COURT ORDERS RELEASE OF POLICE VIDEO

If a picture is worth a thousand words, a video must be worth a million.  Until a year ago, though, the law with regard to law enforcement videos was muddy.  Some departments took the position that video (particularly of officer-involved shootings) was a personnel record.  Some departments released video — sometimes.  Those of us in or representing the media took the position that law enforcement videos offered the best evidence of “the circumstances surrounding an arrest” – a category of information that is public by law.  Questions remained about access to video when there was no arrest, such as when a suspect was shot and killed.

As most of you know, the law related to law enforcement videos – body cam, dash cam, or otherwise – was clarified effective October 1, 2016.  G.S. § 132-1.4A.  http://tinyurl.com/GS-132-1-4A  All those questions are answered.  Law enforcement recordings are neither public records nor personnel records.  Recordings can be shown – but not given – to individuals captured in the video but not to anyone else.  Anyone who wants a copy of the video – witness, victim and media alike – must petition the court for access.  And pay a filing fee.  And probably pay a lawyer.  The new law took all discretion away from law enforcement and put it in the hands of superior court judges.

Last month, Charlotte-Mecklenburg Police shot Rueben Galindo at his home after he had called 911.  http://tinyurl.com/Galindo-Shooting  Doug Miller of the Charlotte Observer and Robert Dawkins of SAFE Coalition NC petitioned the court to direct the release of law enforcement video.  On October 3, Judge Todd Pomeroy did just that and ordered release of the video by October 6.  http://tinyurl.com/Judge-Orders-Release

Judge Pomeroy wrote, “The Recordings, related to an officer-involved shooting that occurred on September 6, 2017, arise from a matter of significant public interest, and release of the Recordings is necessary to advance a compelling public interest.”  The judge ruled that release of the video “would not create a serious threat to the fair, impartial and orderly administration of justice, in light of the availability of extensive voir dire at trial, as well as other alternatives available to a trial court for ensuring a fair and impartial jury in the event any criminal charges are brought.”  He also found that release would not jeopardize the active internal investigation into the shooting.  For these reasons, he ordered the release of the video with only the caveat that the images of minor children should be obscured. (To read the Court’s order, go to http://smvt.com/wp-content/uploads/2017/10/Galindo-Order.pdf.)

Jon Buchan, who represented Miller and The Observer at the hearing, said “We have now had in Mecklenburg County several successful petitions for release under the ‘new’ statute dealing with release of body camera and dash camera videos and other law enforcement recordings, and Doug Miller at The Charlotte Observer has been aggressive and thoughtful about choosing his battles when seeking them.  It seems that the importance to the community of transparency in these police-involved shootings has become apparent to CMPD and to our courts.”

Dash cam and body cam video is different from other law enforcement records, and it should be public.  Videos from dash cams and body cams are little more than a bare naked, honest recording of what has taken place.  They offer an un-edited and un-editorialized account of an event.  None of us has an expectation of privacy as we travel public streets and sidewalks.   In this age, when more than 90% of adults and 97% of people under 44, have cell phones (Pew Research Center’s Internet & American Life Project), we are subject to being watched, recorded or videotaped during almost all of our time in public.  “Invasion of privacy” arguments don’t justify keeping dash cam and body cam video from public view.

More than 30 years ago, Chief Justice Burger wrote, “People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.”  Richmond Newspapers Inc. v. Virginia.  Let’s hope that more judges like Judge Pomeroy weigh the merits of releasing law enforcement video and conclude that as a society we are more informed and better citizens when our government is transparent.

Email us with feedback, questions, or topics that interest you:  First@smvt.com

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Stevens, Martin, Vaughn & Tadych, PLLC

Providing legal counsel to traditional and social media and strategic communicators

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“Personal Email” as Public Records

Gmail. Yahoo! AOL. Do these sound like official email accounts for the conduct of public business? They can be.

The NC Public Records Law applies to public agencies and public officials/employees. It makes public all documents made or received in connection with the transaction of public business unless there is a specific, statutory provision that exempts them from public disclosure. I highlight “statutory” because public officials must be able to identify by chapter and verse the statute they claim exempts a record from disclosure.  It is not enough to say “It’s confidential,” or “It’s proprietary,” or “It’s sensitive, personal information.”  If there isn’t a law that exempts a document from release, it must be released.

The law makes no reference to how the document is created, transmitted, or stored. A letter to a city councilman about the location of a garbage dump, for example, is equally public whether it is delivered through a .gov email address, AOL, FedEx, or carrier pigeon. Under the law, what matters is the content of the emails. If the email addresses public business and isn’t exempted by some other law, it is a public record. On the other hand, if an email says, “Honey, would you pick up a gallon of milk on your way home?” that probably isn’t a public record even, if it is sent to a .gov email address.

Practical Tip 1:

When you make a request for public records, be clear that you expect to receive all responsive records on the topic that interests you, regardless of what email account was used to send or receive them.  Include a statement like this: “We request all records related to X, whether they reside on governmental or personal computers, and whether they were communicated using governmental or personal email accounts.”

Practical Tip 2:

If you get resistance, you and the public official don’t have to take my word for it that you are entitled to get “personal emails” conducting public business.  Frayda Bluestein, a faculty member with the UNC School of Government, says exactly the same thing I do.  “If an email is made or received in connection with the transaction of public business, it is a public record regardless of whether it is created or stored on a public or a private computer, mobile device, or email system.”  http://tinyurl.com/SOG-Email-As-Public-Record

And if your public official doesn’t trust either me or Frayda, you can quote Judge Howdy Manning.  In a similar situation, ruling on a public records lawsuit against UNC, Judge Manning found that Coach Davis’ personal cell phone bills were public records because they reflected the conduct of public business. Judge Manning wrote, public officials “may not use their personal cell phones to ‘dodge’ or evade the North Caroline Public Records law and may not avoid public scrutiny of their cell phone records by using their personal cell phones to conduct public business.”

The same goes for personal email accounts, personal cell phone texts or personal carrier pigeons.  What matters is the communication, not how it is made.  So don’t overlook your right to receive all records of public business, even those made on personal accounts.

[You can see Judge Manning’s orders in the UNC case here:  http://tinyurl.com/Manning-Orders-UNC]

Email us with feedback, questions, or topics that interest you:  First@smvt.com

 

Dealing with non-employees and non-employee content

We all know that there is a fair amount of red tape that comes with having employees.  You have to supervise and mentor them. They want to get paid. And sometimes they even complain.  So contracting with freelancers might seem like the answer to all your problems, but freelancers bring their own baggage.  Here are some tips to bear in mind when using freelancers.

  1. Conceivably, you are on the hook for intellectual property problems that freelancers lay at your feet.  That means the freelancer must promise – in writing — that they have full rights to anything they provide you for publication.  You can and should require them to indemnify you for any legal liability you have if their work isn’t original.  (Of course, you know the old adage: “that and 50¢ …”  And 50¢ won’t even get you a cup of coffee now.)
  1. Re-use. When you contract with a freelancer, be sure that your agreement gives you rights to use the work not only in the paper tomorrow, but also online, in multimedia formats and basically any format that anyone anywhere ever thinks up.  You don’t want to decide to use that beautiful shot of the mountains on the cover of the publication you launch next year only to discover that you don’t have the rights to do so.  Include language along these lines:  “[The Company] is granted a nonexclusive, assignable, perpetual worldwide permanent license to duplicate, display, distribute or transmit the work in all media, known or hereafter known.”  (If you want to be the only publisher of the work, “nonexclusive” should be changed to “exclusive.”)
  1. Non-use. Reasons ranging from breaking news to dissatisfaction with the work may cause you to pass on publishing a freelancer’s work, so be sure that your contract gives you the right to publish the work, not the obligation to do so.
  1. Ink the deal. Transfers of copyrights or copyright licenses don’t need fancy seals or sealing wax stamped by the king, but they do have to be in writing.  Email most likely is enough, but in no event can you rely on a verbal agreement.
  1. Oddly, when it comes to the libel by a freelancer, your potential responsibility turns on whether the material is posted online or printed with ink on paper.  The federal Communications Decency Act provides protection for “third party” content that is posted on your site, maybe even if you contracted for that content.  The same isn’t true, though, for what gets printed in the hard copy of your paper.  Whether it is news, advertising or letters to the editor, you stand behind any content that you select for publication in the print edition of your paper.  Again, include an indemnity provision by which the freelancer stands by the freelance work.
  1. Governing Law. It may seem a small thing, but include a statement that the agreement is a North Carolina contract, governed by North Carolina law, and that any dispute will be litigated in your home county.
  1. Odds and Ends. It may be obvious, but your agreement should spell out the amount to be paid and any critical deadlines.  Leaving out those basic terms not only could lead to a fight with the freelancer.  It could open the door to a court finding you didn’t ever really have a binding contract.

Obviously there are benefits to using freelance writers and photographers, just be sure you do it wisely.  Keep copies of all agreements, and update those agreements when circumstances change.

Email us with feedback, questions, or topics that interest you:  First@smvt.com

But It’s On The Web! Using Images and Information You Find on the Internet

You are covering the story of a hit-and-run that left two people injured.  You are positive about the name of the suspect, because the police released it, but the only picture you can find of him is a snapshot posted on his Facebook page.  Can you run the photo with your story?  Answering that question requires an understanding of both the copyright law and its exception for “fair use.”

The first fundamental to understand is that facts and ideas cannot be copyrighted.  Copyright law protects the manner of expressing facts.  The creativity.  The statute uses the phrase “original works.”  It doesn’t protect the facts themselves.  The law plainly says, copyright protection does not extend to “any idea, procedure, process, system, method of operation, concept, principle, or discovery ….”  That means you don’t violate a copyright simply by reporting information you gain from other sources.  (After all, isn’t that the essence of every term paper ever written?)  One way to conceptualize the difference might be to consider that recipes (which really are just a list of ingredients and instructions) can’t be copyrighted.  However, a cookbook with artwork and vignettes alongside the recipes can be copyrighted.

The second fundamental to understand is that just because something appears on the web doesn’t mean it is in the public domain.  Think about it.  Most newspapers publish stories online but don’t intend them to be nabbed and read by the local radio station during drive time.  Radio personalities can talk about the news – so can late-night TV hosts – but they cannot read it verbatim.  So as you surf the web, keep in mind that anything you (or your company) didn’t write or photograph or draw, someone else did.  And that someone else owns the copyright for that.  That applies to everything from front-page news articles to photos posted on Instagram to this blog post.

If you want to use someone else’s work, you must do one of two things.  Get permission or determine that your use is a “fair use.”  As for getting permission, be sure you go to the right person.  Generally speaking, companies “own” the work of their employees, so the person who wrote a magazine cover story probably isn’t the owner of its copyright.  You need permission from someone with sufficient authority to speak for the company.

As for fair use, that’s an even trickier issue.  My intellectual property professor at UNC always said, “Anyone who says he can give you a definite answer to a fair use question, definitely doesn’t understand fair use.”  That’s because instead of offering black-and-white rules, the fair use statute, doctrine and cases offer factors for a court to consider and evaluate and weigh.  There are, however, some basics that can inform your decision about whether to use something.

The first distinction to draw is between commercial and non-commercial uses.  Putting someone else’s poem on the inside of a greeting card and selling the card is far more likely to cause copyright problems that using something in news coverage.  (Even though you hope to sell your newspaper and make some money, publishing and selling a newspaper is not a “commercial use” for these purposes.)

The next two factors to consider are the nature of the original work and the impact your use had on the market for the original work.  Opposite ends of the extreme would be a photograph taken by a professional photographer and a fraternity party selfie posted to Facebook.

The final factor a court will consider is how much of the original work is used.  If your book review quotes a few sentences to show how good (or bad) the book is, that’s likely a fair use.  On the other hand, if you use all of a work – whether it is a photograph or a poem —  that weighs against fair use.

News organizations have a leg up on the fair use argument, because “news reporting” is identified in the law, by name, as a potential fair use.  That doesn’t always answer the question, though, as Daniel Morel could tell you.  Mr. Morel is a professional photographer whose photos of the 2010 Haitian earthquake were published without permission by many reputable news outlets. He settled his copyright claims with most of the alleged infringers, but two publishers didn’t settle.  They went to trial, and a jury awarded Mr. Morel $1.22 million in damages for their use of eight photographs.  His status as a professional photographer and the fact that the unauthorized uses supplanted fees he otherwise would have been paid for use of his photos figured significantly in the outcome of his case.

The bottom line is that no one can tell you with certainty whether you can use that Facebook photo for your broadcast or story on the hit-and-run accident.  Using the work of a professional who otherwise gets paid for his work is always risky.  Using all of someone else’s work is risky.  And it’s risky to use someone else’s work in a commercial way – either to promote your product or services or as a product itself.  Only a judge and jury can give you the final answer, and then it’s too late.  But at least understanding the factors that judge and jury will weigh can give you a framework to evaluate the risks.

Email us with feedback, questions, or topics that interest you:  First@smvt.com

Can We Talk? Getting Information from Sources Who May Be Breaking the Law

 

If asked whether a reporter faces liability for asking a source to provide information that legally is secret, most media lawyers will answer:  “No, it’s never illegal to ask questions.  You may not bribe, coerce or hack … but just asking questions isn’t a violation of the law.”

Few things in the law are easy, though, so let me clarify. Take, for example, a potential grand juror willing to talk.  Though you have no obligation not to ask, there are prohibitions on the grand juror speaking out.  So that means you have no legal liability for asking questions of a grand juror, but you still should think about two things.

First, if a potential source asks if he or she could get in trouble for talking with you, you should never answer that question.  You are not a lawyer; you cannot give legal advice.  The State Bar frowns on that kind of thing.  The best answer to a source asking that question is something along the lines of, “I can tell you why I think this is important information for the public to know, and I hope you’ll share with me what you know, but I can’t give you legal advice about anything, including whether you can talk with me.”

The second issue is this:  Depending upon the facts of the case at issue and who has what at stake, you might find yourself on the receiving end of a subpoena if you publish information that legally you are not supposed to have.  If so, your lawyer will look to the NC journalists privilege (G.S. § 8-53.11) to try to keep you off the witness stand.  You have a qualified privilege in all of your journalistic work.

That privilege is conditioned in three ways, though.  First, the privilege doesn’t apply at all if you are an eyewitness to a crime.  A skillful lawyer might argue, for example, that if you received information from someone who broke the obligation to keep grand jury proceedings secret, you were an eyewitness to a crime of leaking information illegally.  Second, a lawyer might argue that even if the privilege applies, it is overcome by proof that you are the only person who knows who “leaked” and that the leaker’s identity is critical to the outcome of a proceeding related to the leak.  Finally, even if you have a privilege, you can waive it by talking.  That’s why we always tell people that if they get a call from someone wanting information from you (as opposed giving information to you), that call should be referred to an editor, who then should call a lawyer.

So, all of this means that you should think carefully before asking a source to break the law by giving you secret information.  Certainly there are times you will evaluate the risks and determine they are low.  You may even decide that the story is important enough to proceed in face of high risk.  But make those decisions with an awareness of the ramifications down the line and talk with editors about those decisions.

Email us with feedback, questions, or topics that interest you:  First@smvt.com

Take That Down!

Have you gotten a call or letter or email from a lawyer saying his client’s record has been expunged, and so the story you posted last year no longer is accurate?  The lawyer wants you to take it down.  What do you do?

Assuming the information you published was accurate when you published, you have no obligation to take it down, and there are good reasons you shouldn’t.

There has been a fairly significant push to have people take advantage of NC’s recently relaxed expungement law.  There also is a statute on the books that says that if you are in the business of selling access to a criminal records databases (think http://www.123nc.com), you must update the database to remove convictions that have been expunged.  However, there is no law – nor could there be, thanks to the First Amendment – requiring you to remove any articles from your archives.  The analogy, of course, is that you have no obligation to go to the public library and pull hard copies of your paper that are on the shelves just because someone you wrote about has been acquitted or gotten a conviction expunged.

Maybe the lawyers who send these letters are confused about what the law requires of newspapers.  Maybe they are playing dumb with the hope that you will say, “Oh, okay.  We’ll take it down.”  Either way, the fact that a conviction has been legally expunged of course does not mean it didn’t actually happen. It just means it didn’t legally happened.  And that has no bearing on the accuracy of your original reporting or your right to leave your archived reporting online.

If you learn that there has been an expungement in a case you covered, it is entirely an editorial choice whether to write a follow-up piece or post an editor’s note to the original story or do nothing at all.  If you develop a policy about the issue, you might even consider publishing something to explain how your paper will handle expunged records.  That way your readers will understand legal expungement and why you leave your archives intact.  What you shouldn’t do is tinker with archives and take down stories that are correct and forfeit the position as the author of the First Draft of History.

An important footnote:  There’s a general adage that lawyers talk with lawyers.  At the risk of sounding like I’m drumming up work for the legal profession, if the communication you get comes from a lawyer, your newspaper should have a lawyer answer.  I’m not saying a lawyer would try to trick you into saying something you shouldn’t, but to place that call yourself risks waiving some important rights you have as a journalist and could potentially compromise your paper in the event the “expungee” decides to sue.  It shouldn’t take much time or be costly to have your lawyer write a letter, but your lawyer should explain that any attempt to take legal action for your decision not to remove an accurate article from your website would be frivolous and will be met with vigorous defense, including seeking attorney fees.

Public Agencies Putting Records Online

You may be familiar with the provision of the Public Records Law that says you get to ask for public records in whatever format you want, so long as they can be provided that way.

Persons requesting copies of public records may elect to obtain them in any and all media in which the public agency is capable of providing them. No request for copies of public records in a particular medium shall be denied on the grounds that the custodian has made or prefers to make the public records available in another medium. The public agency may assess different fees for different media as prescribed by law.

Starting this month, this provision has a footnote.  If a North Carolina public agency puts “public records in computer databases” online in a format that allows viewing and printing or downloading the record, the agency doesn’t have to provide copies to any individuals who request those same records.  (See statute below.)  An individual can still demand to see the records in person.

The statute does not define “public records in computer databases,” but the provision appears in a section of the law that applies to “electronic data-processing and computer databases as public records.”  That means public agencies may not be able to use it as a wholesale substitute for providing records (unless they first put them in a database), but it remains to be seen how aggressively agencies will interpret this new license to route public records requests to websites.

This development may not be all bad.  Although it will make life harder for individuals who don’t have ready access to the internet or the capability to print out documents, it might serve as an incentive for agencies to post once and be done.  This could mean faster and cheaper access to public records.  And for those who live far away, it eliminates the need to talk public officials into mailing documents.  Some enterprising computer whiz might even create a page that consolidates links to records that get posted across the state.  (Hint. Hint.)

If a public official sends you to the internet instead of giving you a record you request, we’d love to hear about it.  Send us an email at First@smvt.com.

G.S. § 132-6.1(a1) (effective July 1, 2017)

Notwithstanding G.S. 132-6.2(a), a public agency may satisfy the requirement under G.S. 132-6 to provide access to public records in computer databases by making public records in computer databases individually available online in a format that allows a person to view the public record and print or save the public record to obtain a copy. A public agency that provides access to public records under this subsection is not required to provide access to the public records in the computer database in any other way; provided, however, that a public agency that provides access to public records in computer databases shall also allow inspection of any of such public records that the public agency also maintains in a nondigital medium.

Email us with feedback, questions, or topics you’d like to read about:  First@smvt.com

Why First for a Reason?

First for a reason.  First among equals.  The First Amendment exemplifies these concepts, because the First Amendment provides the foundation on which the next nine provisions of the Bill of Rights rest and depend.

Consider the recent allegations here in North Carolina that guards in the Department of Corrections have abused prisoners, required them to put hot sauce on their skin and forced them to abuse one another.  The fundamental charge is that the condition of their confinement constitutes cruel and unusual punishment, violating the Eighth Amendment.  There is even a lawsuit pending.  But the lawsuit got no real public attention – and the issues got no public condemnation – until a series in the Charlotte Observer brought the accusations fully to light. http://tinyurl.com/Observer-Wrong-Side

Many Americans probably learned their Miranda rights (Fifth Amendment) not from a civics class or poli sci text but from watching arrests in movies or old episodes of Law & Order.

Even the National Rifle Association depends upon the First Amendment to get out their Second Amendment message.  The NRA spends $291 million a year, which in part pays for speech-based activities such as advertising, lobbying, litigation and communicating with their members.

The First Amendment gives life and meaning to the full Bill of Rights.  It is critical to our very democracy, providing that as a people can be informed about what matters.  Without the First Amendment protections for free speech and press, freedom to associate, to assemble and to petition the government, many other freedoms would languish.

First for a Reason will explore contemporary issues that flow from the First Amendment, as well as satellite issues such as government transparency, the impact and regulation of social media and intellectual property.  We will strive to be engaging and educational, sometimes thought-provoking and perhaps even funny from time-to-time.

If you have a question you’d like answered or a topic to suggest for discussion, email First@smvt.com.  If you would like to know when we update First for a Reason, just send an email with “subscribe” in the subject line.

Welcome to First for a Reason:  Info & Ideas on the First Amendment & Media Law.