INDOWEBLINKS
Bloggers As Journalists
Reporters' Privilege
The Bloggers' FAQ on the Reporter's Privilege is useful to bloggers who report news gathered from confidential sources.
Are bloggers journalists?
Sometimes. While this question is often asked in the mainstream media and on blogs, it does not frame the debate very well. You can use blogging software for journalism, and many bloggers do. But you can also use blogging software for other purposes. What makes a journalist a journalist is whether she is gathering news for dissemination to the public, not the method or medium she uses to publish. So the better way to frame the debate is: Can journalists blog?
Can journalists blog?
Of course! If you are engaged in journalism, your chosen medium of expression should not make a difference. The freedom of the press applies to every sort of publication that affords a vehicle of information and opinion, whether online or offline.
Why do we care whether someone is a "journalist"?
Some states have laws that specifically protect the speech and privacy rights of journalists. These can include reporter's shield laws and retraction statutes, fee waivers for Freedom on Information Act requests, even campaign finance laws.
What is the constitutional reporter's privilege?
Almost all the federal and state courts have found that state and federal constitutions provide a qualified privilege to allow journalists to keep private the names of their confidential sources and the unpublished information provided by the sources. This protects the anonymity of news sources and thus helps encourage the free flow of information.
How is the constitutional reporter's privilege qualified?
Courts have set forth a multi-factor balancing test for deciding the applicability of the constitutional reporter's privilege. Generally, the subpoenaing party must show that the material is unavailable despite exhaustion of all reasonable alternative sources, that there is a compelling and overriding interest in obtaining the information, and that it is clearly relevant to an important issue in the case. In the ordinary civil case, the privilege will prevent discovery.
Some courts have placed more severe restrictions on this First Amendment right in certain circumstances, such as criminal cases. The Reporter's Committee for Freedom of the Press has an excellent compendium of the reporter's privilege laws in every jurisdiction.
How do courts determine whether the constitutional reporter's privilege applies?
Courts use a test to determine whether someone invoking the reporter's privilege has the right to do it. A test used by many federal courts is whether that person intended to disseminate information to the public, and whether that intent existed at the inception of the newsgathering process (where "newsgathering process" can mean seeking, collecting, or receiving information from a source). Under this test, courts have provided the privilege to non-traditional journalists, including book authors and documentary filmmakers.
What is a state reporter's shield law?
More than 30 states have elected to provide protection for journalists over and above the protection afforded by the constitutional reporter's privilege. For example, through an initiative the people of California included a reporter's shield in the California Constitution. This shield provides "absolute protection to nonparty journalists in civil litigation from being compelled to disclose unpublished information." It may be "overcome only by a countervailing federal constitutional right." The California reporter's shield protects all persons "connected with...a newspaper, magazines, or other periodical publication," without limitation.
Is protecting journalists' sources important to the freedom of the press?
Yes. As the California Supreme Court acknowledged, "The press' function as a vital source of information is weakened whenever the ability of journalists to gather news is impaired. Compelling a reporter to disclose the identity of a source may significantly interfere with this news gathering ability; journalists frequently depend on informants to gather news, and confidentiality is often essential to establishing a relationship with an informant." (Mitchell v. Superior Court)
Where can I get more information on the reporter's privilege in my states?
The Reporter's Committee for Freedom of the Press has an excellent compendium of the reporter's privilege laws in every jurisdiction.
Media Access
The Bloggers' FAQ on Media Access can help bloggers who need to get access to public records and government meetings, as well as secure press passes to help with newsgathering.
Does the First Amendment provide a right to gather news?
Yes. Because the right to publish news necessarily depends on the ability to gather information, restrictions on your right to gather news raise First Amendment concerns. However, some courts have found that news media have no constitutional right of access to places where the general public is excluded. If a government official denies you access to a public place (such as a city street, a public park, the county courthouse, or a jail), contact an attorney — you may have a claim against the government.
Can bloggers get press passes?
Yes. Some government agencies have established procedures for obtaining press credentials (a means of identifying yourself as a journalist). Government agencies are prohibited from deciding arbitrarily whether you are entitled to a press credential, and are required to publish the standards used. See, e.g. the State Department Press Credential Standards. For example, a federal court determined that Consumer Reports was unconstitutionally denied access to the Congressional press gallery based on "arbitrary and unnecessary regulations with a view to excluding from news sources representatives of publications whose ownership or ideas they consider objectionable."
An online journalist seeking access to the Congressional press gallery was initially denied access because he was not a full-time journalist, and not working on salary for a for-profit organization. However, the Periodical Correspondents' Association, which determines access, subsequently adopted broader regulations that allowed for online journalists.
Can bloggers get access to courts for newsgathering?
Yes. Most states allow public access to courts, allowing the press (whether or not they're writing for an online publication) the same right of access as the public. For more information, see the First Amendment Project's guide to court access. Some courts provide their own guides: for example, see the US Federal Court's Guide for Journalists and California Courts' Online Press Center.
Can bloggers get access to public meetings for newsgathering?
Yes. Many states generally require meetings of public bodies to be open and public. This includes meetings by county and city agencies, school districts, agency boards, commissions, committees, and the like. Under limited circumstances, the agency can conduct a closed meeting (such as for addressing certain personnel issues). For more information, see the RCFP's compendium of state-by-state open meetings laws.
Can bloggers get access to public records?
Yes. Through the Freedom of Information Act (FOIA), anyone can seek access to public records held by federal agencies. Members of the news media are entitled to a fee waiver. The definition of news media has been interpreted broadly, and we believe that a blogger who is gathering news for a public blog should qualify. For more information, see the Bloggers' FAQ on the Freedom of Information Act.
States also have public records laws. For example, the California Public Records Act provides access to public records held by state and local agencies. For more information, see the First Amendment Project's Guide to the California Public Records Act.
I'm a podcaster — can I record my interviews?
Yes — but you may need to get consent from the people you interview. Many states require all parties to consent for recording audio. Some states also prohibit hidden cameras. See the RCFP's Tape-Recording Laws at a Glance.
FOIA
What is the Freedom of Information Act?
The Freedom of Information Act (FOIA) is a federal law that gives people the right to request information kept by federal government agencies.
The law also requires agencies to make certain information automatically available to the public in online "reading rooms." This includes regulations, general policy statements, staff instructions, final opinions, and other records that affect members of the public. Furthermore, the FOIA says that information that is or is likely to be frequently requested should be automatically published on the Internet. You can check an office's reading room, which should be accessible from the office's website, to see if the records you are seeking are available online. The U.S. Department of Justice maintains a list of links to federal offices' reading rooms.
You can read the text of the FOIA here.
Who can make requests under the FOIA?
Anyone.
Does the entire federal government have to turn over information under the FOIA?
No. The law applies only to federal agencies, departments, regulatory commissions, federal corporations and other executive branch offices, as well as private contractors maintaining records on behalf of these entities. The President, Congress, federal courts, and private companies are generally not subject to FOIA, though some White House offices are covered by the law. If you're still unsure whether a government office is covered by the FOIA, check the web site of that office. The U.S. Department of Justice maintains a list of links to covered offices, though it may not be comprehensive.
Does FOIA cover state and local governments?
State and local governments are not subject to the FOIA. However, all 50 states and Washington, D.C. have enacted open records laws similar to the FOIA. A comprehensive breakdown of state FOI laws is available in the Reporters Committee for Freedom of the Press Open Government Guide. For more information, visit the individual state or local government's web site.
What kind of information can I get through the FOIA?
The FOIA says that any agency records must be turned over to a requester unless they fall within one of several narrow categories of information that don't have to be disclosed.
These categories include:
- classified information that would damage national security
- internal information involving personnel rules and agency practices
- material specifically shielded from disclosure by another law
- confidential commercial or financial data, like trade secrets
- records that would be privileged in litigation
- information that would invade someone's privacy
- law enforcement records
- information related to government regulation of financial institutions
- certain geological/geographical data
Can I get electronic records through the FOIA?
Yes. You can get many different types of records in response to a FOIA request, including documents, emails, photographs, and sound or visual recordings.
How do I know what to ask for?
News articles, government reports, press releases, and Congressional hearings are good starting points for thinking up FOIA request ideas.
For example, EFF successfully used FOIA to obtain records showing that U.S. Attorney General Alberto Gonzales had been aware of chronic problems with the FBI's use of National Security Letters (NSLs) to collect Americans' personal information before he testified that "[t]here has not been one verified case of civil liberties abuse" as a result of the Patriot Act. The records were the products of an EFF request for documents relating to a Justice Department report on the FBI's use of NSLs. When the FBI did not comply with the request, EFF sued under FOIA, prompting the judge to order the FBI to turn over the records.
How do I make a FOIA request?
You can make a FOIA request by mailing or faxing a letter to the agency. You may also be able to submit your request by email. Check the agency's web site for information about how and where to send requests.
Your FOIA request should include:
- Your name and contact information, including both your preferred method of contact and your preferred records medium (i.e., paper through standard mail, electronic files via email, electronic files via CD, etc.).
- A description of the record(s) you are seeking. The only requirement is that you "reasonably describe" the records. Basically, this means that you must give enough information that a record-keeper would be able to find the records without an undue amount of searching.
- The maximum records/reproduction fee you are willing to pay. You should indicate that you want to be contacted beforehand if the fees are going to exceed this amount.
Are there any step-by-step guides for writing and submitting FOIA requests?
Yes. Reporters Committee for Freedom of the Press has published a guide called How To Use the Federal FOI Act, and also has a FOI Letter Generator. The National Security Archive also has helpful guidance for FOIA requesters.
Can I ask for government records about myself under the FOIA?
Yes. You can also ask for this kind of information under the Privacy Act of 1974 if you are an American citizen or permanent legal resident.
How much does it cost to make a FOIA request?
It depends. The law allows agencies to charge fees to search for, review and duplicate records for commercial requesters. Other requesters may be required to pay some, but not all, of these fees. Requesters from media, educational, non-commercial or scientific entities have special fee status — they don't have to pay search or review fees, but may have to pay some duplication fees. However, a requester who can show that the disclosure she seeks is in the public interest may pay reduced or no duplication fees.
How long does it take to get information through the FOIA?
It depends on the agency and request. The FOIA generally requires that agencies grant or deny requests within 20 working days. Unfortunately, many agencies don't act on requests within the time required by the law, so it may take much longer to get the records. To get a sense of what an agency's response time might be, take a look at the annual FOIA report on its web site.
Congress recently made an effort to fix this problem by declaring that agencies won't be able to charge search or duplication fees when they fail to comply with the FOIA's time limits for no good reason. These penalties won't take effect until December 31, 2008, though, so it remains to be seen how they will affect processing times for FOIA requests.
To get a sense of what a particular agency's response time has been in recent years, take a look at the annual FOIA report on the agency's web site.
Is there any way I can get the information faster?
The FOIA does allow for "expedited processing," which means an agency must move your FOIA request to the head of the line and process it "as soon as practicable." A journalist or other person who is "primarily engaged in disseminating information" may ask for expedited processing when she can show that her request involves a matter of "compelling need." A requester can also ask for expedited processing when delayed disclosure of information threatens someone's life or physical safety.
Requesters should check the agency's regulations to see if it has any other basis for granting expedited processing. The Department of Justice, for example, also provides for expedited processing if a person will lose substantial due process rights if the records are not processed quickly, or when the request involves "a matter of widespread and exceptional media interest in which there exist possible questions about the government's integrity which affect public confidence."
I'm a blogger who is also a journalist. Do I get special treatment under the FOIA?
Yes. If you are a representative of the news media, you are entitled not to be charged fees for the agency's search or review of records. You may also qualify to have your request processed faster than it otherwise would be if you can show that there's an "urgency to inform the public" about the information you've requested.
What if I'm a blogger but I'm not sure if I qualify as a journalist for FOIA purposes?
The question of whether or when a blogger would qualify as a journalist for FOIA purposes based solely on his or her blog work has not yet been addressed. However, the FOIA makes it clear that alternative media and freelance journalists can qualify as representatives of the news media for fee purposes. If you plan to publish information on your blog based on the records you are seeking, you should note as much in your FOIA request and ask for a fee waiver/reduction. You may or may not succeed, but there's no harm in trying. If you are denied, you may file suit in federal court to challenge the denial.
After I've submitted my request, what if I don't hear anything from the agency?
If you don't get a response from the agency within 20 working days, you can treat it as though the agency denied your request, and you may either file an administrative appeal or seek judicial relief in court. If you file an administrative appeal and the agency doesn't respond to it within 20 working days, you again have the right to file suit.
What if the agency doesn't give me the information I asked for?
If the agency denies your request, you can appeal the decision. If your appeal is also denied, you have the right to file suit.
What if the agency denies my request for expedited processing or doesn't respond to it?
If the agency doesn't grant expedited processing, you have no obligation to appeal and may file suit immediately on the issue of your right to expedition.
If I file a lawsuit to force the agency to give me expedited processing and/or the records I requested, can I get attorneys fees?
If your lawsuit has merit and causes an agency to reverse the position it has taken on your request — even if a judge doesn't rule that the agency was wrong — you may be entitled to recover attorneys fees.
SsBLOGGER
INDOWEBLINKS
E-mail: egkblogger@gmail.com/
SOURCE :
The Electronic Frontier Foundation
Posting: 21/12/2010
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