The Student Press Law Center blog


Arizona case demonstrates student journalists should be mindful of court recording rules



Experts are disputing an Arizona judge’s order to journalism students to delete audio recordings of a sentencing hearing.

The Arizona Capitol Times (with the help of two student journalists) reported that Pamela Gates, an associate judge at the Maricopa County Superior Court, halted court proceedings after learning that a group of Arizona State University journalism students were recording the proceedings. The judge ordered the recordings stopped and destroyed.

Arizona First Amendment lawyer Dan Barr told the Capitol Times that he believed the judge went too far in demanding the deletion of the recordings, though it’s unclear how and whether the judge had the authority to sanction the students at all.

David Bodney, an Arizona attorney specializing in media law, said Arizona’s current court rules for recordings allow camera and audio recording with advance notification. He would know, because he helped implement it.

“The most recent amendment to the rules were to increase camera coverage, not limit reporter’s rights,” Bodney says. “I would argue that an order to destroy the information obtained in an open courtroom would exceed the court’s lawful authority and be unconstitutional.”

Court spokesperson Karen Arras said in an email that Gates had reacted appropriately and the students were at fault for not notifying the court beforehand they would be recording.

“None of the students submitted a written or electronic request 48 hours in advance or notified the judge or the judge’s staff prior to using the devices … students were still able to take notes and write their stories. In addition, all of the Superior Court courtrooms are equipped with a digital video and audio recording system. So if the students’ notes were incomplete, they could have requested a digital recording of the hearing and one would have been provided to them for a nominal charge,” Arras said.

The Capitol Times report states the students’ recordings weren’t intended for publication. The main thing this case illustrates is that student journalists need to be aware and diligent when it comes to court rules in their communities.

It’s hard to make blanket statements on courtroom rules regarding recording. It’s often up to individual judges to make the rules at the local level, and state and federal courts also have their own rules. It can also vary on a case-by-case basis. The Society of Professional Journalists has a helpful guide on court rules, which often boil down to “it depends.”

Oftentimes orders not to record in courtrooms come on the basis of maintaining privacy, decorum or so as to not cause a distraction. Journalists looking to record in courtrooms have the ability to challenge these orders, but oftentimes the rules are the rules.

Whether a judge can order journalists to delete their recordings as a penalty, however, is a different matter, one that has yet to be clearly established by the courts.

Tagged: Arizona, blog, Blogroll, courtroom, erase-recording, recent-news, recording

Supreme Court declines to hear free speech case



The U.S. Supreme Court declined Monday to hear a case that would have set precedent for student speech freedoms on social media.

The decision leaves standing the October 2016 ruling in the Eighth Circuit U.S. Court of Appeals against Craig Keefe, who claimed that his expulsion from Central Lakes College violated his First Amendment and due process rights.

In December 2012, Keefe was expelled from Central Lakes College’s nursing program for Facebook posts – one of which described a fellow classmate as a ‘stupid bitch’ – that he made on his public personal account. The college determined that Keefe’s posts violated the student handbook policy regarding professional behavior.

Keefe filed a lawsuit against the dean of the college, Beth Adams, along with other college administrators in February 2013. The U.S. District Court of Minnesota dismissed his case in August 2014, so he appealed the decision to the Eighth Circuit.

In the majority opinion ruling against Keefe, Judge James Loken wrote that the college had the legal authority to hold students to the standards of their intended profession and had the power to impose “adverse consequence on the student for exercising his right to speak at the wrong place and time, like the student who receives a failing grade for submitting a paper on the wrong subject."

Keefe’s petition to the Supreme Court made the argument that the Eighth Circuit ruling unjustly allowed public colleges and universities to hold students to professional standards for speech that has no relation to the professional context in a particular field.

“There is no suggestion that the Petitioner was unprofessional in his coursework or behavior in the clinical setting even if his Facebook etiquette left something to be desired. CLC violated the First Amendment when it expelled him for personal social media postings unconnected to any course requirement under conduct codes based on amorphous professional standards,” the petition read.

Before the Supreme Court considered hearing Keefe’s case, the SPLC and four other free speech organization filed an amicus brief urging the Court to hear the case. SPLC Executive Director Frank LoMonte spoke to the necessity of reversing of the Eighth Circuit decision, saying it allowed colleges and universities the ability to privatize the First Amendment.

“This case presents our best chance since the advent of social media to, finally, get clarity from the Supreme Court that off-campus speech is entitled to greater protection than speech inside of the classroom during school,” LoMonte said. “This ruling was outrageous and extreme in two respects – first, that it allows for expulsion from college without any of the formalities accompanying expulsion if the college just chooses to call the expulsion ‘academic’ rather than ‘disciplinary,’ and second, that a college can punish ‘unprofessional’ speech even without showing that it disrupted the operations of the college one bit. Even a middle-school student is entitled to First Amendment protection unless her speech substantially disrupts school operations, and the Eighth Circuit’s misguided decision has left college students with lesser free-speech protections than 12-year-olds. It’s imperative that the justices overturn this incredibly dangerous precedent and restore some meaningful boundaries to colleges’ disciplinary authority.”

To date, there has been no definitive ruling clearly establishing the boundaries of public colleges’ authority over off-campus speech and social media.

A Kansas court in 2016 punted a similar social media expulsion legal battle when U.S. District Judge Julie A. Robinson threw out constitutional claims brought by a University of Kansas student, Navid Yeasin, who was expelled in November 2013 after posting profane remarks about an unnamed ex-girlfriend on his personal Twitter account.

The Keefe ruling is of special concern for student journalists. Loken wrote in his majority opinion that the concept of the Supreme Court’s Hazelwood v. Kuhlmeier standard – that a school can regulate speech if it breaches the school’s instructional objectives – “has broader relevance to student speech” even beyond the Hazelwood context of a high-school newsroom.

If high schools and colleges begin taking Loken’s interpretation of a “broad” relevance to student speech, that opens the door to issues of censorship when journalists cover issues that paint their schools in a negative light.

Since the Eighth Circuit ruling now stands as the final word in Keefe’s case, the wait begins for another chance to get a definitive ruling on student off-campus speech and social media usage.

Tagged: blog, Blogroll, Keefe v. Adams et al, recent-news, Supreme Court, Supreme Court

Bringing the receipts: A response to the call for stories of student press censorship in Texas with Rachel Dearinger



While New Voices legislation being introduced in Texas earlier in March, it wasn't assigned to a legislative committee until last week. In a March 20 Facebook post, the New Voices of Texas page asked for stories of censorship students and advisers have faced in the Longhorn State to motivate state legislators to move the bill forward.

The SPLC spoke with Rachel Dearinger, who teaches photojournalism, broadcast and is the publications adviser at Mansfield Legacy High School about two instances of censorship she faced in her years of teaching in Texas.

The Q&A has been briefly edited for brevity and clarity.

Burleson High School (2005-06)

“It was school policy that if you were pregnant, you went to the alternative high school. There was one student in particular who opted, or wanted to stay at the high school because she was in AP classes. They covered her, and how not just that she was pregnant, but that she stayed at the high school and went to these classes.

Her life wasn’t over because she had a child. She obviously had great family support, and they encouraged her to stay. They did a story on that in the yearbook and had pictures of the kid in different situations. And obviously the student was still a student, but she was also a parent.

That particular principal, I had to give him every yearbook spread for approval. We had many conversations about how I did not like that, and he would come back and copy edit [the spreads] and all these things, and I was like ‘that’s not really your job.’

Sometimes kids need to make a mistake in order to know not to do it again. It’s not that I wasn’t appreciative of him copy editing, but that definitely wasn’t the reason. Anyway, he got that stack of deadlines and said ‘absolutely not, you can’t publish this story.’ There was nothing not factual in it – we talked to the parents, we talked to the girl who was pregnant, we took pictures of her and her child so obviously the parents were involved with the whole thing.

My editors got pretty upset about that, and I had to sort of step back and say ‘this is a fight I can’t fight for you. If this is something that you’re passionate about, you need to go to the school board and say what happened.’

They printed out the yearbook page and made copies to take so each school board member could have one. I remember the news being there, so the story made the news about how it wasn’t happening. Basically, we pulled it because they weren’t getting the support of the school board either.

During that meeting, the principal came back to me and was very mean and said we already published it by making those copies and distributing it at the school board meeting. What ended up happening is, of course the kids were upset and they thought they would have the support of the school board. When they didn’t, they called the SPLC and had lots of conversations, and the editor just decided she wasn’t going to fight it because she would probably not be done with it to this day.

What they ended up doing, and I was super proud of this, is they took it to the town newspaper and said ‘hey, here’s a story, want this?’ And it ended up getting read by more people than would ever have been read in the yearbook. That was sort of a quiet ‘Yes’ moment for me because I couldn’t really cheer them on to do that, but they did it on their own.”

Mansfield Legacy High School (2012-13)

“There was a student in my Broadcast I class and we were doing PSAs. So I had an African-American student who was an athlete, and he made this PSA. And what he did was he took a kid from every ethnic group that was at this school.

He had them in the studio on a solid background say whatever the derogatory term is for their race. He had them go through this, and the end of the video was saying that those words don’t define those kids. That they’re just words.

He got the idea from The R Word. I have really bad luck with principals apparently. We just thought ‘we better let them know that this is happening,’ because it obviously wasn’t a happy-go-lucky thing, but I thought it was really well done on a sensitive subject.

He was fine with everything in there until “nigger.” The whole point of the video was that we shouldn’t be using these words. That they’re just words and not what define people.

He said ‘yes’ at first when he saw it, and then he came back and said absolutely not. We were just about to post it and he said ‘no, no, no, over my dead body.’ That really surprised me because I thought [the students] were being proactive in a way that would catch students’ attention. That’s hard to do.

Nothing really ever came after that, and I never felt like I did at Burleson. But it’s unfortunate when good work, that I think can reach whatever it is in whatever medium, gets cut. It’s a lesson kids have to learn, but it sucks.”

What would New Voices legislation do for student journalism in Texas?

“I think it would help administrators see that there are a lot of serious kids. I think a lot of people don’t think journalism in high school is serious, that it’s just the yearbook. These kids are doing great work.

I think administrators, if they came into the classroom, would see that. But they’re just scared. Rather than empowering the kids, they just say “no” and protect themselves. I think it would definitely send a message to them that there is a reason [students] have these rights. They should be able to tell these stories that aren’t always happy stories.

All these high schools want the positive coverage, and I get it, but bad things happen too. Kids shouldn’t be afraid to tell those stories, but they are because they want to make everybody happy.

I tell them ‘it is not your job to make it look good if it’s not good,’ and they look at me like ‘what are you talking about?’

They didn’t win, so write about them not winning. I think we paint kind of a rosy picture when it’s not always so rosy. I think we create better journalists and better human beings if they’re allowed to do things freely.”

Tagged: blog, Blogroll, censorhship, high school censorship, new voices, prior review, recent-news, student speech, Texas

U.S. District Court affirms First Amendment right to complain in rejecting motion to dismiss former student's complaint



A case in Virginia has provided a welcome stand against retaliation for students exercising their First Amendment rights. On March 30, the U.S. District Court for the Western District of Virginia rejected a motion to dismiss by the defendants in Deegan v. Moore, finding that student Jennifer Deegan had been well within her rights to voice complaints about Virginia Western Community College’s nursing program, and that the response of Assistant Dean Melanie Moore and other administrators to issue a misconduct charge against her was a violation of these rights.

The Case

According to the narrative in Deegan’s complaint, which the court relied on in Thursday’s ruling, Deegan’s criticism of the nursing program at VWCC stemmed from her concerns over what she perceived to be turnover problems and a lack of qualified instructors.

Disappointed and frustrated by the program’s teaching standards, Deegan wrote a letter to VWCC’s Board of Trustees about her concerns. Deegan noted that by this point, she had already heard Assistant Dean of Nursing Melanie Moore – one of the defendants – criticize the program, although she refused to continue discussing the issue with a student who raised the topic during a class.

The day after sending the letter, Deegan spoke up in one of her nursing classes, voicing her complaints about pop quizzes and lack of instruction. According to Deegan’s complaint, she voiced these concerns in a non-disruptive manner during a group discussion where fellow students were also raising issues with the program, so that her comments were not a detour from the subject matter of the class.

After this class, Deegan attended a meeting with Dean of Health Professions Carole Graham to discuss her concerns, and scheduled a meeting with VWCC’S President Dr. Robert Sandel, Graham, Moore, and VWCC’s Vice President Elizabeth Wilmer. In her complaint, Deegan notes that it was after this meeting that the defendants – Moore, Graham and Dean of Student Services Lori Baker – “caused or encouraged” the filing of a student misconduct report, charging her with disruption and verbal abuse.

Graham and Barker informed Deegan of the charge in their Sept. 3 meeting, which Sandel, Wilmer, and Moore did not attend.

Six days later, Deegan formally filed a grievance outlining her problems with the nursing program. Among her complaints were that “teachers were bullying nursing students and that student concerns were met with hostility, threats, and disciplinary action.” After a meeting with Wilmer, Deegan's grievance was determined to be unfounded.

A week later, Deegan met with Baker about the misconduct charge. The court record notes that the meeting only came about after Deegan directly asked Baker for one, despite the fact that Baker's investigation into the charge should have included an obligatory meeting. In addition, Baker refused to listen to a recording that Deegan brought with her of the nursing class during which she had reportedly been disruptive.

At some point after that meeting, but prior to her misconduct hearing, Deegan resigned from the nursing program.

On June 6, 2016, Deegan filed a complaint of First Amendment retaliation against Moore, Graham and Baker in U.S. district court, alleging that her criticism of VWCC's nursing program was protected speech and that the student misconduct charge was retaliation from the defendants. The defendants moved to dismiss, arguing that Deegan failed to state viable claims against them and that they are entitled to qualified immunity from paying damages because, even if their actions did violate the law, they wouldn’t have been in a position to know the illegality at the time.

The Right to Complain

In deciding the case, U.S. District Judge Elizabeth Dillon applied the First Amendment retaliation test. Firstly, it asked whether Deegan’s speech was protected by the First Amendment. Dillon rejected the college’s claim that students are protected only if their speech involves matters of public concern. Even if that had not been the case, Dillon added, Deegan’s speech arguably was of public concern, since it involved the quality of public educational services.

“Although Deegan's exact words are not alleged, some of her statements allegedly concerned the quality of education nursing students were receiving at VWCC,” Dillon wrote. “Those statements, which relate to the quality of public education and the training of local health care professionals, could at least plausibly touch matters of public concern.”

Dillon went on to state that the court could not conclude that Deegan spoke in a time and place not intended for such speech:

“Most of these occasions were plainly non-disruptive: three were outside of class in personal conversations or meetings scheduled to discuss Deegan's concerns, and one was a written communication to the Board of Trustees. Although Deegan spoke during a Nursing 238 class as well, she alleges that the statements were not disruptive and that she spoke in context of a larger in-class discussion about the quality of the nursing program.”

Next, the court tackled the defendants’ claim that Deegan has not stated a viable retaliation claim because the alleged retaliatory act – filing the misconduct charge against her – did not adversely affect Deegan's ability to exercise her First Amendment rights. In retaliation cases, the judge wrote, the retaliatory act must go beyond a mere “inconvenience” to the speaker; the college claimed that since Deegan never received any actual disciplinary sanction, the filing of the charge could not by itself be a constitutional violation.

The judge disagreed, finding that just the fact of being brought up on misconduct charges could “chill” the fortitude of a reasonable speaker. However, the judge did agree that Deegan failed to establish any causal connection between Moore and that complaint, so Moore was dismissed as a defendant.

Ultimately, the court found that Deegan had plausibly stated a First Amendment retaliation claim, and that her complaint can continue for consideration.

The important takeaway for all college students, including journalists, is that complaining about the quality of the educational program does not constitute a substantial disruption, and is part of an individual’s protected speech.

This case is also important in drawing clear lines that university administrators can’t cross in using the student conduct system to silence student critics. With this ruling, the court – which denied the defendants’ claim that they are entitled to qualified immunity – made explicit that filing an unfounded disciplinary complaint against a student, even if the student isn't found guilty, violates the First Amendment on the grounds of the intimidation it poses.

A fear of retaliation from administrators remains a prominent concern among student journalists and their advisors, and this ruling marks one of the few recent times where the court has taken the student’s side.

In September 2015, a federal district court ruled against Muscatine Community College student journalists’ request for a primary injunction in their lawsuit against the school’s top administrators for intimidation. The students accused the administrators of harassing them to avoid undesirable news stories about the college, for example by reducing their funding and replacing a full-time advisor with a part-time adjunct instructor.

In June 2016, the San Diego American Civil Liberties Union filed a lawsuit against administrators at UC-San Diego after it cut funding for satirical newspaper, The Koala, along with all student media, apparently in response to The Koala publishing an article mocking students’ desire for safe spaces on campus. The university insisted that the timing was coincidental, and on March 6, 2017, a federal judge dismissed the case.

Deegan’s case, however, seems to demonstrate that taking a stand against retaliation for being outspoken about an institution’s flaws can succeed, so long as a cause-and-effect relationship can be proven. This is only the early stage of the case, and Deegan will still have to prove at trial that the facts bear out as her complaint alleges them -- but at least she will get that chance.

Tagged: blog, Blogroll, court-case, Deegan-v-Moore, First Amendment, First Amendment, First Amendment retaliation, first-amendment, recent-news, U-S-District-Court, Virginia

Student body president at University of Pittsburgh declares support for student newspaper



The student newspaper at the University of Pittsburgh at Johnstown will keep its student government-allocated funding despite student-led efforts to eliminate the paper’s subsidies.

After The Advocate began printing a compilation of student crime citations, an anonymous petition surfaced to cut the entirety of the paper’s print budget – nearly $9,000. The petition, which was presented at a March 14 student government meeting, argued that publishing crime reports was creating a hostile campus environment and hurting future job prospects for named students.

“This policy and practice is creating a hostile environment on campus and could potentially prevent students from seeking employment or admission to graduate school,” the petition read in part.

When the petition was first filed, the university’s humanities division chairman, Michael Stoneham, told the Daily American that he feels student reporters have to be “objective” and take into consideration the emotional distress a report can have on a student.

“To be fair you have to treat all failures as failure ... at the time, I don’t believe it is a reporter’s reason to condemn, malign a person,” he said. “I think that when presenting the record, I think you have to present it that it doesn’t represent particular bias by the reporter, the school.”

However, student body president Kyle Maguire announced on March 22 that he would veto any attempts to cut The Advocate’s funding.

"I definitely want The Advocate here. It's our student newspaper,” Maguire told WJAC, Pittsburgh’s local NBC affiliate. “It's an important student organization on campus.”

According to WJAC, The Advocate editor-in-chief Peijia Zhang said the paper would not stop publishing crime reports despite the public backlash.

"If we do not acknowledge these public records – public criminal records – publicly, we are kind of setting a lower standard,” she said.

The Advocate is hardly the first student newspaper to face threats of funding reduction over controversial coverage. In recent years, papers at Wesleyan University, the University of Redlands, the University of Kansas, and Delta State University, among others, have faced financially based censorship based on coverage.

The American Association of University Professors, the College Media Association, the National Coalition Against Censorship, and the Student Press Law Center in a 2016 report for the Association of American University Presidents outlined the issues of financial censorship for student journalists.

“The knowledge that continued financial support for a journalism program, adviser, or publication may be contingent on pleasing campus authorities imposes a chill on the independence of journalistic coverage that invariably will produce more timid journalism that ill serves the public interest,” the report said.

The report also argued that for student journalism to be at its most effective, whatever entity supplies funding to the paper must be completely separated from any editorial decisions.

“Effective campus journalism requires a source of financial support fully insulated from content-based judgments by those who are the subjects of the journalists’ coverage,” the report said.

Tagged: blog, Blogroll, defunding, petition, recent-news, student newspaper, University of Pittsburgh

Princeton sues to protect admissions documents sought in FOIA request to DOE



Princeton University has filed a lawsuit against the U.S. Department of Education to prevent the release of hundreds of pages of admissions documents being sought under a FOIA request.

The FOIA request was filed on Oct. 27, 2015, by nonprofit group Students for Fair Admissions (“SFA”), an organization that believes that race should play no role – helpful or harmful – in a university’s admissions decisions. The group is seeking documents pertaining to the DOE’s Office for Civil Rights investigation into complaints that the university discriminated against Asian and Asian-American applicants.

The investigation, which was part of a seven-year investigation of Ivy League admissions processes by the OCR, closed in 2015 after finding there was insufficient evidence of discrimination. In a 20-page letter to the university President Christopher L. Eisgruber, OCR wrote that they found that “the University weighed multiple factors in assessing applicants" and that it "treated each applicant as an individual, without making an applicant's race or national origin a defining characteristic,"

The DOE has so far provided SFA with 868 pages of documents under its FOIA request, and anticipated releasing the remaining 861 that same week before Princeton filed its ‘reverse FOIA’ lawsuit on March 17.

The documents include demographic data and other internal policies and practices concerning Princeton’s admissions process. According to Princeton’s complaint, the documents also include “certain individuals’ application packets for admission.” The university argues that the “disclosure of the materials would put the University at a substantial competitive disadvantage to identify, evaluate, and enroll prospective students, as well as potentially discourage applicants from applying to the University in the future if they have concerns about the confidentiality of the materials they submit.”

The DOE had already rejected Princeton’s objections to the release of the documents. On March 1 they asserted in a letter to Princeton that a FOIA exemption designed to protect confidential commercial and financial information “does not apply to any of the materials that the university has produced to OCR.” In the letter they also assured Princeton that they would redact any information that may identify particular candidates.

In an interview with POLITICO, Edward Blum, the director of SFA, said that Princeton’s lawsuit to block the records “suggests that it has something important that they want to hide from the public.”

According to the POLITICO article, Blum, who was one of the advocates backing Abigail Fisher in her high-profile suit over Texas' admissions policies that made it to the Supreme Court, said that his organization thinks these documents could be the starting point for a new lawsuit.

SFA has ongoing lawsuits against Harvard and the University of North Carolina at Chapel Hill, accusing them of racial discrimination against undergraduate applicants. In November 2014, SFA filed a complaint against Harvard alleging that the university uses racial “quotas” to disadvantage Asian-American undergraduate applicants. They filed their complaint against UNC that same month, alleging that white and Asian-American applicants were disadvantaged in favor of students of other races.

In a statement to SPLC, Daniel Day, a spokesperson for Princeton University, wrote, “The University filed the lawsuit to honor the promise of confidentiality we make to all applicants and their families. This is important prospectively as well as retrospectively, so future applicants will be willing to provide materials to us knowing the confidentiality of their materials will be respected, and so previous applicants will have their personal information and materials protected.”

Tagged: blog, Blogroll, FOIA, princeton, recent-news

The FERPA Four: Help decide who’s the national champion of college secrecy



Four teams face off, only one will prevail. We're asking you, the defenders of student press and avengers of egregious transparency violations to vote on the most opaque university of 2017.

And now, the contenders:

1. University of Kentucky

The Wildcats enter the FERPA Four as the 800-pound gorilla in the room, having sued the Kentucky Kernel, the college’s own student newspaper, last year after refusing to turn over Title IX investigation documents. That case has only gotten messier: two of the Title IX complaintants entered the case on the side of UK, and Kentucky Attorney General Anthony Beshear jumped into the fray on the side of the Kernel.

The conflict has spread all across the state. The University of Western Kentucky has now sued the College Heights Herald, its student newspaper, for the exact same reason. WKU and Kentucky State University also sued the Kernel for its records requests from those institutions.

And that’s all just within the past year. Reaching even further back, the university has stopped the Kernel from distributing newspapers at football tailgates. They’ve also concealed victims’ names on campus police reports, denied requests for communication records related to former basketball player Nerlens Noel, and refused to release the name of a basketball player who was suspected of committing a rape at a dorm. Sheesh.

2. University of North Carolina

The Tar Heels come in as a strong 2-seed in this tournament as athletic scandals and media lawsuits have piled up on them over the years. Last year, the Daily Tar Heel joined multiple media outlets in filing a legal complaint for the investigation records of students who have been investigated for allegations of sexual misconduct.

In 2014, the DTH joined a lawsuit to obtain records of staff disciplinary actions in the wake of a massive academic scandal involving the university’s athletics department.

In keeping with its deep tradition of FERPA-abuse “excellence,” UNC was smacked down by a state-court judge in a 2011 ruling for trying to categorize coaches’ cellphone records, athletes’ parking tickets and other non-educational documents as FERPA records.

3. Ohio State University

Not far behind North Carolina is Ohio State University, home of the Buckeyes. It’s been a challenging place for journalism for a long time; in 2010, campus police detained, but ultimately didn’t file criminal charges against a photojournalist for The Lantern student newspaper. The university police justified the detainment by alleging the photographer’s press badge was “fraudulent” because it was signed by a student editor and not the paper’s faculty adviser.

That’s not all. In 2011, ESPN sued the university for violating records law when OSU denied several open records requests. At the time, ESPN was investigating the OSU football program’s infamous “Tattoo-gate” scandal involving athletes accused of receiving forbidden gifts under the regime of head coach Jim Tressel. Ohio State managed to convince an appeals court that essentially all of Tressel’s records – even emails he exchanged with a booster -- were “education records” exempt from disclosure.

It’s not just students who have trouble getting answers from Ohio’s flagship institution. The Columbus Dispatch recently reported, in a story released during Sunshine Week, that OSU routinely ignores, delays or claims unfounded exemptions to frustrate public-records requests that other comparable colleges readily fulfill.

4. University of Central Florida

The nation’s second-largest public university is an upstart in the game of public-records obstructionism, without the pedigree of more-established secrecy powerhouses. But the Knights have made a name for themselves in a short period of time. Last year, KnightNews.com, the campus’s digital newspaper, filed two lawsuits against the university for breaching open meetings and records laws.

The university’s aggressiveness in fighting to conceal student-government records that other colleges routinely make public – lawyers for UCF have repeatedly demanded that a tiny student-run news outlet pay the university’s bankruptingly large legal fees – earned the editors of KnightNews national recognition as winners of the 2016 College Press Freedom Award.

In yet another lawsuit in 2014, a judge ruled that the university did not err when it withheld fraternity discipline records, citing FERPA -- even though records of disciplinary cases against Greek houses have been harmlessly released in other states with no FERPA consequences.

Tagged: blog, Blogroll, FERPA, recent-news

Sunshine Week Roundup: Government transparency dustups abound in the Sun Belt



This Sunshine Week, there are a number of bills out there affecting government transparency across the Sunbelt. With a storm brewing in Arkansas and an effort to further open records exemptions in New Mexico, more and more states are working to move government further into the shadows.

The news isn’t all bad. Texas has put forward an illuminating set of legislation aiming to open up government contracts with private businesses and nonprofits that act on behalf of the government with taxpayer funding.

Arkansas

The Arkansas Democrat-Gazette reports 10 anti-transparency bills are on their way through Arkansas’ legislative process, running the gamut from state Capitol police records, videos depicting a police officer’s death, emergency plan documents for the state corrections system, and more.

Democrat-Gazette projects editor Sonny Albarado said the passage of any of this legislation will make it harder for Arkansas journalists to do their jobs. Albarado emphasized several pieces of legislation as especially concerning.

Senate Bill 373 would allow state agencies such as schools and universities to shield documents from open records requests under attorney-client privilege if counsel had seen or commented upon the documents. Another bill would let universities waive the state’s three-day deadline for responses to open records requests deemed “unduly burdensome,” essentially allowing them to slow-roll journalists indefinitely.

Another bill would shield school security officers from open records requests about their hiring and equipment. Gov. Asa Hutchinson has said he supports open records in the past, but as governor he will keep an “open mind” to any legislation that comes his way.

Albarado said the chances of any of the bills passing are good, and don’t bode well for transparency in the state.

“It’ll make the public’s right to know what their government’s doing a lot weaker than it already is,” Albarado said.

One bill, HB1665, looks ready for passage to Hutchinson’s desk. The bill would allow businesses to sue whistleblowers who have uncovered wrongdoing on business property outside of employees performing their job. This would include anyone who “records images or sound occurring within an employer's commercial property and uses the recording in a manner that damages the employer.”

As VICE reports, this would prohibit the kind of undercover investigative journalism that has spurred change in other states.

Texas

Meanwhile, Texas is looking to reclaim their mantle as one of the most transparent states in the country. Two sets of companion bills sponsored by Sen. Kirk Watson, an Austin Democrat, and Rep. Giovanni Capriglione, a Republican from Southlake, aim to patch up some holes that have opened up in Texas’ transparency laws over the years.

Senate Bill 407 and House Bill 792 aim to patch up a loophole opened up by the state’s Supreme Court in Boeing v. Paxton, a 2015 decision that “allows all sorts of contracts the government holds with private businesses to be sealed from public view,” according to Kelley Shannon, the president of the Freedom of Information Foundation of Texas.

In an incident that took transparency advocates’ breaths away, the city of McAllen refused to disclose how much it paid Enrique Iglesias to play a show at a holiday parade, which reportedly cost the city $583,000. Attorney General Ken Paxton’s office certified that positively loco decision as legal.

The other pair of bills from the Watson-Capriglione alliance, SB 407 and HB 792, look to address another 2015 ruling that Shannon writes “prevents the public from viewing the financial books of non-profits that are supported by taxpayer money and act in a government agency fashion.” That could have consequences for student journalists covering university foundations, which are technically private but do work for a public body.

New Mexico

The Albuquerque Journal reports a number of bills dealing with public transparency are moving around in the New Mexico legislature, with varying degrees of success.

House Bill 10, according to the Journal, would create a “public accountability board” responsible for investigating ethics complaints within the state government. Ironically, critics say it would operate largely behind closed doors.

Another piece of legislation, House Bill 267, would protect proprietary research conducted at universities from open records requests, which has been described as a defense against corporate espionage (but may also be motivated by politically charged requests made across the country in recent years for the records of climate-change researchers). A similar bill in North Dakota was endorsed by that state’s newspaper association.

One concerning bill was tabled this session, but open government advocates should keep an eye out for similar attempts in the future. Senate Bill 93 would have kept the names of government job applicants private. We don’t have to remind you that public university executives are government employees who often draw hefty salaries.

Previously

This Sunshine Week roundup is brought to you by the letter “T” and by the last time we had to do this. In case you missed it, Indiana’s House Bill 1523, which would implement an hourly search fee for records requests, has cleared the House and is now making its way through the state Senate.

Colorado’s Senate Bill 17-040, which would require agencies to release data in accessible digital formats, has made it through the State, Veterans, and Military Affairs Committee and referred to Appropriations..

Florida House Bill 351, which makes information on applicants to public university executive positions private and tacks on exemptions for university executive search committee meetings from public meetings laws, has advanced from Post-Secondary Education to the Oversight, Transparency, and Administration Subcommittee.

In North Carolina Senate Bill 77, imposing a fine for failure to comply with open records laws, remains in the Senate Rules Committee without action.

Finally, the Kansas bill seeking to limit the fees agencies can charge to search records, Senate Bill 86, also remains in committee with no scheduled calendar dates.

Tagged: blog, Blogroll, open records, open-government, recent-news, sunshine laws, Sunshine Week

With open records, UC-Berkeley paper show how a little patience can yield big results



Correction: We corrected the quote relating Alex Yoon Hendricks interview with Professor Emeritus Eric Gans and subsequent loss of access. The managing editor mistakenly thought UC press relations had directed them not to contact Gans, but it was Gans who began directing requests to his attorney.

Last week, the Daily Californian at the University of California-Berkeley dropped a bombshell report: about one third of University of California system employees found to be in violation of sexual misconduct policy between 2013 and 2016 were still present on UC campuses.

It took almost a year to get to this point.

Last year, the University of California-Berkeley campus was rocked by the revelation that 19 campus employees had violated sexual misconduct policies since 2011, including the dean of the school of law, Sujit Choudhry.

The newspaper decided to take it a step further: in April, then-reporter Austin Weinstein submitted California Public Records Act requests for Title IX investigation documents from all ten UC institutions.

“We knew we could get them because they had released those type of documents before, so we expanded our request to the entire UC system,” Weinstein said.

That’s a big undertaking considering the sheer size of the system, one of the largest and most prestigious in the country. Perhaps unsurprisingly, it took a while for the university to compile and vet the documents.

“We kept receiving notice from the system-wide public record office saying that they would eventually release the documents to us but they kept deferring the date to which they would do that, so they would say ‘we intend to release these documents in November, then November came and they would say ‘we need until January,’” said managing editor Andrea Platten. “At a certain point, we’re just like, ‘we’re never going to get these.”

Eventually, the student journalists got the documents they asked for. On Feb. 28, UC released the records, totaling 113 sexual misconduct investigations of UC faculty and staff.

Different universities redacted varying amounts of material from the documents, ranging from fairly intact investigations to a nightmarish piece of paper that resembled a bar code:

However, Platten said she understood why the campuses might have taken so long to release the documents in bulk. She also said she was proud of how her staff, some of whom asked their professors for accommodations, tackled the project.

“We were able to pool our resources so efficiently because people were just so interested in covering this revelation of documents. Tons of people rose to the occasion, decided they wanted to help cover it. We just had tons of help and things just went by pretty quickly considering how many papers we had to go through,” Platten said.

The project is ongoing, including data reporting on how the UC campuses presented their investigations, details on how UC has changed its policies under President Janet Napolitano and a statement from the editorial board.

One outstanding piece of reporting to note is an interview with a University of California-Los Angeles professor emeritus who had violated the sexual misconduct policy, who blames faculty members “who are women, by the way” for his case. Platten credits the scoop to a Daily Cal reporter going directly to the source instead of through the university.

“Our reporter, Alex Yoon Hendricks just called him up … it just felt like forever that she was talking to him," Platten said. After that initial call and subsequent story, Gans began sending requests through his lawyer.

However, not all of the lessons learned in the project came easily. The Daily Cal erroneously attached photo of the wrong professor when the paper published the aforementioned interview. In a formal apology, editor-in-chief Ritchie Lee said “we will use this unfortunate accident as a teaching moment to ensure that our fact-checking processes prevent such grave errors in the future.”

After the documents came out, other newspapers in the UC system have been quick to contact the Daily Cal and own the story on their campuses. The Daily Bruin at UCLA contacted the Daily Cal and has begun localizing coverage of the document drop to their campus, for example.

Platten feels good about the Daily Cal’s place on point for this story.

“We’re the campus newspaper on the flagship UC campus, so we feel there’s a responsibility to report news like this when the implications are so wide reaching, it affects an entire system of which the Berkeley campus is a part of. And we feel that that is of public interest.”

Tagged: blog, Blogroll, California, open records, recent-news, Title IX

California Supreme Court opens personal communications on public matters to open records requests



The California Supreme Court on Thursday ruled unanimously that employee writings conducted about public business on personal accounts are subject to the state Open Records Act, a ruling that can aid in reporting on public schools and colleges.

The case originated in 2009 when California resident Ted Smith requested 32 categories – including private emails and text messages – of open records from the city of San Jose concerning a redevelopment effort. The city turned over communications made on government telephones and emails but none of the employees’ personal accounts, saying private communications are not open records since the city does not maintain or control the documentation.

Smith then sued, arguing that communications about government business are public regardless of how they are created or stored. A trial court ordered that the records be disclosed, but the California Court of Appeal overturned the order.

Justice Carol Corrigan in the Supreme Court decision described the issue of private communications between public employees as “narrow”.

“Are writings concerning the conduct of public business beyond [the California Public Records Act’s] reach merely because they were sent or received using a nongovernmental account? Considering the statute’s language and the important policy interests it serves, the answer is no,” she wrote.

Several states have seen similar disputes in recent years over communications made on non-governmental accounts. In 2011, Illinois Attorney General Lisa Madigan ruled that communications about government business on personal devices were subject to open records law. The ruling was appealed to the state appellate court, which partially agreed with Madigan, agreeing that emails and texts on personal devices sent during public meetings were subject to freedom of information laws.

More recently, Kansas lawmakers in July changed the state open records law to include “any recorded information, regardless of location, which is made, maintained or kept by or is in the possession of any public agency.”

The change was prompted by reporting in The Wichita Eagle that revealed the state budget director used a private email to send advance copies of Gov. Sam Brownback’s proposed budget to lobbyists prior to its public release. Brownback was also found to have used a private e-mail server to communicate with staff members.

For student media, the California ruling is another win for transparency and open government. In years past, the SPLC has reported on various court rulings that clarify when public officials’ emails are and are not subject to open records laws.

The ruling could also provide precedent for obtaining records in university presidential searches that are not open to the public. SPLC has previously reported on the quest for student journalists to obtain records in closed presidential searches, even detailing attorneys telling search committee members to avoid written communications that could be subjected to open records laws.

While the California ruling is not universal, it does provide yet another instance of a court declaring that public officials cannot hide behind private accounts to subvert freedom of information laws–a win for journalists everywhere.

Tagged: blog, Blogroll, California, open records, recent-news