First Amendment and open government news
Vol. 15, No. 3, January 29, 2005
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COMMENTARY
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A proposal for enacting federal protection for reporters' confidential sources: Combine Senator Dodd's Shield Law bill with the Administration's tort reform bill.
By Peter Scheer
(CFAC 1/29/05) -- Some time over the next few months, prominent journalists at the New York Times and Time magazine are likely to go to jail for their refusal to comply with federal court subpoenas ordering them to name confidential news sources.
The federal court of appeals for the District of Columbia, which heard arguments in their cases in December, will issue a decison rejecting their first amendment arguments-of this you can be sure, since the Supreme Court resolved this issue against the press in 1976. Neither the court of appeals nor the Supreme Court will have any basis for further delaying the contempt judgments, and the reporters will go to jail.
That sobering prospect has motivated Senator Chris Dodd (D-Conn.) to introduce in Congress a bill to create a federal "Shield Law," similar to California's shield law protecting journalists' sources in state court proceedings. While a shield law at the federal level is the right solution, there is, regrettably, virtually no support for Dodd's bill beyond a handful of liberal Democrats and the media themselves.
But that does not mean necessarily that a federal shield law is doomed. It could be enacted this year, not as a stand-alone bill with marginal support, but as part of a broader legislative measure facing formidable opposition. That would be the Bush administration's tort reform initiative.
Bush has made tort reform one of the top domestic priorities of his second term. But even a reelected president with a headwind of popular support faces massive resistance to tort reform from well-organized and well-financed plaintiff's lawyers who have succeeded in defeating major tort reform many times over the last 20 years.
The odds favor the plaintiff's lawyers again this year-unless the political calculus for tort reform changes in some way. And that's where a proposed federal Shield law comes in. By incorporating protection for journalists' confidential sources into the administration's tort reform legislation, the political prospects for both measures improve greatly.
This is the singular, best hope for preserving the public's access to news stories that can only be written with promises of confidentiality to an unnamed source on the "inside"-whether inside a government agency, a large private corporation, or the mafia.
It can be achieved as part of a compromise that combines tort reform and protection of confidential sources. As with all compromises, each side must be willing to surrender its ideological purity. Conservative Republicans will have to swallow provisions designed to help the liberal media, and the liberal media will have to swallow legal reforms championed by pro-business chambers of commerce.
The choice should be easy for journalists and others who care about the public's right to know. Please write your representatives in Congress.
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FIRST AMENDMENT AND OPEN GOVERNMENT NEWS
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East Bay News Service sends "cure and correct" letter to Oakland City Council
(CFAC 1/29/05) -- East Bay News Service recently sent the Oakland City Council a cure and correct letter regarding the Council's closed session decision to award City Clerk Ceda Floyd in excess of $40,000 upon her resignation.
During the closed session on Dec. 21 of last year, the Council voted 7-to-1 to accept the resignation of Floyd and agreed to pay her three-and-a-half-months' salary as severance.
The decision violated the Ralph M. Brown Open Meetings Law as well as the Oakland Sunshine Ordinance, East Bay News Service claimed.
The action was "the culmination of a discussion in closed session of a matter which the Act does not permit to be discussed in closed session; namely, compensation paid to unrepresented employees," said East Bay News Service.
The letter also stated there was no adequate prior notice to the public on the agenda for the meeting.
The Council's agenda listed an item regarding the "release and/or discipline" of one unnamed employee. If Floyd resigned and was not released, then the Brown Act and the Oakland Sunshine Ordinance do not permit the Council to discuss severance pay for resigning employees, alledged East Bay News Service.
East Bay News Service requested that the Council withdraw its closed session on Dec. 21 and its pledge to pay Floyd as well as disclose why individual members of the legislative body voted as they did.
In addition, East Bay News Service demanded that there be re-notice of the issue on an open session of the Council with a posted agenda on or before Feb. 20, 2005. --EB
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Don't forget to say that CFAC sent you!
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CFAC HOTLINE Q & A
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The Hotline is CFAC's online legal information service. Questions from reporters, government officials, civic activists and the occasional crackpot are answered by media law specialists Roger Myers, Brooke Beros, Isela Castaneda, James Chadwick, Ed Davis, Katherine Keating, Joshua Koltun , Diana Ng Fung, and Danielle Van Wert at the national law firm of DLA Piper Rudnick Gray Cary, CFAC's general counsel.
City deleting unread e-mails
Q: I sent two emails to the Mayor of my city concerning official business
and the mayor deleted them without reading them. Then, an email I sent
to the City Manager about 30 days ago, more or less, was deleted unread,
as the city's office email program deletes emails after 30 days.
Is it proper or legal for a city to delete emails without reading them?
Seems to me it would just be like throwing away a public document that
was mailed in.
A: Your inquiry raises two separate issues: (1) whether there is any requirement
for the Mayor or City Manager to read emails submitted by members of the
public; and (2) whether such emails may be deleted.
As to the first issue, I am not aware of any laws that would mandate that
a mayor or city manager actually read an incoming email. As to the second
issue, the general rules regarding the destruction of city records are
contained in Government Code section 34090 et seq, the text of which can
be found at the link below.
http://caselaw.lp.findlaw.com/cacodes/gov/34090-34093.html
There may be other local ordinances that may apply to the retention of
emails. One issue in your case is whether a copy of the emails at issue
was somehow preserved on the City's computer system.
I hope this information is helpful.
Advisory committee subject to Brown Act?
Q: If the Bay Area Air Quality Management District appoints an advisory committee to oversee an air toxics program that will go on for 2-3 years, and it has no members from the Board of Directors (only staff, public citizens), are their meetings subject to the Brown Act? If so, do all the notice, public comment rules apply?
A: Assuming that the "advisory committee" were created by a "charter, ordinance, resolution or formal action of a legislative body," which here I take to be the Board of the BAQMD, then meetings of the advisory committee would appear to be covered, per Gov. Code 54952(b). There is an exception for "advisory committees made up of members of the [Board], so long as they are not standing committees, but that exception would not be applicable.
Hope that is helpful.
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CFAC IN THE NEWS
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If you have suggestions for items to be included in CFAC's weekly Flash,
please e-mail them to Peter Scheer