Who decides "journalism" and "journalist"?

Carla Axtman

A rather fascinating situation has developed in Lake Oswego over who gets to cover work done in City Council Executive Session meetings, and who doesn't.

Rebecca Randall, The Portland Trib

Recently, a media and government work group drew up a potential model policy defining who is a journalist, and therefore allowed to attend closed-door city council meetings — called executive sessions. The work group came together in reaction to a policy first written by Lake Oswego City Attorney David Powell after a blogger attempted to attend an executive session.

Executive session in Oregon are subject to public meeting laws, but are not open to the general public. Journalists are allowed to attend the meetings but cannot report on anything heard in the meeting. Information gained during these sessions is strictly "on background", to give reporters context to sensitive issues. They can, however, ask related questions and comments after the meeting for a story--as part of their role to hold government accountable.

So after months of policy development and vetting, the City of Lake Oswego has decided which "media" can attend their Executive Sessions:

The policy does not exclude a blogger or other non-traditional media member as long as he is a part of an institution and committed to compliance with the law.

Right off the bat, the policy defines media as any organization that has been previously recognized as eligible to attend executive sessions, such as The Oregonian and the Lake Oswego Review.

Secondly, anyone who is a member of the Oregon Newspaper Publishers Association, Oregon Association of Broadcasters or the Associated Press will be addmited.

Any newspaper that the local government uses for publishing public notices would also be admissible. Open Oregon urged the inclusion of this requirement because some small, rural newspapers may not be members of ONPA or AP but are still well-established media insitutions in their communities.

To address non-traditional media, there is a two-part test. First, it must be organized and regularly publishing, broadcasting or transmitting news that reports on local government. Second, it must be “institutionalized” and committed to uphold the law regarding executive session. Institutionalized is defined to mean that an entity must have multiple personnel, must have names and contact information of personnel readily available and has a process for correcting errors.

The policy establishes a process by which a media representative can provide credentials, following the original guidelines borrowed from Columbia County. The council could also choose to request that a journalist sign a form that declares that he has the credentials to be in attendance and will comply by the law.

The council can bypass procedure and make a determination on the spot if a person’s qualifications are immediately clear. However, if the council denied the person’s eligibility, it must provide a written finding.

I do understand the importance of executive sessions and the sensitivity around maintaining their no-reporting rule. Private employee information and other such items can be under discussion during these sessions--and there's a need to maintain that integrity, while at the same time allowing journalists to conduct oversight. It seems like there's been an effort to keep the door open to bloggers and online media to participate.

But the part I'm having trouble understanding is why there needs to be some sort of "institutional" entity involved, as opposed to just one person. A number of years back, the Portland Communique blog run by The One True b!X reported on the goings on at all sorts of government related meetings. Certainly, he was doing activist journalism, and did a tremendous job informing the public in a way that nobody else was doing at the time. I don't get what it serves to keep someone b!X out (who runs a blog alone), especially if he's willing to agree to not publish. Is it impossible to sanction or fine a person who violates an executive session by writing about it unless they're in an institutional setting?

It seems entirely heavy handed to implement with a policy on keeping bloggers out--rather than a policy that sanctions/fines those who violate the sanctity of the sessions.

I'm willing to entertain arguments to the contrary, however. Thoughts?

(H/T: Jack Bogdanski)

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    Seems to me that Bix would have been a recipient of the escape hatch clause.

    The problem with after-the-fact fines is that the damage caused by disclosure could far outweigh any plausible fine. Let's say disclosure causes a multi-million dollar lawsuit. A small $500 fine seems out of place.

    The institutional rule isn't optimal, but it may be the only way to put some limits on the process. Otherwise, anyone could create a blogger.com account for the purpose of gaining access to closed meetings. (Think campaign trackers and private investigators.)

    There are, of course, limits on what business is allowed to be conducted in closed session. Those who gain access have a responsibility to ride shotgun on those determinations, insisting that inappropriately closed sessions be opened to the public - rather than relying on their own "on background" access.

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      Otherwise, anyone could create a blogger.com account for the purpose of gaining access to closed meetings. (Think campaign trackers and private investigators.)

      I think these would fail the first part of the two-part test, although I suppose that could be faked if someone were determined enough. b!X, on the other hand, would have passed with flying colors.

      I share Carla's discomfort with the emphasis on "institutions." I am not persuaded that excluding serious independent blogger/journalists is a reasonable response to the need to limit access to executive sessions.

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      Have there been many lawsuits of this type in the past?

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      There are multiple tests, so just starting an a blogger account would not be sufficient as it wouldn't meet the test of "regularly reporting" on the government entity. Everything else about it seems reasonable.

      For more on this topic, see http://www.ofbyandfor.us/lake-oswego-or-topic-media-access-to-executive-sessions/

      And why wouldn't Of, By and For be acceptable as an "institutionalized" blog in Yamhill County, for example: http://www.ofbyandfor.us/yamhill-county-or/

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      Carla is on the right track here. under no circumstances may a governmental entity choose who will cover their meetings, open or executive sessions. Nor is freedom of the press limited to members of "professional" associations like OAB, ONPA or any other private trade association.

      The Oregon Constitution, Article I says this about freedom of the press:

      Section 8. Freedom of speech and press. No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.–

      I covered every session of the Oregon Legislature from 1971-1991. I never worked for anyone but myself. I was syndicated and people paid me to broadcast or print my opinions. I was at all the hearings that led to the Public Meeting Law in 1973. The executive session exception was in the original to honor a long-standing agreement between the Eugene School District and the Register-Guard. Lake Oswego is way out of line here trying to define who is and who is not a journalist. New technology is redefining journalism and how is is practiced. Government is just going to have to adjust.

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    What's already in the public meeting laws? Is each public body free to define "media" on its own? Are their penalties defined for violations? And how are the penalties enforced?

    Rather than an institutional requirement, and if there are fines for violations, I think I'd prefer bonding or some way of assuring that a violator of the rules could pay a fine. That would be enough for me.

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    I was a reporter on a couple of weeklies in Sonoma County CA a couple of decades ago and fairly regularly had to fill in for the incredibly patient and dedicated human being who sat through hours upon hours of bloviation, testimony, repetition, and obfuscation at the city and county levels to find the rare black pearl in the piles of deer doo.

    It's my understanding that those weeklies no longer have the budgets to pay people to sit through these meetings any more. They rely, in the main, on public records and on tips from a very few dedicated individuals (a number of who are bloggers) who are willing to stay awake and pay attention through hours of generally brain-numbing blather.

    Those individuals attend these meetings by virtue of the Brown Act, which severely restricts the option of "executive meetings" by governmental and quasi-governmental agencies and institutions. As a result, there's no need to define who is a "journalist." In my opinion, that is as it should be.

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    How about defining human beings by a set of journalistic standards. Honesty, fact checking, relevance to community well being, etc.

    We could shut down most of the local nightly news tomorrow based on story usefulness alone.

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    As someone who has been living with this issue for more than a year, let me weigh in here. I publish the Coast Lake News (a 6-8 page weekly) in Lakeside, OR. Currently, my husband and I are the only reporters (although we have several regular columnists.) I have more than 35 years as a journalist. We started the paper with bootstraps and grit in a town which has not has a newspaper in many years. In August of 2009, while covering the City Council we revealed a memo that made it clear a councilor was playing fast and loose with the truth. Since then, we have repeatedly had trouble with city hall and the council including having to get the DA to order them to release Council minutes to us. We've been repeatedly kicked out of executive session, hampered in our efforts to obtain public records, and had the Mayor Pro Tem publicly and repeatedly tell the community that we were "not media", "not a newspaper", and encouraged businesses to boycott our paper. This is what happens when a body is not used to being covered and held accountable for their actions. Under NO circumstances should a government body get to decide who is and is not a journalist. This goes to the heart of First Amendment issues. The idea of "institutional" is not only exclusionary, but seems to have built in a us v. them situation between the larger entities and smaller papers such as ours. In a town such as ours, with a council and district boards who feel free to violate the law with impunity, it is imperative that the press be able to fulfill the watchdog role, including keeping them legal and honest by our presence. To be frank, I've wondered why media folks haven't been more outraged by this action by Lake Oswego instead of jumping on the bandwagon and discussing "how" to have a policy.

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    As the blogger in question who incited this whole process, it's key to remember that the burden is on the state to justify a closed session, not the members of the public to justify their attendance. Public meeting laws are the default position in Oregon; exec sessions are an exception with clearly defined limits on when and why then can occur. The presence of media is intended as a check on that exception.

    Unfortunately the statute is silent on a definition of media, and I support LO's desire to create a written guideline. However, what they've crafted is not particularly justifiable, using the status quo and what's easiest for them as their dominant guideline. The issue of "institutionalization" is basically made up, and offers little in the way of establishing credibility prima facie.

    It's also instructive to note that the federal reporter shield laws are taking this same question into account, and my most recent recollection is that Schumer agreed to the House version, which drops the institutional phraseology.

    I did a bunch of interviews when this all came to light; I'm happy to do so again if there is interest based on the newest draft release. loadedorygun at gmail.

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    Again, I'm in favor of public meetings laws -- and I agree with Mark that the burden is on the state to justify closed sessions.

    However, once that burden has been met, I think it's reasonable to set some guidelines on exactly who gets to pierce the veil.

    I'm not interested in a situation that allows campaign trackers, private investigators, and other people who are clearly not playing by the same rules into the room.

    Otherwise, what's the point of having a closed session? (Again, assuming that we've got a closed session that is closed for authentic and legitimate reasons.)

    Despite Jessica's dismissal of the "how?" question, I think that's just as important as the "whether?" question.

    I'd like to hear what rules others - including Jessica and Mark - would propose. How do you draw a bright line that doesn't involve judgment calls -- either by the agency holding the meeting, or worse, a judge.

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      I think part of the issue is a dual problem: the state should not be defining for the guild who is a member of that guild; and the guild itself doesn't really want to expand its membership beyond traditional definitions. It really doesn't make sense to me for LO or any government body to declare who is and isn't media, for the simple reason that they then control access to those sessions--which is exactly the opposite of the point of having media allowed to be there in the first place. If they are a check on the government body, and the body can decide for itself who is eligible to check them, that kinda nullifies the power of the check.

      So ideally it should be the guild itself that declares who is eligible, and the gov't body can rely on that self-definition. But my early experience with the keepers of the media establishment in Oregon don't suggest much more interest in the question of access, than maintaining their own (and making sure the rules on their access and post-hoc reporting stay the same). There's not necessarily any upside in their minds, for expanding the definition of media.

      Specifically speaking, I think the "institutional" rule is bunk and clearly discriminatory. It pretends that sole-proprietorship journalism is oxymoronic, that you need multiple people to conduct it. Hogwash. Kill that requirement.

      I do think it's legitimate to establish the depth of committment, however, as expressed by length of public service and frequency of Oregon-based reporting. If you've been doing it less than a year under whatever current banner you're operating from, you might be HL freakin' Mencken--but you might also be a fly by night crank who set up a website as a cover. Making someone stick to it for a period of time surely weeds out the dilletantes, and the nice thing about the requirement is that it's not a permanent bar to anyone; if you've only been around 6 months, wait 6 more and you're good.

      It's a little harder to pin down the parochial relevance of a media outlet's reporting, but I think you can reasonably ballpark a somewhat arbitrary number and say (eg) that at least 10% of all published pieces by the outlet in the last year must be directly Oregon-related in order to qualify.

      Of course, this is all for those outlets not picked up by one of the grandfathering exceptions. Obviously TheO and the LakeO Review don't have to prove their credentials at this point.

      Under these rules, b!x would have qualified easily as a media outlet, as he should.


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        (part 2)

        One other point about pseudo/anonymity, which was said to be an issue of some import regarding LoadedOrygun. I think it's simple enough to demand merely that a document be filed with the body in question BEFORE the exec session (say at least 48 hrs unless the lead time on a called exec session is less than 48 hrs; they sometimes are quickly called with short lead times), that uses at least one real name and address. That should apply to ALL outlets wishing an exec session credential; even the big boys. Do it once, and that letter is kept on file. That gives the govt body some way to place legal liability on either a distinct institution or a person. Post and interact with the public as "torridjoe" all you like, but the City of LO will know the site is run by Mark Bunster.

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      As presented there is a "two part test". The first says: must be journalism. The second says must be institutionalized. Requiring multiple people to be a part of institutionalized is lame and unnecessary and doesn't address the trackers and private eye problems.

      The private eye or trackers problem isn't solved by "institutionalization" since they may belong to firms with multiple people. So the problem must lie with the definition of "journalism" as regularly reporting news on the political body to the public. They could meet the publishing test, it would be harder to meet the test of regularly publishing prior to the executive session unless they were prescient, but there are imaginable scenarios. Seems like the problem is with the motivation if all else was met. In any case, they are held to the same standard of not revealing protected communications in the meeting.

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