SMAD 450 Exam 4

FOIA History

- Congress adopted the Freedom of Information Act in 1966

- Agencies covered include departments, regulatory agencies, government corporations, or other establishments of the executive branch

- Any person may submit a request under FOIA

- Does NOT cover the President, their cabinet, Congress, federal courts, or public corporations

- Documents covered under FOIA must function as records and be copied

FOIA Procedure

- Place an informal call to relevant FOIA officer

- File a formal, written request for the information knowing the agency must respond within 20 working days

- Burden to turn over the documents is now on the agency. It must apply a reason why it will not turn over the records

- If denied access, you have 90 days to appeal to the agency head who has 20 working days to respond to your appeal and the agency may receive an additional 10 working days

- If access is again denied, you may appeal to the federal district court nearest you for a ruling on the access

- Fees can be charged for searches, but they may be waived if the request is in the public interest

- If you lose, you could be charged for court fees

Glomar response

Agency says it can't confirm or deny the existence of information

Vaughn index

in denying information, an agency must:

1. Identify each document that was withheld and

2. Say how the release of information would harm the interest of the exemption

Redact

to edit or black out information in a document

Virtual representation

a doctrine where a non-party may be bound to the judgment in a previous case if certain factors are met

Qui tam

primarily involving government whistleblowers where a private person brings a case on the government's behalf and person could recover some of the damages sought

Exemptions

National security

Agency rules and practices

Statutory

Confidential business info

Agency memoranda

Personnel, medical, and similar files

Law enforcement investigations

Banking reports

Information about wells

National Security exemption

Information that could damage national defense or foreign policy

Agency rules and practices exemption

Documents related solely to internal personnel rules and practices

Statutory exemption

Applies to documents that Congress has declared in other statutes to be confidential ("catch-all")

Confidential business information exemption

Protects trade secrets and commercial or financial information that businesses submit to government agencies

Agency memoranda exemption

exempts working documents circulated within agencies

Personnel, medical, and similar files exemption

Such information would invade an individual's privacy

Law enforcement investigations exemption

prevents access to ongoing investigations

Banking reports exemption

protects financial reports and audit information

Information about wells exemption

protects geological and geophysical information

Problems with FOIA

- High court costs associated with getting information from the government

- Legally sanctioned removal of information: redacting

- Certain agencies (CIA/FBI) have made concerted efforts to weaken FOIA

- Glamorization of data

- Computerization of information has led to higher fees for access to information that was once free

Problems with FOILS (Freedom of Information Laws at the State Level)

- State agencies are not required to create/acquire records in response to a request

- Few states require agencies to produce record index

- Some states require that requesters be state residents

- Many states have exemptions similar to those of FOIA

- Most states open-record laws cover electronic and computer stored records, but some do not require records to be user friendly

- Some state open-record laws cover legislature, executive branch, and courts

- Some states do not specify response time limits

- Some states do not specify penalties for agencies violating the law

Federal Sunshine Act

- Legislation was passed in 1976 and calls for federal agencies to meet in public

- This act pertains to the same agencies that are subject to FOIA

- This act has 10 exceptions which would allow "closed sessions". Exemptions 1-9 are similar to those in FOIA. Exemption 10 applies to portions addressing agency litigation/arbitration

Reporter's Options to Illegal Closed Meetings

- You may file suit to prevent a closed meeting in federal district court

- You may file suit to stop future closed meetings

- You may sue for a copy of the transcript of the closed meeting, if suit is filed within 60 days of closed meeting

- May sue agency, but not the individuals involved in the individual meeting

1974 Privacy Act

establishes a code of information practices that governs the collection, maintenance, use, and dissemination of information about individuals that is maintained in systems of records by federal agencies

Campus Security and Campus Crime Statistics Act of 1990 (The Clery Act)

Notification of student crimes on campus

Health Insurance Portability and Accountability Act (HIPAA)

Prevents health professionals and institutions from revealing individuals' personal medical information

Driver's Privacy Protection Act of 1994 (DPPA)

A federal law that prohibits states from "knowing disclosure" of information obtained from the Department of Motor Vehicle records without permission except under specific circumstances

Zemel v. Rusk (1964)

The USSC ruled that the right to publish does not carry with it the unrestrained right to gather information

EPA v. Mink (1973)

The USSC rejected Patsy Mink's request for access to classified documents used to decide the issue of nuclear testing in Alaska. This decision motivated Congress to amend FOIA to allow court review of classified documents, e.g., "in camera"

U.S. v. Nixon (1974)

The USSC ruled that executive privilege can be asserted only when the material in question consists of military or diplomatic secrets

Department of the Air Force v. Rose (1976)

The USSC declared that the personal privacy exemption should not be read as an absolute barrier against disclosure of information

Chrysler Corp. v. Brown (1979)

The USSC declared that an official may release information covered by one of the exemptions specified in FOIA. The "catch-all" exemption must be followed.

Kissinger v. Reporters Committee for Freedom of the Press (1980)

The term "agency" does not apply to the Library of Congress. This means that FOIA does not apply to this institution

Forsham v. Harris (1980)

The USSC held that FOIA cannot be used to compel a federal agency to obtain data from a private contractor if the agency does not want to

Consumer Product Safety Commission v. GTE (1980)

USSC upheld the 'catch-all' exemption

Federal Bureau of Investigation v. Abramson (1982)

The USSC held that law enforcement information does not lose its protection when summarized or reproduced for another reason

Pell v. Procunier (1974)

The USSC held that members of the media have no constitutional right of access to prisons or their inmates beyond that afforded the general public

Houchins v. KQED (1978)

The USSC extended the Pell decision by limiting the access of the press in jailhouses

Protection of a Confidential Source

- 1st Amendment

- State shield laws

- Common law (state and federal)

3 bodies that can grant contempt charges

1. The courts

2. Grand juries

3. Congress and Congressional Committees

Garland v. Torre (1958)

Journalist must reveal his/her source if the government or plaintiff can meet the "3 part test"

Garland v. Torre 3 part test

1. If the need of the information goes to the "heart of the matter"

2. If alternative sources have been exhausted

3. If there is probable cause to believe that the journalist has information that is relevant to the plaintiff's claim

Branzburg v. Hayes (1972)

The USSC determined that journalists, just like members of the public, have no First Amendment right to refuse to testify before a grand jury. In dissent, Justice Stewart stated the plaintiff must prove:

1. Probable cause that a journalist has "clearly relevant" information

2. The information sought cannot be obtained by alternative means less destructive of First Amendment values

3. A compelling and overriding interest in the information

In re Farber (1978)

Judges require journalists to turn over notes or names of sources to protect significant social interests such as the Sixth Amendment right of criminal defendants to obtain evidence in their favor and confront witnesses against them

Civil Proceedings: Herbert v. Lando (1979)

The journalist's "state of mind" could be questioned and information could be required to be turned over

Baker v. F & F Investment (1973)

The Second Circuit ruled that the source did not have to be revealed because the three-part test of Justice Stewart had not been met. Other sources had not been exhausted

State Shield Laws

- no such thing as federal shield laws

- 32 states have shield laws (OH, MD, TN, NJ, NY)

- Need to consider the following:

1. Courts interpretation of the statute;

2. Who does it protect;

3. Is confidentiality required for protection;

4. What kind of information is protected;

5. Can the privilege be waived;

6. Are exceptions to privilege specified;

7. Is publication required;

8. Status of publication;

9. Is the coverage only applicable to newsgathering activity;

10. Does privilege apply sometimes to grand jury, government (state or local)?

Farr v. Superior Court of California (1971)

California shield law was ignored. The journalist had information about a certain crime and was asked to reveal that information. Farr spent 46 days in jail

Shield law

a law that protects a reporter from revealing his or her sources

Brown v. Commonwealth (1974)

The court ruled that the plaintiff had to prove that the information sought goes to the heart of the matter

Riley v. Chester (1979)

The third circuit applied rule 501 of Federal Rules of Evidence to protection of confidential sources, "All privileges shall be governed by the principles of the common law as they may be interpreted by the courts... in light of reason & experience"

Zurcher v. Stanford Daily (1978)

The USSC held that law enforcement agencies could use a search warrant to search newsrooms for evidence

Press Privacy Protection Act of 1980

Press Privacy Protection Act of 1980

Law enforcement must meet a burden of proof before a search warrant can be issued. A subpoena should be issued first

Minneapolis Star and Tribune v. U.S. (1989)

The DC circuit ruled in favor of the media and required the FBI to pay damages and attorney fees

Cohen v. Cowles Media Co. (1991)

The USSC ruled that Minnesota's promissory estoppel common law was not in violation of the First Amendment. Consequently, reporters need to be careful about what is promised to news sources

Basic Conflict (1st v. 6th Amendment)

First Amendment calls for a free press

Sixth Amendment calls for a fair, impartial jury

Potential Prejudicial Pre-Trial Publicity

- Confessions

- Prior criminal records

- Results of lie detector tests, blood tests, ballistics tests, and other investigatory procedures

- Character flaws or lifestyle

- Potential witnesses, testimony or evidence

- Speculation by officials

- Other sensational or inflammatory statements

Remedies for Prejudicial Publicity

Change of venue

Change of venire (jury pool)

Continuance (delay the trial until publicity dies off)

Severance (when there are multiple individuals that are charged with criminal activity and one has more of a crime background, severance is requested to avoid the one with the lesser crime background to be punished for the other's background)

Voir Dire (question potential jurors to uncover bias)

Sequestration (lock up the jury and prevent them from watching anything regarding a case or talking to anyone)

Judicial Admonition (the judge inspects the jurors and tells them not to watch anything regarding the trial or talk to people about it)

New Trial

Challenge for cause

An attorney's attempt to remove a potential juror for a reason the law finds sufficient (prejudice relevant to the case)

Unlimited

Peremptory Challenge

- Challenge which may be made without any reason or cause

- Determine by state law as to how many of these an attorney may have

Irwin v. Dowd (1961)

The USSC stated that statements by jurors could be given little weight when so many jurors admitted to prejudice against the defendant so many times

Rideau v. Louisiana (1963)

The USSC declared that the televised confession in a very real sense was Rideau's trial and further court proceedings would be pointless

Sheppard v. Maxwell (1963)

The USSC stressed that judges must ensure a dignified atmosphere in the court, including control over the behavior of journalists

Murphy v. Florida (1975)

The USSC held that members of the jury need not be totally ignorant of the facts and issues of a case. Justice Marshall went on to say that a mere familiarity with a defendant did not equal a predisposition against them

Prior restraints on media

- Gag orders on media

- Gag orders on news sources

3 things a court must consider before issuing a gag order on the media

1. Quantity and content of media coverage

2. Potential effectiveness of alternatives to a gag order

3. The likelihood that a gag order would remedy the harmful publicity

Types of gag orders

1. Everything you hear in court, you cannot write about (media)

2. Witnesses, jurors, etc. cannot talk about the case (news sources)

Nebraska Press Association v. Stuart (1976)

The USSC ruled that gag orders on the media are a prior restraint and should only be used after less restrictive alternative methods are used

Federated Publications v. Swedburg (1981)

The state supreme court ruled that Judge Swedburg's order was not a prior restraint because no punishment was associated with lack of compliance

Landmark Communications, Inc. v. Virginia (1978)

The USSC held that accurate reporting of the conduct of public officials falls under the protection of the First Amendment

Smith v. Daily Mail Publishing Co. (1979)

The USSC ruled that a WV statute was overbroad because it singled out only newspapers for punishment

- Court did say that a state can punish the media for truthful information to further a state's need of the highest order

ABA's Canon 35

called for a ban on cameras and the broadcasts of trial

ABA's Rule 3 A (7)

modified the original ban to include cameras when an appellate court rules they will not distract trial participants

Cameras in the courtroom

- 11 states allow cameras, but judges may impose restrictions

- 37 states and DC allow some access (VA included)

- 1 state currently has no rules that address whether cameras are allowed

- 2 states no access

Federal Rule of Criminal Procedure 53

prohibits cameras in federal criminal courts

Federal policy on cameras

bans televised civil proceedings

State of New Jersey v. Bruno Hauptmann (1935)

The media coverage outside the courtroom motivated the ABA to establish Canon 35

Estes v. Texas (1965)

Justice Clark declared that cameras in the courtroom would adversely impact jurors, defendants, attorneys, and the judge

Chandler v. Florida (1981)

The USSC ruled the presence of cameras in the courtroom does not automatically jeopardize a defendant's right to a fair trial

- A defendant must prove the harm that the cameras will cause

- Motivated ABA to amend canon 35 to Canon 3 A (7)

Nixon v. Warner Communications (1978)

The USSC ruled the record company did not have a right of access to all the records in their custody, particularly when the records are available through alternative means

Gannett v. DePasquale (1979)

The USSC declared that the press and the public do not have a constitutional right to attend pretrial hearings

Richmond Newspapers, Inc. v. Virginia (1980)

The USSC held that the public and the media have a First Amendment right to attend trials, which are presumptively open unless the state can document an overriding interest in closure.

Globe Newspaper v. Superior Court, County of Norfolk (1982)

The USSC ruled that a court should not be closed unless the state can present a compelling state interest and that is narrowly tailored

Press Enterprise I v. Riverside County Superior Court (1984)

The USSC declared the press had a right of access to a transcript of a preliminary hearing so long as it doesn't invade or potentially invade the privacy of jurors' voir dire information

Press Enterprise II v. Riverside County Superior Court (1986)

The USSC claimed defendants must provide specific evidence that an open courtroom would present a "substantial probability" of endangering their rights to a fair trial

Types of contempt

Civil, Criminal, Indirect, Direct

Civil contempt

to get someone to do something

Criminal contempt

punishes disrespect for the court

Direct contempt

in the courtroom that disrupts the legal process

Indirect contempt

an act outside the courtroom that disrespects the court (unconstitutional today)

Bridges v. California (1941)

The USSC ruled that punishment for criticism of pending court cases can occur only if there is an extremely serious evil imminent

Pennekamp v. Florida (1946)

The USSC held that editorials that contain inaccurate information did not pose a clear and present danger to the administration of justice

Craig v. Harney (1947)

The USSC ruled contempt powers should not be used to punish the media for what they communicate unless there is no doubt that the utterances in question are a serious and imminent threat to the administration of justice

Dickinson v. U.S. (1973)

U.S. Court of Appeals for the Fifth Circuit declared that an injunction must be obeyed, regardless of the ultimate validity of the court order (Collateral Bar Rule)

Deceptive Advertisements

- One that is likely to mislead

- One that could deceive a reasonable consumer

- One that contains a material statement or an omission that deceives

Collateral Bar Rule

A rule that bars someone who violates a court order from trying to defend this action by arguing that the court order was unconstitutional

Printers' Ink Statutes

-Found in 47 states

-Most make false advertising a misdemeanor

Self-Regulation

- National Advertising Division

- National Advertising Review Board

- National Association of Broadcasters' Television Code: no longer exists and ruled in violation of Sherman Antitrust Legislation

Federal Advertising Agencies

- Federal Trade Commission

- Food and Drug Administration

- Federal Communication Commission

- Federal Election Commission

- Securities and Exchange Commission

- Alcohol and Tobacco Tax Division of the Internal Revenue Service

Federal Actions

- Staff Opinion Letters

- Advisory Opinions

- Industry Guides

- Trade Regulation Rules

- Consent Decrees

- Cease-and-Desist Orders

- Injunctions

- Corrective Advertising

Lotteries

- Need a prize

- Need an element of chance

- Need a consideration

FTC v. Raladam (1931)

This decision motivated Congress to pass the Wheeler-Lea Amendment in 1938 to empower the FTC to act against all unfair and deceptive practices in commerce