Q: The city’s communication offices refuses to add us to their official media e-mail list, that sends information and notices about events the mayor will attend or news conferences. The office also purposely refuses to answer our calls and e-mails, based on our legitimate news coverage. What recourse do we have to at least compel them to add us to their news e-mail list?
We had a direct conversation (which was recorded with permission) asking the city’s communications director how media organizations get added to the official e-mail distribution list. He said it was at his sole discretion. A PRA confirms there is no official policy on who gets on and who doesn’t (they said there are no such documents). We are not on the e-mail list despite our requests to be there. What steps can we take to be added to such lists?
A: This is a tricky issue. Once a government agency decides to release information or an official has chosen to speak to members of the media, it may be unconstitutional to exclude selected news organization or individual journalists from receiving the same information. In addition, differences in the manner in which the information is provided may also be unconstitutional.
Unconstitutional discriminatory treatment of the media can arise in many other situations. For example, courts have found violations of the First Amendment and the Equal Protection clause where a mayor excluded a particular reporter from press conferences to which the public generally was invited (Borreca v. Fasi, 369 F. Supp. 906, 910-11 (D. Haw. 1974)), where a sheriff prevented department officials from releasing any information to reporters of a particular newspaper except in response to a written request (Times Picayune Publishing Corp. v. Lee, 15 med. L. Rep. 1713, 1716-19 (E.D. La. 1988)), and where city officials denied reporters for a particular newspaper access to police files generally available to other reporters. Quad-City Community news Service, Inc. v. Hebens, 334 F. Supp. 8, 15 (S.D. Iowa 1971). In California, a court held that the City of Los Angeles, could not constitutionally give one television station the exclusive right to film an official ceremony and celebration commemorating the Mexican War from the stage at City Hall Plaza. Telemundo of Los Angeles v. United States District Court, 283 F. Supp. 2d 1095, 1104 (C.D. Cal. 2003).
The rule against discriminatory access only goes so far, however. In two recent cases—one in Ohio and other in Maryland—the media challenged policies forbidding public employees from speaking to certain reporters. In both instances, the media challenges were unsuccessful.
If you can obtain a copy of whatever criteria the agency uses for including entities on its e-mail list, that might help support an argument that the treatment is wrongful. To the extent you can’t obtain such information—or learn whether it exists—because the agency refuses to communicate with you, you might consider seeking relevant documentation via a Public Records Act request.
Perhaps this was already within the scope of your prior PRA request, but you might be able to obtain documents via PRA requests reflecting what entities are on the list, what entities have requested inclusion on the list, and what the city’s written communications on such requests have been. If the documents showed, for example, that the communications director has exercised his “discretion” in every case but one to approve such requests, that could theoretically be useful information. Unfortunately, the case law is not so strong in this area that the media can be confident of prevailing in legal action to force stubborn government agencies to desist from discriminating among media entities.
Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation. No attorney-client relationship has been formed by way of this response.