Ch 9 Mass Media Law

Which of the following statements best reflects the First Amendment's role in guaranteeing access to government information?

Access rights primarily created through

FOIA (federal records)

Government in the Sunshine Act (federal meetings)

State open records / meetings laws

Houchins v. KQED (1978)

TV station requested greater media access to a county jail; no First Amendment right of access; access must be created by legislative action, not judicial interpretation

Branzburg v. Hayes (1972)

Reporters refused to testify before grand juries about confidential sources; press and public stand on the same footing; rights must come from statutes or court rules, not the Constitution

The first amendment does not equal

access rights

Democratic accountability requires access to

information

"Knowledge will forever govern ignorance..."

James Madison

FOIA does not apply to

Congress

Federal courts

White House Office (advisory functions)

CPB, Amtrak (special exemptions)

FOIA applies to

Executive branch agencies and regulatory bodies

the FOIA covers

agency records, regardless of format

under the FOIA, agencies must respond within

20 business days

1966

FOIA enacted

First federal access statute; presumption of disclosure

1974

post-watergate amendments

strengthened access, reduced secrecy

1996

E-FOIA

required electronic records & reading rooms

2007

Open Government Act

Expanded deadlines, fees (adding freelancers/alternative media, created FOIA Ombudsman)

2016

FOIA Improvement Act

"Foreseeable harm" standard (overuse of exemptions)

2025

FOIA Reform Act

New Coverage, modernization push (adding contractors, hybrid entities)

Requesters can specify format, and agencies must comply if

the request is reasonable

redactions

must be indicated in-line

glomar response

agency says it can't confirm or deny existence of information

agencies increasingly use

portals, but delays persist

National Security exemption

Protects properly classified national defense or foreign policy info

Prevent disclosure of sensitive intelligence

CIA v. Sims (1985)

Internal Personnel Rules exemption

Covers trivial internal agency housekeeping matters

Avoid burdening agencies with non-public-interest disclosures

Dep't of Air Force v. Rose (1976)

Information Exempted by Statute

Applies when another federal law expressly prohibits disclosure

Integrates secrecy provisions in other statutes

Tax Code; Intelligence Identities Act (1947)

Trade Secrets / Commercial exemptions

Shields business information submitted to government

Protect competitive and proprietary data

Food Mktg. Inst. v. Argus Leader (2019)

Inter- & Intra- Agency Memos exemption

Protects deliberative process, attorney work product, privileged communication

Encourages candid internal discussion

NLRB v. Sears (1975)

Personal Privacy exemption

Protects personal, medical, and similar files

Prevents unwarranted invasions of privacy

Dep't of State v. Ray (1991)

Law Enforcement Records exemption

Safeguards info that could harm investigations or endanger individuals

Protects methods, sources, safety

FBI v. Abramson (1982)

Financial Institutions exemption

Covers protection of required candor of financial regulatory reports and related information

Maintains stability and confidentiality of financial system

Bank exam reports

Geological / Geophysical exemptions

Shields geological data, including well information

Prevents competitive harm and resource exploitation

(rarely litigated)

some records are not subject to the FOIA

ex. kissinger diaries, contractor records

Forsham v. Harris (1980):

HEW-sponsored medical study raw data held by private grantee ≠ agency record

Agency circumvention

Use of personal email, destruction, routing through private actors

Burden on requester in order to

litigate

FOIA limitation: No discovery

FOIA is the exclusive remedy

FOIA sometimes fails despite the

presumption of openness

fee categories FOIA

commercial / news media / educational / all others

FOIA fee waver

for public interest, first 100 pages are free

appeals and litigation process

Administrative appeal → U.S. District Court → FOIA Ombudsman mediation

Resources for using the FOIA effectively

RCFP Guides, MuckRock, FOIA Machine

RCFP Guides (rcfp.org) (Reporter's Committee for Freedom of the Press)

nonprofit legal organization that provides free legal resources for journalists

MuckRock (muckrock.com)

nonprofit online platform that helps users file, track, and publish FOIA requests to federal, state, and local agencies

FOIA Machine (foiamachine.org)

free, open-source online tool developed by the Center for Investigative Reporting and others to help journalists file and manage FOIA requests.

(Baltimore Sun Co. v. Ehrlich, 437 F.3d 410 (4th Cir. 2006)

No general right to interview public officials

Citicasters Co. v. McWherter, 59 F.3d 273 (6th Cir. 1996)

press cannot compel interviews (prison inmates)

MacIver Institute for Public Policy v. Evers (7th Cir. 2020)

In contrast to Baltimore Sun and Citicasters, government may regulate press access using neutral,reasonable standards, but cannot exclude media based on viewpoint

Executive Privilege

Implied constitutional doctrine

U.S. v. Nixon (1974): Privilege exists but not absolute; must yield to criminal process

Privacy Act (1974)

Passed after Watergate; govern show federal agencies collect, use, and disclose personal information

Family Educational Rights and Privacy Act (1974)

Also known as the "Buckley Amendment" - protects the privacy of student educational records

Clery Act (1990)

Requires colleges to publish campus crime statistics and issue timely warnings

HIPAA-Health Insurance Portability and Accountability Act (1996)

Establishes privacy standards for health information; key rule issued in 2000

DPPA-Driver's Privacy Protection Act (1994)

Restricts the release and use of personal information from state DMV records

Sunshine Act (1976)

post-watergate, this act requires that most government meetings be conducted in public and that notice of such meetings must be posted advance

the Sunshine Act has this many exemptions

10 exemptions paralleling FOIA (Bonus #10: Agency Litigation/Adjudication: Closed deliberations on pending legal cases or formal adjudication)

the Sunshine Act says that federal agencies must provide

public notice; can close portions under exemptions

weak enforcement of the Sunshine Act

few successful lawsuits

the Sunshine Act is essentially the

FOIA for meetings

Every state has

public records & meetings laws

state open records & meetings laws vary widely in

Coverage (legislature, judiciary)

Exemptions (often broader than FOIA)

Enforcement strength (some have strong AGs, others weak)

there is an increasing emphasis on this in state open records & meetings law

electronic records and metadata

Journalists rely more on (state open records & meetings law / FOIA) for local coverage

state open records & meetings law

In florida, any action taken in violation of the Sunshine Law (1967 is

VOID, and officials may face civil and criminal penalties

Florida had a 1992 constitutional amendment guaranteeing right of

access to public records and meetings

Tennessee School Shooter Writings Case (2023-25; pending before the TN SC)

Courts balancing open records vs. victim privacy & law enforcement

Copyright issues in releasing sensitive documents

State vs. federal conflicts over overlapping jurisdiction

Evolving tension between transparency, privacy, and security

FOIA Reform Act (2025)

Expanded FOIA to cover contractors & hybrid entities, strengthened foreseeable harm

closes contractor loopholes and modernizes

EPIC v. DOGE (2024)

Signaled that courts will interpret FOIA broadly

hybrid public-private agency

DOJ FOIA Report (2024)

questions over federal coordination with social media platforms

Press Freedom Developments (2025)

federal policy debates affecting transparency and media independence

Litigation over funding cuts to public media

New Jersey Legislative Development (2024)

OPRA amendments restricted access, increased exemptions, and limited timeframes

weaken long-standing transparency laws

California Legislative Development (2023-24)

Recodification of Public Records Act

Shows modernization through structural clarity rather than new exemptions (reorganized and clarified existing statutes)

Washington Legislative Development (2024-25)

Legislative transparency litigation

showed tension between branches

Tennessee Legislative Development (2023-25)

Shooter writings litigation

supreme court review of whether or not a manifesto is public record

privacy vs. transparency conflict

Florida Legislative Development

Ongoing model of broad access, narrow exemptions, constitutional guarantee

serves as benchmark for strong state open gov tradition

First Amendment does not create this by itself

an access right

FOIA is the backbone of

federal transparency - but still full of exemptions/delays

Sunshine Act

meetings counterpart

state laws vary, but are often

more relevant to journalists

modern reforms continue to

reshape openness

applies to:

Covers:

Key Limits:

Enforcement: