Access to Information
For many writers, conducting their craft depends on getting access to information in the form of interviews, documents, images, and site visits. Although it would be nice for writers if they could legally compel anyone to provide information, the general rule is that individuals and private entities have no obligation to disclose information to other private parties. For example, if the Chairman of General Motors declines your invitation to be interviewed, there is not much you can do about it—except, of course, note that fact in your work.
This does not mean that writers are always precluded from obtaining the information that most individuals and businesses would prefer to keep hidden from public view. Even though private parties cannot compel others to disclose information, the government has substantial power to collect information from the parties it regulates and is also required to make most of it available to the public. For instance, while a publicly traded corporation would most likely decline a request from a writer to describe its most significant litigation matters, it is required by law to disclose this information to the US Securities and Exchange Commission in periodic reports. These reports are available to the public. Similarly, most industries are reluctant to disclose information about the pollutants they release into the environment, but they are required by law to provide such information to the US Environmental Protection Agency. State and local agencies also collect sensitive information from private entities. Knowing how to use federal and state laws regarding public disclosure can, in many cases, offer an excellent means of obtaining information.
Another aspect of getting information is the right to access sources and laws that govern how you make a record of your information. For example, if your writing practice requires you to interview people who are not interested in being interviewed, you might want to know how persistent you can be in seeking information from them before you cross the line and become vulnerable to legal action. Similarly, when is it acceptable to walk onto someone else’s property to investigate a scene or witness an event taking place on that property? Writers who use tape recorders and similar devices need to know what laws govern the recording of conversations either in person or by telephone. Understanding the legal aspects of collecting and retaining information is important, because failing to comply with the law in this area can inadvertently get you into trouble, as well as keep you from gathering important facts.
THE FREEDOM OF INFORMATION ACT
The Freedom of Information Act (FOIA), enacted in 1966, requires federal agencies to make their records available to the public, with some limited (but significant) exceptions. One of the reasons the FOIA can be a powerful research tool is that records held by federal agencies can provide significant information about entities whose activities are subject to the jurisdiction of those agencies. For example, the Chicago Tribune used the FOIA to collect information to prepare a story about the increase in illness outbreaks associated with school food programs. Specifically, the newspaper requested the computer files on all US Department of Agriculture inspections of meat plants between 1997 and 2000. Using statistical software to analyze 80 million inspection records, the Tribune determined that meat plants that sold to the National School Lunch Program had a significantly higher rate of violations than the meat plants that did not. Considering the sensitive nature of the subject, this information would have been almost impossible to collect from private sources.
The Freedom of Information Act can also be used to gather information about individuals. A good example of such a use of FOIA is the way B. G. Burkett and Glenna Whitley used it to gather information for their book, Stolen Valor: How the Vietnam Generation Was Robbed of Its Heroes and Its History. By using FOIA to obtain the publicly available portions of military records for many prominent activists who claimed to have been veterans of the Vietnam conflict and to be suffering from post-traumatic stress syndrome, the authors discovered that many had never served in Vietnam or been in the military at all. This information served as the foundation for the authors’ premise that the media has inaccurately portrayed Vietnam veterans in a negative manner. Absent access to the information provided through the FOIA, it is doubtful the authors could have supported their premise with the degree of credibility they established.
Using the FOIA, you can access not only paper records, but also film, tape, and electronic files. The FOIA requires that federal agencies post guidelines on their websites on how to make requests under the FOIA. It also requires agencies to make frequently requested records available in electronic reading rooms on websites.
Agencies are permitted to charge for the copying and time needed to respond to requests, although the first two hours of search time and 100 pages of copying are free of charge to noncommercial requesters. Persons who are affiliated with an educational or noncommercial scientific institution whose purpose is scholarly or scientific research, or who are representatives of the news media, are entitled to a waiver of all search and review fees. In addition, agencies may waive fees if the material requested is likely to contribute significantly to public understanding of the operations or activities of government and is not primarily for the commercial benefit of the requester.
In theory, the use of the FOIA should be straightforward. Although some agencies have set up formal procedures for making requests, all the Act requires is that the requester make the request in writing and allow the agency twenty working days to respond. In reality, most agencies take far longer than twenty days and often fail to provide all the information required by law. The remedy for an agency’s failure to respond is to file a lawsuit in federal court. Although plaintiffs who prevail in such cases are eligible to recover their attorney fees, bringing an action is time-consuming and often impractical.
Scope of the FOIA
It is important to understand that the FOIAs scope is limited to the records kept by federal agencies. For example, it does not apply to records held by the US Congress, federal courts, state and local government agencies, or private persons and entities. However, many congressional and court records are publicly available, and all of the states have public disclosure laws that grant the public the right to access—with some limitations—state records.
There are nine statutory exemptions to the FOIA that relate mostly to national security, personal privacy, and proprietary commercial information, such as trade secrets. The following are the nine specific exceptions:
1. National security information concerning national defense or foreign policy, provided that it has been properly classified in accordance with government procedures
2. Records related solely to the internal personnel rules and practices of an agency
3. Information specifically exempted by statute from disclosure
4. Trade secrets and commercial or financial information (that is privileged or confidential), obtained from a person
5. Interagency or intra-agency memoranda or letters that would not be available by law to a party in litigation with the agency
6. Information about individuals in personnel, medical, and similar files, when the disclosure of such information would constitute a clearly unwarranted invasion of personal privacy
7. Records or information compiled for law enforcement purposes, but only to the extent that production of such law enforcement records or information could reasonably be expected to:
• interfere with enforcement proceedings;
• deprive a person of a right to an impartial adjudication;
• constitute an unwarranted invasion of personal privacy;
• disclose the identity of a confidential source and information furnished by a confidential source;
• disclose techniques, guidelines, and procedures for law enforcement investigations or prosecutions, if such disclosure could reasonably be expected to risk circumvention of the law; and
• endanger an individual’s life or physical safety
8. Matters that are contained in or related to examination, operation, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions
9. Geological and geophysical information and data—including maps concerning wells
When a requested document contains some information that falls under an exemption, the FOIA requires agencies to release the nonexempt portions. This is important, since it prohibits an agency from withholding an entire document merely because parts are exempt.
When making FOIA requests, it is important to be clear in your communication and to be reasonable in how you deal with the agency. The request should be made in a letter sent to the FOIA officer at the agency most likely to hold the records. While the Department of State and the Central Intelligence Agency have centralized FOIA offices, most agencies have designated FOIA officers assigned at each unit. For example, if you are seeking the environmental compliance records of a business located in Alaska, you should submit the request to the FOIA officer at the regional office of the US Environmental Protection Agency in Seattle, Washington, which oversees the agency’s Alaskan operations.
You should not submit the request to the headquarters office in Washington, DC, which handles matters of a national scope.
A FOIA request letter should state that it is a request under the Freedom of Information Act, 5 USC §552, to ensure that the person receiving it will understand that the agency has a legal obligation to respond.
The information sought should be described clearly and with specificity. Providing information such as the dates, authors, recipients, subjects, or titles of documents sought will help the agency expedite the request. Vague and overly broad descriptions are likely to impede efforts to obtain the requested materials. Be sure to ask for a fee waiver if you are eligible.
Most agencies have specific guidelines for making FOIA requests that can be obtained from their websites. However, federal agencies are required to comply with FOIA requests irrespective of whether the agency guidelines are followed. A template for a FOIA request letter is provided below and can be used for noncommercial requests. In the event the information is for commercial use, delete the paragraph regarding the fee waiver.
FOIA Officer
[Name of Agency]
[Address of Agency]
Re: Freedom of Information Act Request
Dear Sir or Madam:
This is a request made pursuant to the Freedom of Information Act, 5 USC §552. I request that a copy of the documents containing the following information be provided to me:
[Describe the documents or information sought as specifically as possible.]
[Alternate provisions when information is requested for noncommercial use depending on the status of the requester are:
(personal) I am an individual seeking information for a noncommercial use and request that fees associated with complying with this request be waived.
(news media) I am a representative of the news media affiliated with (name of publication, radio station, or television station) and make this request as part of news gathering and not for a commercial use.
(scientific or academic) I am affiliated with an educational or noncommercial scientific institution, and this request is made for a scholarly or scientific purpose and not for a commercial use.]
I request a waiver of all fees for this request because disclosure of the requested information is in the public interest. Specifically, the information is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in my commercial interest for the following reasons:
If a fee is assessed, I am willing to pay up to a maximum of $ _______. If you estimate that the fees will exceed this limit, please inform me first.
Thank you for your consideration of this request.
[Signature]
FOIA and Privacy Issues
A significant and not altogether clear type of FOIA exemption deals with personal privacy. The government maintains a great deal of personal information about the lives of most citizens, which can be relevant to persons writing about matters of public interest. Although Congress included the privacy provisions in FOIA to protect the legitimate interests of individuals, there has been a growing concern that government agencies are improperly using these exemptions to justify the withholding of information.
Congress enacted the Privacy Act of 1974, amending the Freedom of Information Act in order to protect the privacy of information about people contained in records kept by federal agencies. It prohibits disclosure of personally identifiable information without the consent of the person affected unless the disclosure was permitted by twelve statutory exceptions. The Act also allows individuals to get, and then amend, their own records along with other provisions. Disclosure is permitted for certain US governmental statistical purposes, routine uses by a US government agency, archival purposes, law enforcement purposes, congressional investigations, pursuant to court orders, and other limited purposes.
In recent years, about two-thirds of FOIA denials have been based on exemptions relating to privacy. The most significant expansion of the privacy exemptions occurred in 1989. The US Supreme Court ruled that whether disclosure of a private document is warranted depends on the nature of the requested document, as well as its relationship to FOIA’s central purpose of allowing public access to official information that sheds light on an agency’s performance of its statutory duties. Under this holding, the disclosure of information about private citizens can be denied unless the requester shows that it will reveal something material about an agency’s conduct.
In World Publishing Co. v. U.S. Dept. of Justice, a Tenth Circuit case, a newspaper publisher appealed from an adverse lower court ruling denying disclosure under the FOIA of booking photographs (mug shots). Finding that disclosure of the photos was unlikely to contribute significantly to the public’s understanding of how a governmental agency was doing its job and that the implication of criminal activity associated with mug shots was an unwarranted invasion of the privacy of the arrested parties which outweighed any public interest in disclosure, the appellate court upheld the denial. The same conclusion was reached in Detroit Free Press Inc. v. U.S. Dept. Of Justice, a Sixth Circuit case, overruling a ten-year-old determination to the contrary, finding no privacy interest—ever—in such photos, recognizing the fact that such photos were taken in very humiliating and embarrassing circumstances and ruling that each case would need to be determined on its own facts in the future.
A good example of how courts balance privacy against public access to government information can be seen in the litigation commenced for the purpose of obtaining the death scene photographs of Vincent Foster. A White House deputy counsel and close friend of President Bill Clinton, Foster was found dead of a gunshot wound in a Virginia park. The local law enforcement agency deemed the death an apparent suicide. However, in light of the attention given to the allegations of scandals committed by the Clinton administration, Foster’s death became the subject of five separate official investigations and several private ones. There were numerous FOIA requests made to obtain the records held by the Federal Bureau of Investigation, the Office of Independent Counsel, and the National Park Service.
Although many of the records were provided, the National Park Service withheld ten color photographs of Foster’s body taken at the scene of his death, contending that they were exempt on the basis of their exceptional sensitivity and potential to cause pain to Foster’s surviving family.
The FOIA establishes a higher threshold for determining the entitlement to obtain information with regard to privacy issues. In the normal FOIA request, the requester does not have to provide reasons for wanting the information. However, when seeking information that pertains to the private affairs of individuals, writers should be careful to explain the relevance of the information they seek and should provide some sort of evidence as to why the information is needed to uncover official misconduct.
IN PLAIN ENGLISH
The exact nature of the evidence required to show that the public need for the information overcomes the privacy interests associated with exempting its disclosure is not defined.
Once a request involves a privacy issue, the government must consider whether a public interest is involved. To enhance the chance that your request will be fulfilled, it is important for you to make clear how the disclosure would benefit the general public and how the information would shed light on an agency’s performance of its statutory duties. Should the government withhold the information on privacy grounds, it can sometimes help to renew the request and ask that the government redact or delete the identifying information in order to protect the privacy interests at issue.
In 2011, the Unites States Supreme Court in FCC v. AT&T, Inc. confronted the issue of whether, for purposes of FOIA, corporations were entitled to the same privacy protections that individual people were with respect to the disclosure of law enforcement records. The court ruled that they were not. Only individual people were entitled to this privacy, as only people were entitled to privacy protection with respect to their personal and medical information, but that corporations were entitled to maintain the privacy of trade secret, commercial, and financial information.
What to Do If Your Request Is Denied
In the event an agency denies your FOIA request, you have the right to appeal to the courts. Agencies denying a request are required to provide a written response describing the reasons for the denial, names and titles of each person responsible for the denial, and the procedures required to invoke judicial assistance.
The general rule when dealing with government agencies is that you must give the agency an opportunity to correct its errors through administrative review or appeal processes before you can file a judicial action to compel performance. This is known as the doctrine of exhaustion of administrative remedies. However, the FOIA treats an agency’s failure to comply with the time limits for responding to a request as a constructive exhaustion of administrative remedies. If an agency does not respond within twenty working days (as required by FOIA), the requester may seek immediate judicial review without the necessity of filing an administrative appeal. Because it is common for agencies to not meet the statutory time limits, in many cases, it is possible to file a judicial action without waiting to see the response. This approach is not justified in most routine cases, but could be an effective way to compel compliance with the FOIA when the requester believes it likely that the agency will not respond substantively.
If the agency responds to the FOIA request before a judicial action has been filed, the FOIA requires that the requester administratively appeal a denial and allow the agency at least twenty working days to decide the appeal before the requester can commence a lawsuit. Some agencies have formal rules that govern to whom the appeal must be filed and what information must be provided. In such cases, a request for an appeal will not be deemed received if the requester does not follow those regulations. Should the agency fail to decide the appeal within the twenty working days or decide the appeal against the requester, then the requester is legally entitled to file a lawsuit to compel compliance.
Any FOIA lawsuit can be filed in the District of Columbia, but filing outside that jurisdiction requires there be some connection between the FOIA request and that jurisdiction. In most cases, the connection can be as simple as the jurisdiction in which the requester resides. However, filing suit in a jurisdiction in which the agency maintains a regional or local office requires that a substantial amount of the activity related to the request took place at those offices.
What the Court Can Do
Whether an agency has improperly withheld records most often depends on whether an exemption applies to the documents at issue. Other common issues include whether any other responsive records exist or whether the agency has released all responsive records to the requester. If the court finds that documents have been improperly withheld, it will order the agency to release them.
Another important FOIA provision allows the trial court to award reasonable attorney’s fees and litigation costs when the requester has substantially prevailed in the case. This award is limited to fees and costs incurred in litigating the case brought pursuant to the FOIA, and does not apply to costs or legal services rendered at the administrative level. In deciding whether to award fees, the court will consider first whether the plaintiff is in fact eligible for an award of fees and costs, and second whether the plaintiff is entitled to the award.
Plaintiffs (requesters) are generally found eligible as long as they actually incurred attorney fees. Parties representing themselves, even if they are attorneys, are generally ineligible to recover fees for their labor—although they can still recover costs.
Entitlement is evaluated according to four factors:
1. the public benefit derived from the case;
2. the commercial benefit to the complainant;
3. the nature of the complainant’s interest in the records sought; and
4. whether the government’s withholding had a reasonable basis in law.
Keep in mind that even if a plaintiff is found to be eligible and entitled to recover attorney fees, the actual award of fees and costs remains within the discretion of the court. In most instances, it will be unlikely that a court will award attorney’s fees in the absence of a judgment in favor of the plaintiff or a court-ordered consent decree.
Plaintiffs who settle an FOIA case after the court orders the agency to release documents but before the court rules on the attorney fees request will usually lose their right to request an award of such fees. From a practical standpoint, plaintiffs in FOIA cases should negotiate the recovery of attorney’s fees into any settlement, and should insist that the court consummate the settlement in the form of a consent decree.
FOIA requestors sometimes need to demonstrate great patience and persistence and seek redress in court before getting what they want. This was demonstrated in the case of Coleman v. DEA, in which an author made a FOIA request to the Drug Enforcement Administration asking for records concerning the government’s regulation of a drug. Although federal agencies are supposed to respond to such requests within twenty days, the DEA took over sixteen months to respond in any way and then responded by denying the request because the author had not paid what it considered the right amount for a processing fee. The author appealed the fee determination, arguing that he was not a commercial requestor, that he was a published author of academic and technical materials, and that the information would contribute to the public’s understanding of how the agency enforced the Controlled Substances Act. It took seven more months before the Department of Justice sent the request back to the DEA for reconsideration. After waiting another four months and still hearing nothing, the author sought help from the lower court. Even after the case was filed, the DEA still refused to eliminate or reduce the fee it wanted and refused to give him the requested documents. The lower court then refused to order the DEA to grant his request, saying that he had not paid the fee or waited for the DEA to make a determination on reconsideration before he filed his case. The appeals court ruled that because the author had already waited almost two and a half years and because of the “extended and inexcusable agency delay” that he was entitled to come to court for help when he did. The case did not end there, however; the appellate court sent the case back to the lower court to reconsider its decision. Since there were no more reported decisions on this case, it is unknown whether the author ever got his documents.
STATE PUBLIC INFORMATION LAWS
Individual states have their own public disclosure laws. In Bainbridge Island Police Guild v. City of Puyallup, an author sought disclosure, under Washington state law, of police investigative reports pertaining to a case in which a woman alleged that a police officer sexually assaulted her. The reports found the claims to be unsubstantiated and the officer claimed privacy rights in his identity. After analysis, balancing the interest of the public in disclosure, including information about how the complaint was handled, and the officer’s right to privacy, the court ordered production of the report with the officer’s name redacted. As can be seen, many of the same exceptions and analyses that apply in FOIA cases also apply under these state laws.
Many states also have open meeting laws that allow members of the public to observe certain kinds of government meetings. These laws are commonly referred to as sunshine laws or open records laws. They are mostly modeled after FOIA, and typically require that records maintained by state, county, and city governments be made available to members of the public for inspection and copying, subject to some limited exemptions. The exemptions tend to protect the same kinds of interests that underlie the exemption from disclosure under FOIA, but are more related to state matters, such as student records at public schools.
The exemptions under state laws can sometimes be narrowed or broadened, depending on the interests involved and the wording of the state statutes. For example, a county in Arizona passed an ordinance that required nude dancers to obtain work permits. The applications for the permits required the registrants to provide the county their real names, addresses, telephone numbers, and previous aliases. Because of this, a commercial establishment that hired such dancers challenged the ordinance on the grounds that it unconstitutionally interfered with their free expression. The information was available to the public under the state public records law, and thus could subject the dancers to unwelcome harassment and stalking. The court refused to strike down the ordinance as unconstitutional, but did hold that the personal information in the nude dancer work permits cannot be revealed under Arizona’s open records law.
Most open meeting laws do not provide the public with the right to ask questions at meetings, but do allow citizens to observe the proceedings and provide reasonable comment. The typical open meeting statute describes the kinds of meetings that are open to the public and mandates that any person is permitted to attend any meeting, with the exception of executive sessions held to discuss sensitive matters, such as employee discipline, litigation, and security. Other typical requirements include providing prior notice of meetings to the public and a requirement to maintain minutes of meetings. These statutes generally encompass those meetings that are held for the purposes of briefing, discussion of public business, formation of policy, or the taking of any action by a public body. Examples include the meetings of planning commissions, school boards, and public library trustees. Open meeting laws do not, however, allow access to all meetings in which state business is conducted. For example, they do not encompass informal meetings of agency staff held in the routine course of their duties.
ACCESS TO PEOPLE AND PLACES
Being able to conduct interviews is an important way for writers to obtain information, and being able to obtain access is critical for many kinds of writing. Just because someone needs information for a writing project does not necessarily give them any special legal right of access. In other words, writers must obey the same laws that apply to the general public.
Writers also need to be aware that property owners are free to place express or implied limits on what takes place when they allow writers to enter their premises. For example, writers can generally assume that a restaurant owner will not object to a writer inviting and interviewing a person over lunch, because these kinds of activities are compatible with the nature of the restaurant business. It would, however, be unreasonable to assume that a restaurant owner would tolerate your uninvited and unwanted attempts to interview a celebrity patron that you encountered by chance.
In the event you encounter someone in a public place, you are free to ask questions, provided that you do not persist to an unreasonable extent if the person indicates that he or she does not want to be interviewed. The line between appropriate and inappropriate persistence is not always clear, but repeatedly asking questions in the face of objections from a clearly unwilling subject can violate privacy rights (and possibly criminal laws directed against harassment and disorderly conduct). Extreme efforts to pursue unwilling individuals for interviews may even run afoul of stalking statutes. Many states have passed laws that make it a crime to repeatedly engage in activities such as following, surveying, and harassing, with an intent to either harm a person or cause a material level of fear or emotional distress.
Misrepresentations
One aspect of interviewing that writers need to be careful about is misrepresenting the reasons why they want to interview a person. Irrespective of the ethical ramifications, falsely representing one’s purpose for requesting an interview may (depending on the circumstances) invalidate the subject’s consent and expose the writer to liability for fraud or invasion of privacy. The doctrine of fraud is somewhat technical, and succeeding on a claim requires a party to prove the following elements:
• there was a representation of a material fact
• the falsity of that representation
• intent to deceive
• a justifiable reliance upon the misrepresentation by the party deceived, which induces him or her to act thereon
• injury to the party deceived as a result of his or her reliance on the misrepresentation
All these elements can be subject to subtle legal nuances, and it is not always easy to discern when or how they will be applied to a particular set of facts.
This doctrine was used when two undercover reporters were hired as food workers in the meat departments at two Food Lion supermarkets. Although the reporters worked at Food Lion supermarkets for only a short period, they gathered a considerable amount of information about unsanitary meat handling practices, and helped produce a Prime Time Live broadcast that was sharply critical of Food Lion. The supermarket chain sued on the grounds that it had been defrauded, because the employment applications had not been completed by the reporters with the intent to work as bona fide employees of Food Lion.
When interviewing a subject, you should also be careful not to affirmatively misrepresent that you will make or refrain from making particular statements and then fail to live up to your end of the bargain. For example, if you told a celebrity that you intended to write a favorable magazine article when you intended the opposite, it would be improper to elicit and publish private facts that would tarnish the celebrity’s reputation. This does not mean that you are required to tell a person ahead of time that you may be writing something they will find unpalatable. You can even engage in a bit of flattery if that encourages the subject to open up. But if you make a false promise to induce the person interviewed to say something he or she would not have otherwise said, you may be exposing yourself to potential liability.
Obtaining access to places in order to view scenes and events is governed by property laws, which include the ability of landowners to prevent individuals from trespassing on their property. Property owners have the legal right to exclude others from their property and to limit the activities of those they allow to enter. This means they are free to exclude writers from their property irrespective of the reason. Should a writer ignore or disregard the owner’s right to exclude them from their property or to limit their activities, writers can be held liable for trespassing.
Although the law against trespassing prohibits entry onto another’s property without the owner’s permission, the law recognizes that in many cases, people may rely on the customs of the community that establish implicit permission to enter someone else’s property. For example, members of the public are allowed to enter the public areas of commercial businesses, such as restaurants and stores, during business hours. Conversely, it is well recognized that the public generally may not enter places such as residences or industrial properties without getting explicit permission to do so.
Public Places
Another category of places where writers may reasonably assume they have the right of access are public places. The most open public places are those where the public has an established right to express themselves politically, the most obvious being city sidewalks and public parks. Some cities have gone so far as to enact ordinances that encourage the maximum public use of facilities, such as parks. While the government can impose restrictions when necessary to protect public welfare, these are typically addressed to the public at large and rarely affect writers specifically. The primary restrictions for activities on public sidewalks are prohibitions against obstructing free passage and access to properties adjoining the sidewalk. The ordinances and rules that apply to city parks typically prohibit things such as littering and unreasonable noise.
It is sometimes difficult to determine whether the property owner allows public access to property, and judgment must be exercised. A good example is an open field that shows obvious signs of public use, such as paths or recreational structures, and is not posted against trespass. Although such activities may indicate that the owner allows the general public to enter the property, there is no legal presumption that the landowner has consented to people entering the property. Furthermore, owners are not required to post signs prohibiting trespassing even though they want to exclude the public from entering the property. Whether it is reasonable to enter such properties is a judgment call to be made at your own risk. A good-faith—but mistaken—belief that you have permission may not protect you from a claim of trespass.
Consent
Writers are always free to enter a property when owners or their agents knowingly consent. It is, however, important that writers understand that there can be significant legal limits on the effect of consent. In some cases, even the knowing failure of an owner to object to someone’s entry can invalidate a defense to a trespassing claim, such as when the owner mistakenly believes that a writer was accompanying the police to record evidence as part of an investigation. If the writer is actually working for the media and did not obtain permission from the owner, he or she could be liable for committing trespass. Therefore, you should be careful not to assume that the absence of objections implies consent if the circumstances suggest that the property owner could reasonably misunderstand why you are present.
It is important to determine whether the person giving permission to enter a property has the legal capacity to do so. The legal capacity of a person to consent on behalf of the owner depends on his or her relationship to the owner, as well as the ability to appreciate the nature, extent, and consequences of the consent. People such as very young children and the mentally impaired are generally presumed not to have the legal capacity to give you permission to enter a property, because they lack sufficient judgment to consider the effect of any consent.
When seeking entry to a property, it is prudent to obtain permission from people who appear to be competent adults that have the kind of relationship to the owner that indicates their authority to authorize entry. In many cases, you can reasonably infer that people such as the managers of commercial establishments have such authority. Specific factors to consider include the stature of the party, the nature of the property, and the general customs that apply. It is equally important to understand that not all employees have the authority to allow you onto the premises. For instance, it would be unreasonable to expect that the janitor at a bank would have the legal authority to let someone in after hours and inspect the contents of a safety-deposit box. When in doubt about a person’s authority, you should seek permission from someone who is more certain to have authority.
A related issue is whether public officials, such as police and fire officers, can allow the media and other writers onto private property to report on searches, firefighting, and similar activities. Although there is some authority supporting the proposition that it is customary in parts of the country for law enforcement to invite the media to cover police activities, it is generally unwise to assume that government officials have the authority to allow access without the owner’s permission. Most courts that have considered this issue have ruled the other way.
Sometimes you may encounter a situation where the person who objects to your entering a property may not have the authority to exclude you. In such cases, the scope of authority to refuse entry is the same as the scope of authority to grant it, and third parties have no rights to order you off a property unless the owner has given them the right to do so. An example of this kind of situation would be a store manager who tries to expel a reporter from a common area at a shopping mall to keep them from covering an event associated with the store. In general, tenants do not have control over the common areas of buildings normally accessible to the public.
Damages
Finally, although landowners and their agents may use force to evict a trespasser, the law generally requires them to first ask the trespasser to leave unless the circumstances indicate that the request would be futile. They can, however, still sue a trespasser for damages in civil court even if that person leaves willingly after the owner’s request to do so. The amount of damages that may be awarded will vary, depending on the circumstances of each case. The damages might be only a few cents for a technical trespass that causes no real harm, but can be significant when the trespass results in actual injury, such as the destruction of property. In cases in which the trespasser enters property posted against trespassing or willfully disregards an owner’s request to leave, they may be liable for criminal trespass as well.
In the Food Lion case previously discussed, a claim was also made that the undercover reporters had trespassed onto the supermarkets’ premises, because its consent was voided as a result of the reporters’ misrepresentations about their purpose for entry. The court in that case ultimately ruled that because the reporters went into areas of the stores that were not open to the public and acted adversely to the interests of their second employer, Food Lion, they had breached their duty of loyalty, and thereby abused their authority to be on Food Lion’s property. Although the court upheld the judgment as it pertained to the trespassing claim, the damages awarded to Food Lion were only $2.00.
IN PLAIN ENGLISH
The law of trespassing as applied in these kinds of situations varies substantially among the states.
RECORDING INTERVIEWS
Whether it is lawful to record a conversation depends on the circumstances of each case. It is always legal to record conversations when all the parties are aware they are being recorded and give their consent. Such consent can be explicit, such as when a person verbally acknowledges that the conversation is being recorded, or implicit, such as when the person sees the recorder operating in front of them and does not object. Of course, writers are better protected by obtaining explicit consent, since whether a person has implicitly consented can be a matter of interpretation.
Federal and state statutes govern the use of recording equipment, and unlawful use can result in civil liability and criminal prosecution (in some cases). Most states permit people to record telephone conversations to which they are a party without informing the other parties. In other words, as long as you are a party to the call, it is legal for you to record it. Some states require that all the parties know they are being recorded and provide their consent: California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Pennsylvania, and Washington. This number may change, as bills are pending for changes in some states. Careful research should be undertaken with respect to the status of your state at the time you consider recording any conversation.
In situations in which the parties to the call are in different states, the law of the state in which the recording device is located will likely apply. This is a fairly common situation when people are talking by long-distance telephone. For example, if two people are participating in a call between telephones in Oregon and Washington, the party in Washington could not lawfully record the conversation unless both parties know they are being recorded and give their consent. The party in Oregon, however, could lawfully record the conversation—even if the party in Washington is unaware that the call is being recorded. The laws among the states vary, and it is possible that nuances in their drafting could affect how the laws apply in an interstate context.
IN PLAIN ENGLISH
In situations in which the law of one state conflicts with that of another on the issue of whether all parties need to consent, it is advised that you seek specific legal advice before recording without the consent of all parties.
The law regarding recording in-person conversations tends to follow those that apply to telephone conversations in most, but not all, states. For example, Oregon law allows the recording of telephone calls when a single participant consents but prohibits the recording of face-to-face conversations unless all parties consent. Therefore, it is important for you to determine what the law is in your jurisdiction before you record conversations either in person or by phone.
SEEKING HELP
For many writers, obtaining access to information or to locations is essential, yet the law establishes rules that must be adhered to. The rights of individuals and property owners must be balanced against those of the writer. The guidelines are often blurry, and writers may be forced to risk both civil liability and perhaps penal sanctions. By working with competent, experienced publishing attorneys, you can reduce your exposure and likely achieve most, if not all, of your writing objectives.