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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 weâre 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 Yorkâs Freedom of Information Law (FOIL) asking for e-mail traffic between the press and two members of Governor David Patersonâs 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 similarâand successfulârequest during the meltdown of the previous governor, Eliot Spitzer; Cook, in turn, had been inspired by The State, which had used South Carolinaâs open records law to obtain e-mails between Governor Mark Sanfordâs press office and reporters during the period when Sanford was âhiking the Appalachian Trailâ in Argentina in June 2009.
On April 29, New York denied Hendlerâs request on two grounds. In one argument, it said these records were âcompetitively sensitive informationâ since they could reveal âongoing lines of researchâ being pursued by reporters. This form of exemption, weâre told, has usually applied to specifics that could cause substantial competitive harmâindustrial plans, product formulas, and so forth. We doubt that reportersâ scoops rise to that level. And the scoop argument feels increasingly lightweight given that Hendlerâs request is for records six months old and counting.
But the stateâs other argument is particularly bogus. New Yorkâs FOIL says public records can be withheld if they are âspecifically exemptedâ 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 âreceived in confidenceâ 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 recordsânot 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 Yorkâs argument would stretch the shield far beyond the lawâs 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, weâd like to see those e-mails, please.
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