumbents find.” Journalists: Nick Mordowanec/Budget; Danielle Emerson/Part-time Legislature; Daniel Opsommer/Term limits
3RD PLACE: Michigan State University, College of Communication Arts & Sciences. “Restrictions proposed on lawn fertilizer use;” New sulfide mining proposal sparks criticism;” “Property owners, farmers going hog-wild over feral pigs”
Journalists: Laura Fosmire/Mining; Danielle Emerson/Feral pigs; Hyonhee Shin/Fertilizer
Congratulations to all our winners, and again, thanks to everyone who entered!
(UPDATED: See below.)
The results of Capitolbeat’s 2010 elections are in. No negative ads were run, no outside money was involved, and no one’s demanding a recount (at least so far).
Thanks to all of you who voted, either in Phoenix or online.
- President: Laura Leslie, NC Public Radio
Vice President: Mark Binker, Greensboro News-Record (NC)
Treasurer: Alan Johnson, Columbus Dispatch (OH)
*Secretary: Ryan Rusak, Dallas Morning News
Newly elected board members:
- Joan Cartan-Hansen, Idaho Public Television
Anjeanette Damon, Las Vegas Sun
Dan Vock, Stateline.org
Re-elected board members:
James Pindell, WMUR-TV (NH)
Continuing Board Members:
- Kathleen Haughney, News Service of Florida
Barry Smith, Freedom Newspapers/M2M Politics (NC)
Peter Wong, Salem Statesman Journal (OR)
* Note: Ryan Rusak, our immediate past Secretary, ran for a board term this time because of some health issues, but said he’d serve as Secretary if no one else ran. Despite his best efforts, he was elected Secretary again on write-in votes.
We’ll let you know which position he decides to accept. He has agreed to be Secretary again, which is really good news.
NB: Former Capitolbeat President Aaron Sheinin was also elected to a board term, but has had to decline the seat due to conflicting responsibilities.