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Capitolbeat to Public Officials: Conduct Public Business in the Public’s View

September 27, 2010

The Capitolbeat Board was unanimous in deciding that the organization should join ten other media companies and organizations on an amicus brief filed recently with the Colorado Supreme Court in the case of Denver Post Co. and Karen Crummy v. Bill Ritter.  The Board immediately recognized the danger posed by an adverse decision from Colorado’s highest court, not only in that state, but throughout the country.   If you read on, I’m sure you’ll agree.

The Post is seeking access to the cell phone records of  Colorado Governor Bill Ritter via the Colorado Open Records Act (“CORA”).  Ritter admits to using his personal cell phone to conduct state business.  The Post originally sought access to his cell phone logs in their entirety; it then narrowed the request to only those records of a non-personal nature made during business hours.  The Governor’s office denied the request, arguing that the records were not government records; it claimed instead that they were records created by a third party independent of the Governor (the Governor, however, conceded that logs of calls made on his state-issued Blackberry are public records).  Unfortunately, the Colorado Court of Appeals agreed with the Governor’s office and upheld the denial of the records.

The Post appealed to the Colorado Supreme Court.  The Reporters Committee decided to file an amicus brief before of the far-reaching implications an adverse decision might have.  The Capitolbeat board quickly agreed that this case is dangerous.  If the Colorado Supreme Court upholds the denial of this CORA Request, you can be sure that every government official in Colorado will start using his or her personal cell phones to conduct business whenever possible.  Though this is just the decision of one State Supreme Court, you could also clearly envision government officials in other states trying this and hoping that their courts reach the same result.  Other organizations that agreed and, therefore, joined the brief, are: the American Society of News Editors, the Associated Press, the Colorado Freedom of Information Council, the Colorado Press Association, the E.W. Scripps Company, Gannett Co., the Newspaper Association of America, the Radio Television Digital News Association, and the Society of Professional Journalists.

The brief, which can be read in its entirety here, makes three main arguments:

1. Allowing a public official to conduct public business on private media defeats the entire purpose of CORA and would lead to further “privatization” of public functions in a way that prevents journalists from performing their watchdog role in society.  The making and receipt of phone calls on a personal phone are actions which unquestionably related to government functions.  Allowing Governor Ritter or any other public official to dodge the disclosure requirements of CORA by selecting which device on which to communicate thwarts the basic underpinning of CORA (or any other public records law), which is the mantra that “the public’s business is the public’s business)”.  Allowing the lower court’s decision to stand would almost certainly see government officials begin to use personal email accounts  for public business as well, meaning virtually every record of a government official’s actions could be hidden from public view.    We are already seeing attempts to circumvent public records laws in this way throughout the country. The brief cites such instances as:

  • The use of a private Email account by North Carolina Governor Mike Easley in intentionally attempting to circumvent the NC record law to hide alleged violations including improper air travel, improper use of vehicles and questionable real state transactions
  • Venice, FL mayor Ed Martin also used his private Email to strategize with candidates in city elections, even though such behavior was specifically prohibited after other city officials had already engaged in the practice.
  • San Jose, CA city council members tried to hide conversations in which lobbyists were directing those city council members how to vote on key development projects by using private Email accounts.
  • An investigation into corruption and fraud in the San Bernandino County (CA) assessor’s office revealed that instant messaging was used to circumvent public records laws.
  • Iowa Governor Chet Culver used his private Email account to conduct most of his state business but voluntarily decided to reveal those Emails, leading FOI expert Charles Davis to note that “When you’re conducting public business, it should be agnostic as to platform”.
  • The problem exists at the federal level, where the Bush Administration used the RNC’s Email system to communicate on government business, a tactic that has continued into the Obama Administration (though obviously on the DNC system).

2.  The magnitude of this problem is troubling because cell phone (and similar) records are standard investigative sources frequently used by journalists to report on government activity.  We all know it:  reviewing cell phone records is one of the best ways to confirm that an official has or has not engaged in particular conduct.  The brief does a great job of compiling examples here as well:

  • The Arizona Republic used cell phone records to show that the Governor’s Deputy Chief of Staff called a former campaign treasurer who was seeking a large government contract.  Multiple phone calls were made immediately after the relevant government decision making body met, resulting in the former campaign treasurer’s firm dropping its bid by $ 400,000 and, eventually, winning the contract.
  • The Fort Myers (FL) News-Press used cell phone records to show that a local Sheriff violated an office policy by associating with convicted felons, despite the fact that he had previously demoted, transferred or filed employees who did the same.
  • The Oakland Tribune uncovered an alleged attempt a political takeover of the local school system by demonstrating that the relevant agency communicated frequently with top politicians, including Oakland Mayor Jerry Brown.
  • Of course, White House visitor logs (a variation on the cell-phone records) showed that Jack Abramoff met with White House officials.
  • Credit card statements have shown how government officials spend their workdays either not working or pursuing illegal activities on behalf of other government employees.
  • The problem threatens to move to the area of “metadata”, data embedded in computer-generated documents that is used by reporters to read between the lines with regard to certain records.  Metadata is technically created by an outside party in the performance of government duties as well.
  • These personal cell phone records clearly fall within the definition of a “public record” under CORA.  This section does parrot the Post’s biggest argument – the strictly, by the books, definition of a public record includes anything made, maintained  kept by a government attorney in his official capacity.

3.  Finally, the brief restates one of the Post‘s main arguments:  these personal cell phone records clearly fall within the definition of a “public record” under CORA.  This section does parrot the Post’s biggest argument – the strictly, by the books, definition of a public record includes anything made, maintained  kept by a government attorney in his official capacity.

I hope you find this case as interesting as I do and agree that this is becoming an increasingly dangerous and difficult problem that must be nipped in the bud.

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Capitolbeat 2010 Registration is Open

August 3, 2010
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As a reporter, you go to where the news is. That’s kind of the approach we took when planning Capitolbeat 2010. We wanted to go where the news is happening and will be happening when we set up shop Nov. 11 through Nov. 13.

Welcome to Arizona.

The state’s immigration debate has captured the nation’s attention and could be showing up in your very own state capitol.  (Newsweek says so!)

As you can well imagine, this year’s conference will include plenty of discussion of immigration policy. We’ll also have sessions you’ve come to rely on covering state budget and politics.

This year’s panel will also include hands-on sessions on multimedia and plenty of story ideas you can take back and start working on right away.

Interested? Then click here to head to our conference page to register and find a hotel room.

Capitolbeat and AAPOR webinar on polling

July 19, 2010
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What: Capitolbeat and AAPOR polling webinar
When:
July 29, 2010 12:00 PM – 1:30 PM EDT
Who:
Anyone who wants help sorting through the vast array of polls and poll results.
Sign up:
https://www2.gotomeeting.com/register/610975691

Capitolbeat members:

The fall general election campaigns are quickly approaching and anyone covering races for offices from the U.S. Senate on down to legislative seats knows they’re about to get hit with a bunch of poll results and analysis. But do all those numbers really mean anything and should you pass them along to your readers and viewers?

Capitolbeat in conjunction with The American Association for Public Opinion Research is offering a webinar July 29 to help answer your polling questions. Special thanks to the Pew Center on the States for making the webinar platform available.

The proliferation of public polls have made more numbers available but vastly increased the variety of ways in which polls are conducted. It is more important than ever for journalists to identify the strengths and weaknesses of polls, to understand how to interpret results and to know what questions to ask pollsters about transparency and integrity.

In this presentation by polling experts from the American Association for Public Opinion Research, Capitolbeat members will learn how to tell which poll results are reliable enough to report on. They’ll learn the differences between polls conducted by machines and those conducted by human interviewers; what qualifies as a random sample and what that means; how to weed out biased or cherry-picked results; and how to describe polling results in a way that is both accurate and easy to understand.

Speakers will include:

Cliff Zukin, Professor at Rutgers University and Senior Fellow at the John J. Heldrich Center for Workforce Development, former AAPOR president

Mike Mokrzycki, independent research consultant and former polling director at The Associated Press.

Ryan Rusak, State Government and Politics Editor at the Dallas Morning News and a Capitolbeat board member, will moderate.

To prepare for the call, participants are encouraged to look over AAPOR’s suggested list of questions for reporters writing about polls beforehand. The list can be found at:

http://www.aapor.org/Questions_to_Ask_When_Writing_About_Polls1/1505.htm

To sign up for the webinar, simply go to this link: https://www2.gotomeeting.com/register/610975691

Capitolbeat objects to NC General Assembly’s subpoena of a reporter

July 5, 2010
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The Capitolbeat board today voted to voice our objections to a situation in North Carolina. Specifically, a legislative committee has subpoenaed testimony and unpublished work product from a television reporter. You can read more about this story here and here and here. Below is the letter that Capitolbeat President Laura Leslie sent on our organization’s behalf.

Senator Marc Basnight

President Pro Tempore of the North Carolina Senate

16 W. Jones St., Room 2007
Raleigh, NC 27601

Senator Fletcher L. Hartsell,

Chairman of the Senate Judiciary II Committee

300 N. Salisbury St., Room 5I8

Raleigh, NC 27603
Senator Basnight and Senator Hartsell:

This letter is on behalf of Capitolbeat, the national association of statehouse reporters and editors. We are profoundly concerned about the orders and subpoenas you recently issued to UNC-TV and Senior Legislative Correspondent Eszter Vajda, a member of our Board, in reference to her investigative report on Alcoa’s Yadkin River Dam.

We understand that this specific circumstance is complex and involves issues beyond those surrounding press freedoms. We also take note that UNC-TV is a state agency, and could therefore be construed to be subject to the same legislative reporting laws that apply to other agencies.  However, we strongly disagree with that interpretation.  Even though the station is part of state government, its journalists and its work products are still entitled to not only First Amendment protections, but the protection of the state’s shield law as well.

Whatever the larger circumstances of the case may be, we must object to the legislative use of a subpoena to compel a journalist to testify and produce her work. Such action is counter to our nation’s tradition of press freedoms, and noxious to the idea of a free press. Furthermore, it sets a dangerous precedent. Journalists should never be compelled to serve as the investigative arm of a government agency.

As your subpoenas indicate, North Carolina G.S. 120-19 gives the General Assembly the right to demand information from state agencies. If you truly believe UNC-TV to be subject to that law, then the subpoenas are superfluous.  But we believe that the shield law, G.S. 8-53.11, clearly supersedes both the orders and the subpoenas.

Senator Hartsell, you helped draft the shield law in 1999, and both of you supported the legislation when the General Assembly passed it.  We ask that you withdraw your orders and subpoenas immediately.

Respectfully,

Laura Leslie, President, Capitolbeat

Capitolbeat Takes a Stand for the “Greater Good”

June 28, 2010

Sometimes taking a stand for the First Amendment means you have to align yourself with some pretty unlikeable people.  The most recent amicus brief Capitolbeat has joined provides the perfect illustration of that statement.    The case, before the Supreme Court of New Jersey, is officially titled G.D. v. Bernard Kenny and the Hudson County Democratic Organization, Inc.  But the brief drafted by attorneys for the New Jersey Press Association and also joined by Capitolbeat, Advance Publications, Inc., the Associated Press, the ACLU of New Jersey, and  the American Society of News Editors steers clear of the facts of the particular case in favor of addressing the larger implications of overturning the appellate court’s decision.

The facts of the case are somewhat disturbing. During the 2007 New Jersey State Senate campaign, defendants mailed 17,000 fliers to more than 8,000 households in the state. These fliers  stated that the plaintiff, formerly a part time aide to one of the opposition candidates, was formerly a drug dealer who spent 5 years in jail for selling cocaine near a public school. 

In fact, the plaintiff was arrested in 1990 at age 18 and pled guilty for possession of a controlled substance with intent to distribute.  But there was no evidence he actually sold any drugs, there was no proximity to a public school and he did not spend 5 years in jail.  In fact, the arrest record was expunged in 2006.  Plaintiff sued for defamation, infliction of emotional distress, invasion of privacy and conspiracy.   Defendants, predictably, moved to dismiss the claims and moved for summary judgment in their favor.  The trial court dismissed both motions because discovery would be required to resolve the highly factual issues about the truth of the allegations and whether the plaintiff’s privacy rights were violated.  The appellate court reversed, holding that the expungment of the arrest record did not render the allegations substantially and materially untrue, nor did they give rise to an invasion of privacy or intentional infliction of emotional distress claim.

The plaintiff took the case to the New Jersey Supreme Court, where he made three main arguments:

  1. An expunged criminal history cannot prove the “truth” of otherwise  defamatory communications without violating the NJ expungment statute
  2. An  expunged criminal record is not a “matter of public record” that precludes causes of action for the privacy torts of false light, publication of private facts and invasion of privacy
  3. An individual has a reasonable expectation of privacy in facts that are found in expunged criminal records

There was 100 percent agreement among the Board that the defendants who created and distributed these fliers were really not all that likeable. There was also uncertainty about the overtly political genesis of the case itself.  But all recognized the greater issues in play and agreed that the danger to journalism merited Capitolbeat’s participation; the board simply needed to be sure that the brief concentrated on those dangers to journalism, rather than the parties to this particular case.

In the end, the brief did just that.  You can read it in its entirety here, where you’ll see that our main arguments were

  1. Expunging a record doesn’t erase the act giving rise to the criminal charges; it simply relieves the criminal from any further liability deriving from the existence of a criminal record. So writing that a criminal act once occurred must still be writing the truth and, thus, prevents any liability for defamation.   As the brief notes, courts – from the Supreme Court on down – have always held that publication of lawfully obtained truthful information cannot give rise to an invasion of privacy lawsuit (and, of course, truth is a defense to a defamation case).   There is a strong recitation of lower court and state court cases from around the country which support this proposition with regard to news reporting, with the conclusion that only the custodian who illegally released the record being liable for punishment.
  2. The expunged criminal record is still a “public record” that precludes any invasion of privacy lawsuit.  While plaintiffs may claim a privacy right in the expunged criminal record, it is still a government record.  The government’s removal of any further criminal liability based on those actions should not and cannot be read as the government’s endorsement that the person is entitled to no further public discussion of his or her crime. Nor, again, does it change the fact that the person once actually committed a crime (in other words, it’s not a reversal of the original conviction). 
  3. There can be no expectation of privacy in expunged records.  Again, the act itself still occurred.  Though there may be no criminal impact remaining and the government may not invoke the act against the criminal in the past, it has not simply disappeared.  This is especially true in the digital age, where a repository of information about the person and his or her actions is likely archived anywhere – and there’s nothing we can ever do to change that (in fact, to say that the expungment means a newspaper cannot discuss the criminal act might also be read to say that all references to the criminal act must be deleted from archives). 

We hope you agree that these issues (though perhaps not these facts) could be repeated in your state and that Capitolbeat’s participation is essential to providing reporters with the breathing room they need to publish all information available to them in such a controversial situation.   Feel free to let us know what you think.

Capitolbeat 2010 in Phoenix

June 7, 2010

What: Capitolbeat, the Association of Capitol Reporters and Editors, annual conference
When: Thursday, Nov. 11 through Saturday Nov. 13
Where: Wyndham Phoenix (50 East Adams Street)

There are still a few details that we’re tying to work out before opening registration. But aside from the fact that it will fabulous as always, here’s what we can tell you about Capitolbeat 2010 in Phoenix:

  • Arizona’s new immigration law will be front-and-center for at least one session, and probably more. What better place to study the debate over states’ role in immigration than at ground-zero of one of the more talked about laws in the country?
  • We’ll look ahead to the reporting of the census results, all the new data it will bring and the redistricting chore state legislatures now face.
  • The new health care reform law and other places where federal law will have a great deal of impact on states will be top of mind for at least one panel. As many statehouse reporters are finding out, they have to follow the action in Congress as well as their own capitol in order to keep a handle on state budgets.
  • We will pick through the aftermath of the 2010 midterm elections and try to divine what it all means for state government.
  • More policy panels, hands-on technical panels and writing tips will also be on tap.

Check back in this summer as we roll out the schedule.

If you have questions, please e-mail Conference Chairman Peter Wong:  capitolwong@gmail.com

Update from Tennessee

May 17, 2010

We’re happy to report tonight that, according to TN Report’s Andrea Zelinski, House Speaker Kent Williams will NOT support a measure seeking to revoke the floor credentials of AP reporter and TN Capitol Press Corps President Erik Schelzig. For background, see our earlier post on the story.

Update: Zelinski also reports Rep. Joe Towns has withdrawn his resolution, HR 371.

Thank you, Mr. Speaker. We appreciate it.

– Laura