First Amendment and open government news
Vol. 15, No. 13, June 17, 2005
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COMMENTARY
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Prospects brighten for pro-press Supreme Court decision in Miller-Cooper case involving subpoenas for confidential sources
By Peter Scheer
The Supreme Court will soon decide whether to reconsider, in the case involving New York Times reporter Judith Miller and Time Magazine reporter Charles Cooper, whether journalists can be forced by federal judges to reveal confidential sources. The odds that the Court will both take the case and spare Miller and Cooper their jail sentences are, at this stage, surprisingly good.
What's changed?
In the Supreme Court, the case has been strategically re-positioned. In their briefs requesting Supreme Court review, Miller's lawyer (Floyd Abrams of NY's Cahill, Gordon) and Cooper's lawyer (Miguel Estrada of LA's Gibson, Dunn & Crutcher) have changed the focus of the case from an argument primarily about the First Amendment--specifically, whether the constitution requires recognition of a "reporter's privilege"-- to an argument about rules of evidence in federal courts.
Although the First Amendment claims rejected in the trial court and the appeals court are still asserted, the latest briefs are a subtle invitation to a conservative Supreme Court to view the issue of protecting confidential sources as one requiring, not a landmark reinterpretation of First Amendment limits on federal power, but adjustments to judicial rules that are badly in need of a tune-up. This shift in emphasis is especially clear in Cooper's brief.
Privileges in federal court are governed by a Congressionally-enacted rule of evidence, Rule 501, which, rather than prescribing a complete list of privileges (attorney-client, priest-penitent, etc.), explicitly acknowledges the authority of federal courts, exercising their power to make federal "common law," to adopt new privileges when needed.
In a key 1996 case, Jaffee v. Redmond, the Supreme Court, relying on Rule 501, established the psychotherapist-patient privilege in federal proceedings. Since then, lower federal courts have interpreted Rule 501 as authorizing the spousal privilege, a privilege for settlement discussions, and others.
If Rule 501 gives therapists a privilege to refuse to reveal confidential communications with a patient, it should also give journalists a privilege to refuse to name confidential sources. So goes the argument for a "common law" journalist's privilege--and it is a strong one.
Moreover, the media's position is strengthened by a separate brief filed by the attorneys general of 36 states (including California), all of which have protection for confidential sources in state Shield Laws or court decisions. The AGs point out that their reporter's privileges are undermined by the absence of a federal privilege because neither journalists nor sources can ever know, in advance, whether a demand for testimony will issue from a state or federal court.
Following the lower courts' drubbing of Miller and Cooper's claims, many
First Amendment advocates, myself included, dreaded the prospect of Supreme
Court review of this case, and hoped, despite the obvious hardship facing
the reporters, that the Supreme Court would deny review. Now, however,
there is reason to be optimistic.
You can download
the Supreme Court briefs (petitions for certiorari) on CFAC's
website.
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FIRST AMENDMENT AND OPEN GOVERNMENT NEWS
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Contra
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POWER TO THE PEOPLE: UNLOCKING GOVERNMENT FOR THE PUBLIC, PRESS, AND THE
BLOGS
featuring
FLOYD ABRAMS
a CFAC annual free speech assembly
October 14 and 15
Cal State Fullerton
Details coming soon!
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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, Katherine Keating, Joshua Koltun, Rachel Matteo-Boehm, Diana Ng Fung, and Danielle Van Wert at the national law firm of DLA Piper Rudnick Gray Cary, CFAC's general counsel.
Have a legal issue? Submit
your question here.
Fees for record searches?
Q: I recently filed a request with a number of local health departments in California for copies of the last two routine health inspection reports for restaurants in their respective jurisdictions. Several of these jurisdictions have sent me invoices which include "search" fees. For example, I filed a request with a county health department, and they sent me an email detailing a $29 search fee and $2 in copying costs. I am happy to pay for copying costs, but is it within the confines of the law for them to charge me the search fee? Any info you can provide to me would be greatly appreciated.
A: Under the California Public Records Act (Government Code section 6250 et seq) a governmental entity is only entitled to the cost of running the copy machines and conceivably also the expense of the person operating it. The cost of duplication does not include the time spent retrieving, inspecting, and handling the file from which the copy is extracted. North County Parents Organization for Children with Special Needs v. Department of Education, 23 Cal. App. 4th 144, 146 (1994). In the North County case, the court expressly disapproved of a fee that reflected, not only copying expenses, but also "staff time involved in searching the records, reviewing records for information exempt from disclosure under law, and deleting exempt information." Thus, it appears that it is not within the county health department's powers to charge the $29 search fee detailed in your bill.
Public comment before action at an open meeting
Q: Are local governments required to allow public comment before acting at regular open meetings?
Obviously most (all?) do, but I'm not sure whether it is specifically required. If so, can you cite the relevant rule of law?
I would also be curious to know what is the norm. I know that many city councils and such allow three minutes a speaker... Others five. Some require you to check in at the beginning of the meeting. Others don't. Can you help?
A: Both of your questions can be answered by referring to the Brown Act (California Government Code Sections 54950 et seq) which requires governing and advisory bodies of local government agencies to conduct government business in a way that allows the public to participate in decisions and scrutinize government actions. The Brown Act covers all aspects of open government from agenda-posting and meeting requirements to access to government records.
In response to your first question, whether local governments are required to allow public comment at regular meetings, the answer is yes. According to the Brown Act (more specifically, Government Code section 54954.3(a)), public comment must be accepted at both regular and special meetings. Moreover, at a regular meeting the public must be allowed to comment not only on agenda items, but on any item of interest subject to the body's jurisdiction.
You also asked about the length of time for public comment. Government
Code section 54954.3(b) allows a legislative body of a local agency to
control the scope of public comment through the use of time limits. The
law does not state what those limits are, simply that they are to be "reasonable...to
ensure that the intent" of accommodating public comment "is
carried out." The Attorney General has concluded that five minutes
per speaker may be "reasonable" under the circumstances (75
Ops. Cal. Atty. Gen. 89 (1992)), but many--if not most--agencies appear
to keep the per speaker limit to three minutes per agenda item. More important
than the exact time permitted is that the time limits be administered
neutrally and evenhandedly. Clearly giving more time to citizens on one
side of a controversial topic than those on the other, for example, is
not "reasonable."
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ASKED AND ANSWERED
Do you find these questions and answers helpful? If so, you should also
consult "Asked and
Answered" on CFAC's Web site, a compilation of past Hotline questions
and answers.
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PERSONAL PERSPECTIVE
'Clear thinkers and straight shooters'
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