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Chapter 9: Gathering Information
Chapter 9
Gathering Information
The flow of information between the government and the people is critical in a democracy like
the United States, and the press plays an important role in this information flow. Recent political
events reaffirm that journalists continue to be an extremely important source of truthful and
accurate information about what the government does at its every level.
Chapter 9 is about how the law affects the efforts of journalists and ordinary citizens to gather
news. The authors have made extensive revisions to the chapter, and they have added a great deal
of new material in the chapter. The first section of the chapter has been edited. The chapter has
new information and case law relating to journalists’ right to gather information. There is a new
section on filming and still photography in national parks. There is also a discussion of state laws
dealing with access to executions and access to information about the drugs used in executions.
The authors have also added new examples of journalists who were arrested for trespassing or
other charges while they were gathering news and examples of problems that arise when
journalists use deception to gather news. Many of these issues remain to be highly contentious.
Students have strong feelings on this as well, and it is easy to generate a good class discussion on
the issue. The remainder of the chapter focuses on the federal open-records and open-meetings
laws and the state open-records and open-meetings laws.
What Are Some Highlights of Material That Is New to This Edition?
As noted, there is a lot of new material in this chapter. Some highlights that you should point out
to your students are as follows:
1. A grey-shaded textbox on the Department of Interior’s (DOI) regulations for commercial
filming and still photography
2. A grey-shaded textbox on the secret recording of racist remarks made by Los Angeles
Clippers owner Donald Sterling to his girlfriend V. Stiviano
3. An update on the ability of journalists to access mug shots
4. A new discussion of recent cases involving the public’s right to attend executions and their
right to obtain information about drugs used in lethal injections
5. Two new examples of journalists who were arrested for trespass while reporting on
breaking news
6. Examples of journalists getting into legal trouble for using fake identification
7. A new introduction to the Freedom of Information Act (FOIA) that is both expanded and
updated
8. Several new examples of successful FOIA requests and FOIA requests that were delayed
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Chapter 9: Gathering Information
9. New data on FOIA requests and denials for fiscal year 2015
10. A new section on the FOIA Improvement Act of 2016
11. A discussion of access to electronic records and the ability of public officials to use private
e-mail
12. Updated examples of the Family Educational Rights and Privacy Act (FERPA) disputes
involving access to the records of college students
How Much Detail Should I Go into on FOIA?
The following are essential pieces of information for any student who hopes to become an
investigative journalist:
• Knowing about the existence of the federal Freedom of Information Act (FOIA)
• The FOIA’s general presumption of openness of government agency records
• How the FOIA has been used successfully (although often quite slowly) in the past by
journalists to gather information
• The nine exemptions to the FOIA
As the instructor, you have a substantial leeway in terms of how much depth you choose to go
into on things like the nine exemptions to the FOIA. Many instructors find it is easier and better
to focus on two or three exemptions to the FOIA instead of focusing on all the nine exemptions
to the FOIA. But other instructors might spend more time on the exemptions, especially
instructors who have been investigative reporters and have used the FOIA.
If you choose to cover the FOIA in less depth, you might suggest to students that there are many
good online resources available today that discuss the FOIA. Two online resources are as
follows:
• The Reporters Committee for Freedom of the Press: “Federal Open Government Guide”
http://www.rcfp.org/federal-open-government-guide
• The National Security Archive at the George Washington University: “The Freedom of
Information Act”
http://www.gwu.edu/%7Ensarchiv/nsa/foia.html
Both of these links were active as of July 18, 2017. You might want to verify their current status
before asking students to visit them.
What About Teaching State Access Laws?
Although the textbook addresses some state laws governing access to information and meetings,
the textbook merely gives an overview of this area and some examples from larger states like
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Chapter 9: Gathering Information
California and New York. Many new journalists, however, will find that the state and local
access laws are much more useful on their beat than the federal access laws. The responsibility is
on the instructor to supplement this material with statutes from his or her particular state. Starting
points for you (or your students) to find such information on your state laws include the
following sources:
• Reporters Committee for Freedom of the Press: “Open Government Guide”
http://www.rcfp.org/open-government-guide
• National Freedom of Information Coalition (NFOIC)
http://www.nfoic.org
State governments also maintain their own websites that provide information on their state open-
records laws. Two examples of such websites are as follows:
• Pennsylvania Office of Open Records
http://www.openrecords.pa.gov/index.cfm
• The Attorney General of Texas: How to Request Public Information
https://www.texasattorneygeneral.gov/og/how-to-request-public-information
Many states also have organizations dedicated to increasing access. One example is as follows:
• Colorado Freedom of Information Coalition
http://coloradofoic.org
All four of these links were active as of July 18, 2017. You might want to verify their current
status before asking students to visit them.
Problem Questions
1. For each of the following two situations, determine whether the documents or records in
question would be agency records or not. Then, determine if they are accessible to the
press and the public under the federal Freedom of Information Act or not. Finally, explain
your answer in each case.
a. The Department of the Interior hired Biologists Are Us, a private biological
laboratory, to study the sea lion problem at the Ballard Locks. The sea lions were
feasting on migrating salmon as they tried to re-enter the canal that led into the
freshwater lakes and streams where the fish would lay their eggs. Federal officials
wanted to know exactly how many fish these mammals ate each day. The biologists
did a thorough day-by-day study of the problem; after six months, they presented the
Department of the Interior with a 16-page report outlining their findings. Biologists
Are Us retained the volumes of data on which the report was based. The 16-page
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Chapter 9: Gathering Information
report was made public, but the Sierra Club sought the original data gathered by the
biologists. After the Department of Interior denied the club’s original requests for
this data, the Sierra Club filed a Freedom of Information Act request with the
Department of the Interior. Are these agency records? Why, or why not?
b. The staff of the U.S. Senate Telecommunications Committee has just completed a
report on how much of children’s programming is broadcast on each of the television
stations in the United States. The Committee published a report highlighting its
findings. Action for Children’s Television (ACT) wants to see all the data that were
gathered and subsequently files a Freedom of Information Act request with the
Committee. Are these agency records? Why, or why not?
2. Central City police get a tip that Milton Miller, a man wanted on a variety of security fraud
charges, is staying with his brother on a farm near the edge of town. The police have come
under sharp criticism from both the mayor and the local news media for letting Miller
escape from their custody three months ago. To try to recoup some reputation, Chief
Harley Davidson calls the editor of the local newspaper, the Central Courier, and asks him
if he would like to send a reporter and a photographer along with the police officers who
are going to execute the search warrant for Milton Miller at the farm. The editor says sure
and dispatches a team to go with the police. Officers quietly surround the house. Then,
Chief Davidson, two men, and the journalists enter the house through the front door.
Miller’s sister-in-law, who is holding a small baby, tells the reporters they have no right to
enter into private property and asks them to leave. But they stay, continuing to snap
pictures, after Chief Davidson announces to the occupants that the journalists have his
permission to be there. With kids screaming and crying and the sister-in-law protesting, the
officers find Miller hiding in a closet, put him in handcuffs, and march him outside. Miller
is taken to the courthouse where he is arraigned on a variety of charges and carted off to
jail.
Milton Miller, his wife, his brother, and his sister-in-law bring a lawsuit for trespass
against the Courier and against the police chief for permitting the journalists to enter their
home without permission. They claim a violation of their Fourth Amendment rights in the
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Chapter 9: Gathering Information
latter lawsuit. Davidson argues that the reporter and the photographer were fulfilling a
valuable law enforcement purpose when they entered the home to document the arrest.
Lawyers for the Courier argue that as long as the police gave permission, the journalists
had the right to enter private property. Who will win this case, and why?
Answer: The Millers will win both suits. Journalists do not have the right to enter private
property without the permission of the occupants or property owners. In this case, not only
conduct.
3. When it comes to journalists tape recording people’s conversations, state laws vary but
generally fall into two camps. Explain these two types of camps. Which camp do most
states favor? Explain which camp is more favorable to journalists, and why it is more
favorable.
Answer: The majority of states (38 to be exact) have “one-party consent” statutes when it
comes to laws regarding the tape recording of people’s conversations. This means that only