Chapter Overview

In many respects, Chapters 7 and 8 are companion chapters. Chapter 7 addresses limitations and safeguards specifically imposed by the law with regard to gathering information, and Chapter 8 examines the same issues with regard to court sessions and documents as well as how and to what extent journalists may protect information (including sources of information) once it is obtained.

A dominant theme in newsgathering law is that journalists have no greater access to information, or to locations where sought-after information may be, than any other person. Thus, the First Amendment freedom of press clause accomplishes virtually nothing for journalists in this area. Laws that govern the right to obtain records or attend certain functions are generally applicable. They apply to everyone in the same way – First Amendment or no First Amendment. So public forum law, discussed earlier, applies here as do laws that protect the privacy of non-public places.

Access to government records and meetings is essential to much information gathering. Laws at the state and federal levels determine when the public has a right to obtain records and attend meetings and when limits apply. Various aspects of the federal Freedom of Information Act (FOIA) are analyzed, from general stipulations and how to file a request to its specific exemptions. FOIA stipulates deadlines for response to records requests, but recent surveys indicate that government compliance is less than exemplary. FOIA also serves as a model for state record access measures, although state statutes vary in their sweep and their particulars. Measures such as the Government in Sunshine Act and the Advisory Committee Act provide access to specific types of meetings on the federal level. Similar laws work at the state level.

An interesting tangent of trespass is the ride-along. In the past, journalists who were invited by officials – for example, police officers and firefighters – to accompany them onto private property were thought to be in the clear. No more. A series of rulings establishes that the consent of the owner or occupant of the property is required. A Chapter 7 sidebar that excerpts an article on ride-along cases by First Amendment expert Rodney Smolla is illuminating.

Gathering sensitive information may require promises of confidentiality for the source. Chapter 8 discusses court orders to disclose such confidential information, but here we discuss why such promises are binding on information gatherers, even if the promises are not in writing.

Federal and state laws that govern recording – face-to-face and via telephone; overt and covert – vary between the federal and state levels, among the states and according to the kind of recording at issue. Students should be aware of their own state’s laws in this area. When in doubt, receiving permission to record from all parties is the safest path.

Although laws limit the ability to record without permission, courts recently have ruled that individuals enjoy a general right to non-disruptively photograph/record government officials in public. Buehler v. Austin is a current case on the right to record that highlights the delicate determination of when photography impermissibly interferes with officials’ performance of their duties. Laws like ag-gag statutes, ban recording of certain facilities and may carry hefty penalties.

Limits to public access generally advance competing interests. General laws that prohibit harassment, stalking, fraud, misrepresentation, intrusion, covert recording and interception of private “wire” communications apply here. Trespass laws prohibit entry onto private property, even for the purpose of gathering information. Students likely will be interested in the laws that specifically target newsgathering techniques, especially photography, on private property via drones (e.g., ag-gag statutes and the Animal Enterprise Terrorism Act of 2014) and even on public property when they seem to harass or potentially harm (e.g., anti-paparazzi laws in California). Harassment, fraud, and misrepresentation are legal/ethical problems for professional communicators (including people working in advertising and PR). The Food Lion case on undercover reporting is old but still an important case on a number of levels.

Radio call-in shows generally may broadcast recorded calls. Otherwise, broadcasters should receive permission to record and broadcast calls. However, under Bartnicki v. Vopper broadcasters may legally broadcast recorded information (even illegally recorded information) of public interest if they receive it legally and had no part in making the recording. Such recordings, like information received through social media, should be carefully vetted for accuracy.

Specific laws, including the exemptions in FOIA and state open records laws, limit access to various public records. This limitations are permitted, not mandated, to advance interests in privacy, national security, etc. FOIA exemptions are to be applied narrowly. Separate state and federal statutes also protect student, medical, and driving records from public disclosure.


I. Access to Places
  1. Access to Public Property
  2. Access to Quasi-Public Property
II. Access to Government Meetings and Records
  1. Open Federal Meetings
  2. Open State Meetings
  3. Open Federal Records
  4. Open State Records
III. Promises of Confidentiality
  1. Anonymous Sources and Confidential Leaks
  2. Broken Promises
IV. Recording
  1. Right to Record
  2. Face-to-Face and Participant Recording
  3. Noncovert Recording
V. Obstacles to Gathering Information
  1. Harassment and Stalking
  2. Fraud and Misrepresentation
  3. Intrusion, Trespass, and Voyeurism
  4. Problems with Covert Recording
  5. Recording or Intercepting “Wire” Conversations
  6. Social Media Sources
VI. Obstacles to Access to Government Information
  1. Exceptions to Government Openness
  2. The Privacy Act
  3. Student Records
  4. Medical Records
  5. Driver’s Information