Friday, August 27, 2010

Columbia Journalism Review Sues To Obtain Governor Paterson's Office Emails

Why We’re Suing
Let’s see those e-mails, governor
By The Editors of Columbia Journalism Review

Today, the Columbia Journalism Review will file a lawsuit in an Albany court, seeking to compel New York state to properly fulfill its duties under the state’s Freedom of Information Law—duties we believe the state is speciously and cynically trying to shirk by citing inapplicable exemptions and New York’s shield law.

Here’s how we got to this point. Way back on March 4, Peter Kauffman, Governor David Paterson’s director of communications, resigned, saying that as a former Navy officer he took “integrity… seriously” and that he could not “in good conscience continue in” his position.

His departure came in the midst of one of the one of the strangest chapters in New York’s recent political history. For weeks, the actions of the governor and his staff had been subject to an aggressive investigation by reporters from The New York Times, in the wake of a domestic violence case involving one of the governor’s most trusted aides. While the paper worked its sources, Albany’s rumor mill went into overdrive about the coming article, presumed to be a bombshell. Would it be hookers? Cocaine? Bribe taking? All of the above? With assists from social media and a hyperactive press corps, such speculation burst into the state’s political conversation.

Kaufmann’s resignation reminded Clint Hendler, our staff writer who specializes in politics and government transparency issues, of two recent public records requests. In 2009, just after South Carolina governor Mark Sanford’s staff told the press that their out-of-pocket boss was off “hiking the Appalachian Trail,” John O’Connor, a reporter at The State, filed an open records request that netted e-mails between reporters and the governor’s press office as the scandal brewed. That ingenious reporting trick inspired John Cook, then a reporter with Gawker, to file with New York for 2008 e-mails between former governor Eliot Spitzer’s press secretary and reporters, in the period immediately around his prostitution meltdown.

The documents yielded by both these requests contained some interesting nuggets, showing reporters aggressively angling for information and exclusives and revealing some of the tactics used by press secretaries to manage coverage. So Hendler thought that Kaufmann’s e-mails might be worth a look, and, the afternoon of his resignation, submitted a request under New York state’s Freedom of Information Law (FOIL) for the last seven weeks of e-mails between members of the press, Kaufmann, and his deputy, press secretary Melissa Shorenstein. When Shorenstein also resigned two weeks later, saying she’d been “unwittingly” caught up in the scandal, Hendler filed an amending request seeking similar e-mails through the time of her departure.

The requests—technically in Hendler’s name—entered an acknowledge-and-delay phase familiar to most anyone who has used freedom of information laws, until April 29, when, despite finding over 2,300 responsive e-mails, the executive chamber wrote us to say that, by the state’s reasoning, the public can’t see a single one of them. An administrative appeal garnered nothing further.

So we’re suing.

Why? Well, let us count the ways. First, we’re journalists, and we don’t like taking no for an answer.

More seriously, the records we’re seeking would likely help illuminate the press’s role in a bizarre chain of events in state history that led to the appointment of an Independent Counsel and to the governor dropping his election campaign. Sure, there will be lots of chaff in those e-mails. But perhaps they’d offer some information explaining the resignations, show reporters testing the most bizarre theories circulating at the time, or catalogue an evolving damage-control line from the state’s highest official.

Any of that would all be potentially interesting, and that’s why we will exercise our rights under the law and file suit.

But given the response from the governor’s office, we now also think this suit must be waged to protect the full force of two laws that the state’s press corps rely on: the Freedom of Information Law and the state’s shield law. As we argued in an editorial headlined “Shield Abuse” in our July/August issue, we like freedom of information laws and we like shield laws. We don’t like it when the latter is cynically pitted against the former, in a way that could ultimately damage the shield.

The governor’s office’s denial letter (pdf) gives two rationales for withholding the records. The first suggests that the e-mails would “reveal competitively sensitive information.” The law does allow the state to hold back private businesses information they may hold on the order of trade secrets—manufacturing formulas, for example—but, in this case, that rationale is silly. The state is claiming that the e-mails—none of which are less than five months old—might reveal proprietary lines of reporting, sources, or “methods used by reporters to conduct their research.” Proprietary methods like e-mailing the governor’s communications staff for information or comment? Please.

The other rationale is, to give it credit, at least more creative. The FOIL statute allows the state to withhold documents that other portions of state law demand be kept private. In this supposed spirit, the governor’s office has denied the records by citing the state’s shield law, which can offer journalists, depending on the circumstances, protection against being held in contempt for refusing to comply with a subpoena.

On its face, that won’t fly. The shield law protects journalists from subpoenas about their sources and reporting. It does not protect sources from being compelled to testify. Expanding its protections to sources—especially to government sources, paid by taxpayers, and acting in their official capacity—would pervert and dilute the law. Besides, any talk of testimony is entirely besides the point here. The FOIL process is not a subpoena, and the shield does not protect public records—even if those records reflect some aspect of a journalist’s communication with a public official—from being disclosed pursuant to a proper records request.

Amazingly enough, it wasn’t long ago that the Paterson administration would have agreed with us. Remember John Cook and his 2009 request for Governor Spitzer’s press secretary’s e-mails? It was fulfilled without complaint by the Paterson administration, without any exemptions claimed. But once FOIL’s requirements were trained on Paterson, and threatened to expose something about the operations of his staff, his lawyers found reasons to deny.

Who knows exactly what a fulfilled request would reveal? But it already has revealed something about how freedom of information requests are sometimes handled by governments, who can deny on slim or specious legal grounds with the bet that the requester will throw up their hands, frustrated by the expense and hassle of taking the government to court. It’s a cynical ploy that frustrates the public and the press’s right to know.

And luckily, that won’t be the case here, thanks to our lawyers at Friedman & Wittenstein, who have generously agreed to take the case at no charge to us. Instead, they hope to recoup their costs under a provision of New York’s FOIL allowing plaintiffs to bill the state if the judge finds that a denial was especially capricious.

And if that’s the standard, we like their chances.
CJR sues to disclose N.Y. governor's office's e-mail messages

The Columbia Journalism Review today filed suit to compel New York state to release several weeks’ worth of e-mail messages among Gov. David Paterson’s former director of communications, Peter Kaufmann, Kaufmann's deputy press secretary, Melissa Shorenstein, and the media.

The governor’s office on April 29 refused to reveal the roughly 2,000 e-mail messages responsive to CJR’s freedom of information request, claiming that those public records were exempt by law – citing the New York shield law, which provides a state reporter's privilege.

Clint Hendler, a CJR reporter, had previously requested the government e-mail messages under New York’s Freedom of Information Law (FOIL). Kaufmann resigned on March 4, 2010 citing issues of “integrity” following a political dust-up in which reporters were investigating accusations that an aide to Gov. Paterson, David Johnson, was involved in a domestic violence dispute. Shorenstein resigned two weeks later.

While the governor's office cited the New York shield law as a basis for withholding information, state shield laws in fact exist to ensure the flow of news and information to the public and to protect an independent press; indeed, the proposed federal shield legislation is entitled the “Free Flow of Information Act.” This particular privilege from producing documents or testifying is referred to as the “reporter’s privilege” because it belongs to a reporter to assert, not to the government as a means to prevent it from disclosing public information.

The denial also cited portions of “commercially sensitive” information in the messages as additional grounds for denial.

CJR wrote that it is suing to “compel New York state to properly fulfill its duties under the state’s Freedom of Information Law — duties we believe the state is speciously and cynically trying to shirk by citing inapplicable exemptions and New York’s shield law.”

Columbia Journalism Review is being represented pro bono by the New York law firm of Friedman & Wittenstein.

— Cristina Abello

Behind the News, Transparency — April 29, 2010 06:59 PM
An Attempted FOIL

NY governor’s office denies CJR’s records request
By Clint Hendler, CJR

Late this afternoon I got an email from the New York governor’s office initially denying a pair of requests I filed in March under the state’s Freedom of Information Law.

The subject of said requests? All emails between the governor’s two top press aides and journalists sent between January 15, 2010, and the dates in March when the flacks resigned their positions. As you may recall, in that period of time the governor and a top aide were under the aggressive investigative lens of The New York Times. The paper was examining the aide’s record of domestic abuse, and accusations that the governor and members of the state police discouraged the aide’s girlfriend from filing domestic abuse charges after an apparently violent incident that the governor office originally described as a “bad breakup.”

You may also recall that in the run up to the Times’s blockbusters on the scandal, almost all of New York’s press corps got swept up in rather uninformed and all too public speculation about a story that the Times hadn’t run yet.

Where there are rumors, there are press secretaries called upon to deny them, and for that reason among others, I thought it would be interesting to get a peek at what the flacks were getting and giving in those hectic days.

Credit for this idea goes to John Cook, a reporter now with Yahoo! News. While working for Gawker, he had filed a similar request with the Paterson administration for emails sent and received by Governor Eliot Spitzer’s press secretary during his dissection by the Times. (Cook, in turn, credits South Carolina’s The State, which filed the same kind of request when Governor Mark Sanford was not hiking on the Appalachian Trail.)

Today the governor’s office denied my request. (They also, it turns out, just denied a similar, though apparently narrower, request made by John Cook.) Here’s a PDF laying out the legal reasoning behind one of the denials. (The two letters are essentially identical.) The governor’s lawyer offers two arguments, both of which, let’s note, Paterson’s lawyers didn’t find fit to cite when it was Spitzer’s press secretaries’ emails on the line.

The first is that the governor’s office claims that New York’s state’s shield law forbids emails to be released because they are “the work product of journalists.” If you look at the denial letter, you’ll note that Jeffrey Pearlman, the lawyer who signed the denial, doesn’t cite any text from the state’s shield law in making this argument. I think I have an idea why: there’s not a word in the law to support this claim. The law protects journalists from being held in contempt if they themselves refuse to reveal their sources, unpublished information, and other work product as the result of a court or legislative subpoena. It doesn’t protect other people who may possess information about a journalist’s work. I can’t imagine the governor’s office being able to offer a plausible defense of this argument.

The second argument is perhaps more colorable—though that’s not saying much. Pearlman suggests that the information, sources, and methods of reporting described in the emails would if disclosed “cause substantial injury to the competitive position” of the news organization employing any given reporter. But “substantial injury” is a high bar, and it’s hard to see how months-old emails between the governor’s official press staff (no Deep Throat there) and the working press would have much content that could clear it.

It will be interesting to see how well these arguments hold up should I—or Cook, or any other reporter out there who may have asked for the emails—decide to seek an administrative appeal, or involve New York state’s ombudsman-like Committee on Open Government, or the courts.

I have a guess

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