TRANSPARENCY IN THE TIME OF COVID-19 PUBLIC RECORDS EDITION

Continuing on the theme of government transparency and how you get the information you need to cover the developing COVID-19 crisis, I have outlined here some principles to remember.  Email First@smvt.com for a sample letter you can use to make your requests.  Of course, every situation is different and dependent on your relationship with public agencies and officials, so tailor the letter to your circumstances.

  • Generally speaking, the Public Records Law gives you a right to demand access to records, not to demand answers to questions. Of course, it is fine (and, frankly, only natural) for you to start with a question.  But if you do not get the information you need, identify the document that contains the answer, and ask for that.
  • The definition of a public record is key: any document made or received by a public agency in connection with the transaction of public business.  S. § 132-1(a).  Don’t forget that public agencies receive documents every day that otherwise wouldn’t be public but become public once they are received.
  • The fact that a document has confidential information commingled with non-confidential doesn’t matter. The public agency must remove the confidential information and release the non-confidential, and the agency must pay that cost.  C. Gen. Stat. § 132-6(c).  This is particularly important now, because documents and databases may have both public and confidential information together.
  • If a public agency withholds documents, ask their legal basis for doing so. They must answer you with numbers, not words.  What I mean by that is they must provide you with a statutory or regulatory citation (like G.S. § 130A-143), not with an answer like “privacy of the patient” or “that’s confidential.”  You can only evaluate the agency’s position if you know the precise statute they claim.
  • If you are not asking for patient-specific information, HIPAA and state medical confidentiality statutes don’t apply.
  • HIPAA also doesn’t apply if you are not asking a “covered entity” — health plans, health care clearinghouses, and health care providers.  The hardest call under HIPAA may be if you ask for information from an emergency response team.  A 911 call that results in a dispatch to a fire doesn’t trigger HIPAA, but a call that results in EMS dispatch might.  However, North Carolina has a very specific statute that exempts from disclosure “medical records compiled and maintained” related to EMS programs.  S. § 143-518. The statute doesn’t define “medical records,” but whatever they are, they are confidential.
  • The key to remember is that release of de-identified information or aggregated data does not violate either HIPAA or state law.
  • Push back on anyone who tells you that HIPAA trumps state law. Our Court of Appeals have held that where “[t]he express terms of [federal law] permit the disclosure of the information requested by Plaintiffs,” it must be disclosed.  DTH Media Corp. v. Folt, 259 N.C. App. 61, 71, 816 S.E.2d 518, 525 (2018)  (emphasis supplied).

 

Email First@smvt.com  for a sample letter and make it your own.  Remove the legal-y language, if you prefer, and edit to match your relationship with your local public officials.

BOTTOM LINE:  The two keys are (1) be prepared to identify what documents contain the information you need and (2) demand that you either be given those documents or a valid statutory exemption.

For more discussion of these issues and for North Carolina and CDC data on COVID-19, see the resources below.

From the Reporters Committee for Freedom of the Press:

https://www.rcfp.org/wp-content/uploads/imported/MEDPRIV.pdf

From UNC School of Government:

Should a Local Government Be a HIPAA Hybrid Entity?  https://canons.sog.unc.edu/should-a-local-government-be-a-hipaa-hybrid-entity/

Using & Disclosing Protected Health Information (PHI)

https://www.sog.unc.edu/sites/www.sog.unc.edu/files/Using%20Disclosing%20PHI%20May%202018.pdf

CDC:

https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html#reporting-cases

NCDHHS:

https://www.ncdhhs.gov/divisions/public-health/covid19/covid-19-nc-case-count

 

 

TRANSPARENCY IN THE TIME OF COVID-19 OPEN MEETINGS EDITION

I want to begin with my gratitude for the vital and hard work that you all have been doing to report on the coronavirus crisis.  Personally, I check five or six news websites about every hour to see what has developed, what has changed.  I know I am not alone.  On behalf of all your readers and viewers, thank you!

It has become apparent that in the coming weeks and months, government operations are going to be disrupted beyond recognition, making your job harder at the very time that it is more important.  You’ll find here a few reminders I hope will be useful, as well as links to some government resources that might be helpful.

First, UNC’s School of Government Professor Frayda Bluestein reminds, there is nothing about the Governor’s state of emergency declaration that relieves public officials and public agencies of their obligations under North Carolina open government laws.  Neither the Governor nor local officials can wipe away those requirements.

Second, a quick refresher on the Open Meetings Law.  Remember, the OML applies to quorums of public agencies.  At its core, the OML requires three things:  notice, access and minutes.

NOTICE

  • Notice for non-emergency, special meetings must be given at least 48 hours in advance of a meeting. To get individual notice, though, you must be on the notice list.  If you haven’t done so already, ask to be on that list for any public body you cover (including committees and subcommittees).  Public bodies can require you to renew your request annually, so just be sure.
  • It’s fairly easy to imagine there will be lots of emergency meetings in the future. The law for emergency meetings doesn’t have any specific time requirement.  They can be called with short notice, and again, notice must be provided to anyone on the notice list.

ACCESS

  • Access means reasonable access. Imagine the Buncombe County Board of Education decides they will discuss at their next meeting canceling school for the balance of the year.  And imagine everyone in Buncombe County wants to attend.  They won’t all fit in the meeting room, and our Court of  Appeals has ruled that the board doesn’t have to find a big enough room (or coliseum).  Rather, agencies must provide access for a reasonable number of people.  What is reasonable may be seen through the lens of health department guidance on how many people can gather together, but surely allowing some of the public must be required.
  • The OML provides for at least some public bodies to meet electronically. Professor Frayda Bluestein has written that there is no express statutory authorization for local governmental bodies to meet by phone or other electronic communications and that it’s questionable whether they can.  But if they do, the law is clear that the public must be given a means to listen in.  Bodies must provide “a location and means whereby members of the public may listen to the meeting and the notice of the meeting required by this Article shall specify that location.”  S. § 143-318.13(a).  The law allows charging a fee of $25.00 per listener, though Professor Bluestein has recommended that agencies waive that fee.

MINUTES

  • The OML requires that minutes be kept for all meetings. And for closed meetings, there must be a record “so that a person not in attendance would have a reasonable understanding of what transpired.”  S. § 143-318.10(e).
  • There is no provision in the law requiring a recording of meetings – audio or video – but urging such recordings might be one way to mitigate the lack of transparency that might lessened access that results from this emergency.

Remember to use the Open Meetings Law and Public Records Law in concert with one another.  If you are not able to be present at a meeting – either because it was closed to the public or because you’re covering developing news over at the hospital – remember that likely there are associated public records that might be instructive.  In addition to asking for agendas and meeting packets, ask for memos, emails or other documents exchanged in advance of (or after) the meeting.  Ask for notes taken by public officials at the meeting, too.

UNC’s School of Government has several resources detailed analyses, including these:

 

Stay tuned for updates on the issue of court access in light of Chief Justice Beasley’s order closing most courts.  To see Chief Justice Beasley’s COVIC press conference and for official updates on the courts, including memos and court orders, go to

https://www.nccourts.gov/covid-19-coronavirus-updates?fbclid=IwAR0ubZ3oyLJvscWXmZF_wqJDnmWKVYXV-1VNUQghcQLxMKi_m-hC7V-7cJI

Finally, as one reporter said just last week when we were discussing COVID-19, these laws set minimums for transparency.  Our job always is to push for as much access and as much information as possible.  That’s how we can best serve the public who are relying on us to collect, digest and report information in these incomprehensible times.

THE REPORTER’S PRIVILEGE

Over the next several weeks, I’ll be sharing a series of SMVT QuickSheets* on topics ranging from the NC reporter’s privilege and defamation to things HR and advertising departments should keep in mind.

THE REPORTER’S PRIVILEGE

  • North Carolina has a robust reporter’s privilege. S. § 8-53.11.  The privilege applies regardless of whether information is confidential or nonconfidential, published or not published and applies to all aspects of a news operation.
  • A journalist can waive the privilege by answering any questions posed by a party looking for information. The appropriate response when receiving an inquiry about a story – particularly if the inquiry comes from a lawyer – is that the caller needs to talk with the editor or publisher.  The editor or publisher should “hear out” the caller, receive any question, and then refer the matter to legal counsel.
  • If a journalist gets a subpoena, it is important to act quickly. The Rules of Civil Procedure permit response by Objection – rather than a motion to quash – within the first 10 days after receipt of the subpoena.  After that, a newspaper will have to file a motion to quash, which will be far more time consuming and costly.
  • The privilege can be avoided or overcome if it is waived by the journalist or if the party seeking documents or testimony can prove that the information is essential to the outcome of the case and unavailable from any other source.

*For a printer-friendly version of this, go to http://tinyurl.com/SMVT-Reporters-Privilege.  To read the statute, go to http://tinyurl.com/NC-Rptr-Priv

Please email us with feedback, questions or topics that interest you at 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.

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.