Shield Abuse

A bogus argument stretches a good law to the breaking point

We like shield laws. They encourage the flow of information by allowing reporters to promise anonymity to sources, without fear of subpoenas. We believe in freedom of information laws, too. They let the public in on public business. In a case we’re involved in, New York State is cynically pitting the former against the latter, in a way that could ultimately damage the shield.

The story begins with our reporter, Clint Hendler, who covers politics and transparency issues. In March, Hendler submitted a request under New York’s Freedom of Information Law (FOIL) asking for e-mail traffic between the press and two members of Governor David Paterson’s communications staff, Peter Kauffman and Marissa Shorenstein, before they both resigned. The background: in February, local media were abuzz with speculation about a coming New York Times story on the governor. Among the wildest rumors was that the Times would expose such tabloid-ready topics as drug use and orgies. In fact, the Times series, published in February, was tamer, though it did explore potential abuse of power by a governor intent on protecting a favored aide accused of domestic assault.

Hendler thought the interplay between the media and a press office enmeshed in the controversy during this period could yield something interesting. Like all good reporters, he had been inspired by others: John Cook, then of Gawker, now of Yahoo! News, had made a similar—and successful—request during the meltdown of the previous governor, Eliot Spitzer; Cook, in turn, had been inspired by The State, which had used South Carolina’s open records law to obtain e-mails between Governor Mark Sanford’s press office and reporters during the period when Sanford was “hiking the Appalachian Trail” in Argentina in June 2009.

On April 29, New York denied Hendler’s request on two grounds. In one argument, it said these records were “competitively sensitive information” since they could reveal “ongoing lines of research” being pursued by reporters. This form of exemption, we’re told, has usually applied to specifics that could cause substantial competitive harm—industrial plans, product formulas, and so forth. We doubt that reporters’ scoops rise to that level. And the scoop argument feels increasingly lightweight given that Hendler’s request is for records six months old and counting.

But the state’s other argument is particularly bogus. New York’s FOIL says public records can be withheld if they are “specifically exempted” from disclosure by state or federal statute. And as such a statute, New York cited its shield law, which protects journalists from subpoenas in the case of news “received in confidence” and also grants a qualified privilege for all information reporters obtain in the normal course of newsgathering, unless a judge decides that it is highly material, critical to court action, and unobtainable from other sources.

We find the argument specious. First, we are seeking government e-mail records—not newsroom records or knowledge. These are available to users of foil as a matter of course. The FOIL is a tool to get records out of the government, not a subpoena aimed at journalists.

More importantly, shield law privileges are for reporters, not sources. Taken to its logical extension, New York’s argument would stretch the shield far beyond the law’s intention, weakening it past the breaking point. Finally, the Paterson administration had no problem releasing similar records when they were about the previous governor, Spitzer, when Cook successfully asked for them.

Perhaps most important, if we are to push for a federal shield law and protect the state shields that already exist, we need to stay true to their spirit, to work to keep them viable. And if we are to keep freedom of information laws strong, we need to exercise them, and to resist phony rejections.

So, governor, we’d like to see those e-mails, please.

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The Editors are the staffers of Columbia Journalism Review.