Chapter 11: The Federal Freedom of Information Act (FOIA), The Federal Privacy Act, Oregon Public Records Law

The Freedom of Information Act (FOIA), 5 USC 552 (1988), and the Privacy Act, 5 USC 552a, are the two general federal statutes governing access to government data. There are many other specialized statutes (like the Internal Revenue Code at Title 26 USC) which govern specific areas and types of records. The law in this area is dynamic and complex. This summary touches only upon some of the main principles of interest to those, like the press, seeking access to government data.

The Freedom of Information Act

Published Data:

The easiest federal data to access is the mountain of officially published data. Five types of public data access are provided for officially published data.

  1. Agency Reading Rooms or libraries open to the public: These are generally found in the Washington, DC, area. The biggest and best is the Library of Congress. The National Archives also maintain public reading rooms. Their nearest branch office is in the Seattle, Washington area at the Federal Records Center in Auburn, Wash. Some of these federal libraries are available via computer data links or other services, such as certain data of the Securities and Exchange Commission and of the Patent Office. Individual agencies have to be contacted for information on these services, as well as some general federal data services found in the Washington, DC area and elsewhere in the country.
  2. Federal Depository Libraries: Across the Nation, many larger libraries have signed contracts to act as federal depository libraries, receiving free federal publications in exchange for agreeing to make them available to the public. In the Portland area, the Portland State University Library is the handiest federal depository library.
  3. The Government Printing Office bookstores: Portland has one in the downtown area around 1st and Jefferson. These stores stock and sell popular and topical federal publications on a wide range of subjects.
  4. Government Contract Publishers: Congress and the federal courts, both of whom are exempt from the FOIA, have chosen to make some federal records available only from private publishers at relatively high prices. The worst examples of this are those federal courts who publish their decisions exclusively through private publishers.
  5. Mailing lists: Most federal agencies maintain mailing lists for specific types of data, some of which are free and some of which require paid subscriptions. If one is interested in a particular area and a particular agency, it is always worth checking to see if and how one might get on a particular mailing list. Some of the above data is required to be made available under the FOIA and some is made available under other statutes or regulations.

Non-Published Federal Records:

The most commonly sought records under the FOIA are the non-published records maintained by federal agencies. A requester must know two things: What one is looking for, and who has it.

Agencies are not required to create or compile records. Moreover agencies generally charge for both the search time and the copying cost. (Members of the press are entitled to reduced costs in non-commercial situations.) Thus the more a requester knows about what one is looking for and where it is, the cheaper the request will be. Agencies are not required to look for records that are not defined with reasonable specificity.

Requesting Data Under the FOIA:

  1. Call the agency you think has information of interest to you and inquire generally about the following:
    1. WHO (name, office address, office phone number) is the official agency FOIA contact point;
    2. WHO (same data again) at the agency might be able to tell you something about agency records you may be interested in; and
    3. WHERE one can find and read a copy of the agency’s FOIA regulations, since any appeal of FOIA matters must be based on compliance with agency FOIA regulations to avoid being rejected in court for failure to “exhaust administrative remedies,” i.e. follow agency appeal procedures.
  2. Contact the official contact or other referenced official and just ask for general information about what types of records they might have that meet one’s needs, and how and where one might inspect, copy, or get copies of the records.
  3. Before filing an official written FOIA request, discuss the request with the persons who will have to answer it. While some persons may be uncooperative, generally FOIA officials will try to help focus the request to something available readily (reduce search costs), something relatively small in size (reduce copying costs), and something releasable without additional agency review (avoid disputes over exempt materials).

These practical rules can in most cases allow the requester to obtain a minimum number of pages, focused on one’s need, with a small or no fee (fees are waived below certain dollar amounts).

Even if a request does involve disputes and appeals over releasability or involve huge numbers of documents, prior coordination with agency FOIA officials will still speed the processing of the request and keep costs to a minimum.

Vaughn Indices and Disputes and Appeals Over Exemptions:

The usual procedure when FOIA requests are pursued on exempt documents which the agency opposes releasing is to create an index of the documents (known as a Vaughn index) and to prepare two copies of the documents, one copy which is identical to the original and another copy which has the exempt materials blacked out or whited out or otherwise removed. This excised copy represents what the agency will turn over without dispute, upon prepayment of the appropriate fees. The copies are then forwarded through agency channels to the senior officials with authority to make final agency FOIA decisions. What happens next depends upon the agency and the current policy. Agency and federal policy on what exempt materials are released without protest after review varies with each administrator and Presidential Administration.

Once the requester has a final agency denial (which occurs after one or more layers of review), the matter can be pursued in US District Court if desired. Even in federal court, the Justice Department may decide to release something that the agency refused to release. At other times, for critical policy reasons, the government may fight the release all the way to the United States Supreme Court.

As a practical matter, it is advised to negotiate a release agreement at the lowest agency level possible. Both significant time and cost can be saved by doing so.

Exemptions to FOIA:

The nine statutory exemptions are the most complex part of the FOIA, because they include a rainbow range of policies and concerns. Some exemptions are purely discretionary. Some exemptions are based upon other federal law protecting data against release. Some exemptions are waived with minor impacts and inconvenience. Other exemptions protect the lives of federal informers and classified military and security operations personnel or the most sensitive of national secrets. Sometimes a requester can be given data under the FOIA and still be subject to federal criminal prosecution or civil action if the requester uses it or further discloses it.

Exemption Zero— Data Not Covered by the FOIA: Generally only records of the executive branch agencies are covered by the FOIA. Records of Congress, the President, the courts, state governments, municipal corporations (local governments), and private citizens are not covered by FOIA. Agency records generally include only those records properly part of the agency’s record system, established under federal law, and do not include personal notes of government officials that are not part of or required to be part of the official agency records.

Agencies do not have to create records, create compilations, or do anything more than search for and copy existing records.

Exemption One— National Security: Matters that are specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and are in fact properly classified pursuant to such Executive order. This exemption protects classified data and special sensitive data.

Exemption Two— Internal Personnel Rules and Agency Practices: Matters that are related solely to the internal personnel rules and practices of an agency. This exemption protects things like agency exams and tests.

Exemption Three— Special Statutory Exemptions: Matters that are specifically exempted from disclosure by statute (other than 552b of this title), provided such statute requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or establishes particular criteria for withholding or refers to particular types of matters to be withheld. This exemption covers many types of data covered by other laws.

Exemption Four— Confidential Commercial, Financial, and Trade Secret Data: Matters that are trade secrets and commercial or financial information obtained from a person and privileged or confidential.

Exemption Five— Privileged Agency Memoranda: Matters that are inter-agency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the agency. Executive privilege, attorney-client privilege, and attorney work-product privilege documents are included here.

Exemption Six— Unwarranted Invasion of Personal Privacy Data: Matters that are personal and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. This exemption is related to the Privacy Act and to generally recognized case-law privacy rights.

Exemption Seven— Law Enforcement Data: Matters that are records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual.

Exemption Eight— Financial Institution Regulatory Data: Matters that are contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions.

Exemption Nine— Geological Data: Matters that are geological and geophysical information and data, including maps concerning wells.

In processing FOIA requests, it is common that more than one exemption may apply to a document, in which case each exemption must be reviewed and claimed or waived by the agency. Since the latest published Justice Department FOIA Guide (September, 1993) runs to over 500 pages, it should be noted that this summary is extremely limited and general. The case law is a constant tug-of-war between release and publication and non-release and secrecy.

Pre-Notification Procedures for Exemption Four: The one major new development affecting private parties is President Reagan’s Executive Order that sets up pre-notification procedures for release of data covered by Exemption Four (Exec. Order 12,600, 3 CFR 235 (1988)). The effect of this order is to allow “reverse FOIA” suits to bar release of data to competitors.

Comparison of FOIA and Litigation Discovery Procedures: FOIA is a one-sided discovery mechanism against the Government, and gives the Government no comparable rights against other parties. FOIA is limited to official agency records and subject to the exclusions and exemptions provided by law. Discovery procedures are two-sided mechanisms that provide roughly equal rights to all parties and generally cover all available non-privileged information, regardless of its official or unofficial nature.

Time-wise, FOIA is available anytime, whereas discovery is limited to a specific time frame within formal litigation procedures.

Data-wise, the FOIA exemptions and exclusions are far broader than discovery procedures’ limits, absent the granting of special protective orders, which are often sought in litigation. FOIA provides for no protective orders, although misuse of certain data may subject a party to criminal prosecution or civil damages.

Cost-wise, FOIA can be far more expensive because, once invoked with its payment guarantee, a party can be deluged with copies of documents as well as very large search-time bills. In discovery parties can generally only charge for the copies, not the search time.

Purpose-wise, FOIA has no limitations, although commercial searches are subject to more challenges and greater costs. Discovery is limited by the scope of the litigation and civil and criminal procedural rules.

The Privacy Act

The Privacy Act has developed into a regulated release of information act. The Justice Department manual describes the act as giving individuals protection against disclosure, rights of access, and rights of correction. In addition the act provides for uniform fair information practices.

For those systems of records that it applies to, it prescribes publication of periodic listings of agencies’ system of records in the Federal Register, along with a description of routine uses. It also requires government agencies requesting information to provide a Privacy Act notice. In addition to the routine uses, the statute lists permitted government uses of the data, including matching programs to cross-check various government programs. One such matching use is the cross checking of tax refunds for other debts and child support payment debts.

The statute also provides for review and correction of records by the persons whose names or other personal identifiers are used to index the records. The statute was also amended to provide for agency record integrity boards and procedures.

Exemptions and Exceptions:

There are important exceptions and exemptions to the act. Besides criminal investigatory and personnel use exceptions, the most important exclusion to the act is that it applies ONLY to SYSTEMS of records in which the indexing system is by personal name or identifier. It has NO APPLICATION to record systems in which other, non-personal-name or identification numbers are used to index the files.

The reason for this exclusion is the fact that, if a system of files is not indexed by personal names, theoretically no one, government or otherwise, can readily access data by name or personal identifier. This is true for paper files, but not necessarily true for electronic files subject to electronic word searches.

The practical impact of this exclusion is that there are a lot of places where personal data may be recorded in government files and records not covered by the act.

Routine Destruction of Records:

Most government records are routinely destroyed, with only a small number of determined historical interest preserved. Each agency is required to establish as part of its record management program a routine destruction schedule.

The usual procedure for most government records of no lasting value is to keep the records in an active file somewhere, while in use; then to retire them for a while to archive storage; then to destroy them a set number of years after placing them in archive storage. The time periods vary with the type of record and use. Most accounting data is disposed of within a year or two simply because the huge volume of intermediary records and checks and balances are not required to be saved. Government contract files are routinely destroyed about three or four years after a contract is closed. Even litigation files usually are destroyed around 10 years after the close of the litigation, once all applicable statutes of limitations have expired.

Unofficial Records: Private notes and copies of documents kept by government employees solely for their personal use and not required to be kept as official records and not actually kept as official records are NOT covered by the FOIA or the Privacy Act.

Electronic Records:

The official copies of electronic records and systems of records are subject to the same rules as official paper records and systems of records.

However the nature of computer systems and electronic records is such that E-Mail and other systems tend to create a lot of extra unofficial copies in readable and unreadable electronic media. The rapidity of change in both software and hardware, as well as in communication systems, has precluded the same level of control and management of electronic records as paper records, largely because of the automatic backup features of many software systems. Destruction of these records is also complicated by the various types of delete file commands and file restoration programs.

Data security is also more of a challenge with electronic data, as a number of well publicized incidents have demonstrated.

It should be recognized as a practical reality that the challenges of new technology will always be a step ahead of laws and regulations, and that no amount of law and regulation can make a perfect federal information system.

For More Information:

Each agency has designated FOIA, Privacy Act, computer systems, and records management officials. These persons should be contacted for more information about a given area as it applies to a particular agency. These persons are usually known to the agency’s lawyers or are agency lawyers themselves.

The Public Records and Oregon’s Law

“The laws of our country have given us a right — the liberty — both ofexposing and opposing arbitrary power … by speaking and writing the truth.” Andrew Hamilton, defending John Peter Zenger

Public records document practically every human activity. They follow us from birth to death, from school graduation to retirement. They shadow our movements in daily living, in business, in politics, in ordinary and extraordinary changes in our lives.

They give detail. They allow news reporters to replace mushy generalities with specific facts. Members of the public can rely on documents to get an accurate picture of human interactions

Oregon’s Public Records Law: In 1973, Oregon adopted one of the nation’s most sweeping public records laws, making virtually every document in government files open to public inspection. The fundamental philosophy of Oregon’s Public Records Law, ORS 192.410 to 192.505, is that every government document is open to public view unless it is specifically exempted by the Records Law or another law.

Over the years since 1973, the Legislature has adopted hundreds ofexemptions to the public records law’s openness, but many records are still available.

Sources of Public Record Information: Oregon Attorney General’s Public Records and Meetings Manual — The most useful source of information on Oregon’s public records law is contained in the Oregon Attorney General’s Public Records and Meetings Manual, which is updated every two years after the biennial legislative session.

It is an inexpensive book — about $15 — and it contains guidance about the law and how to use it. Being an official “Attorney General’s Opinion,” the manual offers clear and persuasive instruction on the methods of obtaining public records as well as appealing a denial of one’s request to inspect public records. The book is so comprehensive that there is no reason to repeat its contents in this manual. The Attorney General’s Manual is available directly through the Attorney General’s office or through various state bookstores.

The World Wide Web — In addition, the World Wide Web has become a useful source of information on how to obtain public records, as well as obtaining the records themselves. For example, it is possible to get full-text copies of Oregon laws through the Web by connecting to http://gopher.leg.state.or.us/.

“Open Oregon, a Freedom of Information Coalition,” a new organization, has begun helping Oregon citizens obtain public information. Open Oregon has a Web site, www.open-oregon.com, to which Web browsers can connect.

Tips on using the Public Records Law:

  • If the record you are seeking is being held by a government agency, you can assume that it is a public record, unless it is specifically exempted by state law.
  • You should make a request to the custodian of that record to inspect or copy it.
  • If the custodian says the record is exempt from disclosure, you should ask the custodian to cite the exact statutory provision that exempts the record from disclosure.
  • If you disagree with the custodian about the exemption, you have the right under the law to seek a ruling from the Attorney General (for state records) or from the local District Attorney (for city and county records).
  • The Attorney General’s manual provides a form for any petition for are view of a disclosure denial.

If you are denied access to a public record by an elected official, your only recourse is to seek redress in court, since the Attorney General and a District Attorney don’t have the authority to rule on elected officials’ actions.

Chapter 10: Broadcast Media Regulation

Broadcasting in the United States is one medium which still remains subject to substantial forms of content-based regulation, principally by the Federal Communications Commission (FCC). Justification for this regulation is based on the “public interest” rationale. Essentially that rationale is that there is a quid pro quo between the station operator (“licensee”) and the federal government which issues the operator a license in exchange for an obligation to serve the interest of the community. This obligation requires the licensee to “ascertain the needs of the community” and then provide program service to foster public understanding of those issues. How the licensee provides programming to serve the needs is left to the licensee’s discretion.

“Public Interest” Regulation:

Despite the prohibition against censorship in the Communications Act of 1934, the “public interest” standard has spawned substantial regulation in a number of areas which directly relate to the content of the programming which a station may broadcast. These include political editorials, obscene and indecent programming, lotteries, contests and promotions, children’s programming on television, recorded telephone conversations, prohibited advertising on broadcast stations.

(1) Political Editorials: For years news and issue-oriented programming was governed by the FCC’s “fairness doctrine,” a doctrine which had its genesis in the political broadcast rules adopted pursuant to ß315 of the Communications Act of 1934, as amended. The fairness doctrine was meant to insure that all sides of controversial issues aired over a broadcast station were represented. To do this the rules of the FCC imposed certain affirmative obligation on broadcast stations to identify the “controversial issues” of public importance in its community and to respond to programming, including different points of view, regarding those issues. Thus when a station carried one viewpoint on a “controversial issue” it had an obligation to present the contrasting view.

Although a well-intended idea in theory, the fairness doctrine proved a nightmare to broadcasters. With the growth of political activism, broadcasters were constantly facing claims that they had been “unfair” in covering issues or refusing to present contrasting viewpoints. In response, many stations simply backed away from the coverage of controversial matters. Ultimately the fairness doctrine was repealed by the Commission, a decision which was then later upheld by the appellate courts.

Despite the demise of the fairness doctrine, there are two corollary doctrines which remain in effect. These include the “political editorial rule” and the “personal attack rule.”

The Political Editorial rule requires that if a station editorializes either for or against a candidate for public office, the station must notify the disfavored candidate about the editorial within 24 hours; provide a transcript or tape of the editorial tape and offer the challenged candidate an opportunity to have his or her representative reply to the editorial. In order to avoid creating “equal time” rights, which would be triggered by an appearance of the candidate, the political editorial rule limits the reply to a spokesperson for the candidate.

(a) The Personal Attack Rule is invoked when a person or group’s character or integrity is impugned during the discussion of a “controversial issue of public importance.” In this instance the station must notify the person or group attacked within one week, provide a script of the program, and offer a reasonable time in which to respond. The rule does not apply to newscasts or to commentary and analysis contained in news broadcasts. The rule is usually invoked in programs involving panel discussions or talk shows.

(b) Political Candidate Advertising — Candidates for political office enjoy certain access rights to the broadcast airways. The scope of these rights depends upon whether the candidate is running for a state or local office or a federal office. In the case of a candidate for federal office, any legally qualified candidate is entitled to “reasonable access” to use a stations’ facilities, including a right to purchase program length time. “Reasonable access” is not quantified but is subject to the circumstances prevailing at the time of the candidate’s request for time.

State candidates do not have quite the same benefits as federal candidates. In fact a broadcast station has no obligation to provide any time to a candidate for state office, even a candidate for governor. However, if a station chooses to sell political time to a state candidate, that candidate’s opponent is entitled to equal time on that station. Moreover, political candidates are entitled to a discount on the price for the time charged by the station. This discounted rate is known as the “lowest unit charge,” a concept which is very complex because of the wide range of selling practices and pricing formulas employed by broadcast stations. Nonetheless, political candidates are entitled to “lowest unit rate” for any time purchased within sixty (60) days of a general election and forty-five (45) days of a primary election.

In order to qualify for “equal time” and “lowest unit charge” the candidate must appear in the political advertisement. By an “appearance,” his or her voice or visual likeness must appear in the ad. The appearance of the candidate constitutes a “use.” Without a “use” there is no access entitlement nor is there a right to lowest unit rate. Instead, the station has no obligation to sell or, in the event it does sell time on a candidate’s behalf, to charge whatever the prevailing rate is for that air time.

Should a candidate purchase time outside the protected 45 and 60-day periods a station may not charge a candidate any more than would be charged for “the comparable use” of such time by other advertisers. This prevents a station from charging one price to a retail advertiser versus another higher price to an occasional political purchase.

A station is obligated under Commission rules to provide “full disclosure” to a political candidate of the various rates and options available to them. Many stations publish rate cards which set out a variety of advertising availabilities by day and program. Since these are often subject to change, including pricing changes based on the delivery of audience, full disclosure can often be extremely burdensome. However the failure to “fully disclose” all rates and options may result in substantial fines.

The “equal time” obligations imposed on broadcasters is not limited to paid appearances. Instead, if a candidate should make a guest appearance on a morning variety show, his or her opponent has a right to request equal coverage. The “equal time” aspects of the political broadcast rules are further complicated by the various “exemptions” available to candidate appearances on certain programs. For instance, the appearance of a candidate on a “bona fide newscast” or news interview does not trigger equal time obligations. And certain talk shows which are syndicated may also be exempt. However, exemptions on major or syndicated talk shows are done an a case-by-case basis.

A station is forbidden by federal law to censor the content or comment of a candidate appearing in a political spot or program. This exemption is absolute and thus in theory allows a candidate to make libelous or obscene statements. Fortunately the law recognizes that a station does not have liability for the defamatory or libelous remarks of the candidate. Nonetheless the problem is often created in the mind of the public that a station is responsible for the remarks of a candidate.

The FCC’s sponsorship identification rules as well as the rules of the Federal Election Commission require that all paid-for political announcements carry certain precise sponsorship identification taglines. These rules even go so far as to specify the size of the letters which appear in a television screen involving a broadcast ad.

Broadcasters are also obligated to maintain a political file which must contain all requests for political time, their disposition, schedule of times provided or purchased, rates charged, the dates aired, etc. The rules require that this information be placed in that file immediately after being received. The FCC takes the position that it is important to candidates to have timely access in order to exercise whatever equal time rights they have. During the heat of a hotly contested political campaign involving multiple candidates, this can impose a significant burden upon a broadcast station.

Political broadcasting takes other guises than political spot ads. This includes political debates sponsored by broadcasters which attempt to put all competing parties on the same platform. If a broadcast station sponsors such a debate, it is exempt from equal time opportunities provided the debate has “genuine news value;” does not allow any candidate to control the format or content of the debate; and does not attempt to advance the candidacy of one candidate over another. In these instances, a station is entitled to invite only the major candidates for a particular office and may disregard minor candidates if the station determines the minor candidate is “not significant.” Moreover, the failure to invite a minor candidate to a political debate does not create any separate “equal time” rights for the minor candidate.

Determining just who is a “legally qualified candidate” is not a simple task. Certain rules have been established in an attempt to define who qualifies. Briefly, they require that the candidate must publicly announce his or her intention to run and be qualified under the applicable law to hold that office. Candidates for presidency or vice presidency of the United States are national candidates and as such must qualify as a candidate in at least ten states. An “opposing candidate” is a person legally qualified for the same office as the legally qualified candidate. Interestingly, candidates for a party’s nomination are not considered to be opponents of candidates seeking other party’s nomination. For instance, when Bill Clinton sought the Democratic nomination in 1992 and ran against seven other Democratic hopefuls, he was not considered an opponent of George Bush during the primary phase of the campaign. This ruling holds despite the fact that the candidate during the primary could be directing his or her remarks and challenging the other party’s candidates in their respective primaries.

(2) Obscene and Indecent Programming: “Indecent” programming is that which is “patently offensive as measured by contemporary community standards for the broadcast medium and describes sexual or excretory activities and organs”. On the other hand, program material is “obscene” if “the average person, applying contemporary community standards, would find that the material appeals to the prurient interest; that the material describes or depicts sexual conduct in a patently offensive manner; or taken as whole, the material lacks serious literary, artistic, political or scientific value”. Perhaps the most distinguishing feature between obscene and indecent programs is that stations are barred from carrying any obscene programs.

Not so with indecent material. As a result of the famous George Carlin broadcast of the “seven dirty words” which were determined to be indecent, the Commission adopted a rule that such indecent programming could air but only when the number of the children in the audience was reduced to a minimum, suggesting late evening hours. The Commission vigorously polices “indecent” programming and has levied fines in excess of $100,000 when it has found a station to have carried such programming. Primarily these fines have been levied against “shock jock” hosts who go through great lengths to explore sexual and excretory activities on the air.

(3) Lotteries: The broadcast of any information regarding a “lottery” is tightly regulated under federal statute and FCC rules. “Lottery” is defined as a contest or promotion involving the awarding of a (1) “prize;” (2) based on “chance” selection; and (3) for which a participant must pay “consideration.” All three elements must be present or otherwise the activity is not a lottery under federal law and under most state laws. A prize is anything of value offered in the contest. Chance is present if the award of the prize depends in whole or in part upon chance rather than skill or some other factor within a contestant’s control. (Fishing contests are expressly exempted from the federal lottery statutes.) The final element is “consideration” which usually presents the greatest difficulty in interpreting the lottery statutes and rules.

Consideration not only involves items of value but can be found if the participant has to exert substantial time and energy in order to participate. Consideration is also subject to varying interpretations, depending upon whether federal or state law is applied. Some states hold that requiring the presence of a participant at a drawing is sufficient to constitute “consideration” even though the participant has done nothing more than register for a drawing. Oregon requires that for consideration to exist, a participant is required to provide some consideration of minimal value. Exerting a modest amount of personal time to participate does not meet that requirement.

Consideration presents other problems because a participant need not pay money to participate in a lottery if he or she is otherwise required to make a purchase to participate. Thus a person purchasing a new car may have a further right to participate with other new car buyers in a drawing for a new television set. The fact that the participant paid full value for one item in order to participate in a promotion at no extra cost is still deemed to be “consideration.”

(a) State Conducted Lotteries and State Authorized Lotteries — The federal lottery laws, particularly those affecting broadcasting, were greatly relaxed in 1990. As of that date broadcasters were permitted to advertise lotteries authorized or not otherwise prohibited by state if the lottery was conducted on behalf of (1) a not-for-profit organization; (2) governmental organization; or (3) commercial entities, where clearly the lottery was occasional and ancillary to the primary business of the commercial organization. However, this change in the law did not give broadcasters carte blanche to air ads regarding lotteries. Instead there was a further requirement that the lottery be authorized by the state in which the station was located. Clearly state conducted lotteries can be advertised over radio and television.

Charitable organizations are also permitted to air information regarding their lotteries provided they obtained appropriate authorization or permits from the state government. Occasional commercial lotteries have not benefited very much under the new federal rules because most states, including Oregon, prohibit those lotteries.

(b) Indian Gaming — Another form of gaming or lottery activity which is permitted to be advertised over broadcast facilities is Indian gaming. There are restrictions on Indian gaming ads as the rules require that the gaming and lotteries be conducted on Indian land; that they be operated by the Tribe; that the Indian gaming is permitted under state law where conducted; the state has entered into a “compact” to permit the games where participants “play against the house” instead of each other, e.g. slot machines, blackjack, etc.

(4) Contests and Promotions: The FCC has adopted a rule which prohibits the broadcasting of “false information concerning a crime or catastrophe,” if a station knows that the information is false or it is foreseeable that the broadcast will cause “substantial public harm” and such broadcast does in fact cause such harm to occur. Instances where broadcasts have announced that radio stations had been seized by Indians or that a volcano had erupted, or that the country was under nuclear attack, have been deemed the kind of catastrophe which will cause “substantial public harm.” However, stations can engage in creative programming and will not be presumed to propose foreseeable harm if a disclaimer “clearly characterizes the program as fiction” and is presented in a reasonable manner under the circumstances. At the heart of this rule is the goal of avoiding such public hysteria as resulted from the famous Orson Wells’ broadcast of the Martian invasion in 1938. The FCC has stated that the rule is only intended to prevent false reports of crimes and catastrophes and was not intended to prevent “harmless pranks.”

(5) Children’s Programming on Television: Under congressional legislation adopted in 1990, television stations are obligated to air at least three hours a week of programming specifically meant to serve the “educational informational needs of children” between 7:00 a.m. and 10:00 p.m. The failure to air this minimum amount of programming has cost television stations dearly with major fines ranging as much as $150,000.

In addition to airing the programming, television stations must file in their public inspection files on a quarterly basis a report showing their efforts during the previous three months and their proposed efforts for the succeeding quarter to serve the educational and information needs of the children. Furthermore, television stations must publicize the existing and locations of the reports and file them on an annual basis with the FCC.

In addition to minimum requirements television stations are also limited in the amount of commercial matter which may appear in a children’s program. The current limits are that no more than 10_ minutes of commercial time may appear on weekend programs designed for children and no more than 12 minutes during the weekdays. These limits apply to those programs designed for an audience of 12 years old and under.

(6) Recorded Telephone Conversations: Both radio and television stations today engage in active news coverage. A regular feature of news coverage is the recordation of telephone conversations. The recordation of telephone conversations brings at least three separate sets of laws into play: the FCC rules, state laws, and the federal criminal code. Federal law allows the recordation of a telephone conversation if only one party has given consent. Thus a newspaper reporter initiating a call to a third party can record that conversation without seeking the recipient’s consent. However, if a broadcast station records such a conversation, that does not entitle the station to rebroadcast that conversation over the air as part of its programming. Instead, the FCC rules require that “all parties” must consent prior to the beginning of the conversation. It is a violation of the rule to air a recorded conversation if prior consent has not been obtained, even though the party may later consent to the airing of that conversation. Finally, state laws often require that both parties consent to a conversation before it can be recorded.

Thus, even before considering airing a recorded conversation as part of a radio or television program, the broadcaster’s first concern is to make sure that all parties consented to the conversation before recordation. The problems with recorded conversations most often surface with morning talk shows where hosts will make random calls to members of the public. Unless that person has been forewarned and has consented to the call, the conversation cannot be recorded or broadcast.

Another area where the unauthorized use of communications arises is in the “intercept” of information transmitted over a discrete frequency. For instance, if newsroom personnel monitor a police channel for the purpose of securing information on accidents or crimes and then utilize that information as part of a news report, the broadcaster is exposed to both civil and criminal penalties for an unlawful intercept. While a news organization may listen to such transmissions, they may not divulge the content of those transmissions.

Competition for being first with the news in broadcasting can be intense. However, the fact that one station attains a news story and airs it does not permit a competing station to rebroadcast that programming without first obtaining the written consent of the originating station. The FCC rules require that copies of written consents for such rebroadcasts be available at the station. The key is the consent of the originating station and not that of the FCC.

(7) Prohibited Advertising on Broadcast Stations:

Hard Liquor Advertising— In addition to the limits on the amount of commercial material which may appear in children’s programs, there are other areas of content-based commercial matter which are heavily regulated. These include the advertising of alcoholic of beverages and the ban on advertising tobacco products.

While there is no federal prohibition against the advertisement of alcoholic beverages by broadcasters, many states do in fact prohibit the advertisement of alcohol other than beer and wine. Oregon bars the advertising of hard liquor ads on any broadcast medium.

Tobacco Products— Congress has banned the advertising of cigarettes and little cigars over broadcast facilities. In 1986 Congress also banned the advertising of smokeless tobacco products such as chewing tobacco and snuff. The law does not bar the broadcast advertising of pipe tobacco or cigars provided the cigar is not a “little cigar.” Although not addressed it is generally understood that a station may carry advertising for cigarette papers

Fireworks— Under Oregon law, the broadcast of any advertisement for the sale of fireworks, the use or possession of which is “unlawful” in Oregon, is prohibited. Generic ads for fireworks which do not mention specific items prohibited, are probably permissible. Broadcast stations must be careful though because of the dual state-local approached to fireworks regulation which exists in Oregon. Thus a particular fireworks may be permissible under state law but prohibited under county or municipal ordinance. Under those circumstances the ad would be prohibited.

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  1. Media Guide Handbook on Oregon Law and Court System

Chapter 1: Free Press and Fair Trial

Several institutions exist in Oregon to help assure the rights of free press and fair trial. Their purpose is to protect both— through cooperation and consultation rather than by confrontation.

They include:

Oregon State Bar-Press-Broadcasters Council: This council was established in 1962 by the Oregon State Bar (OSB), the Oregon Newspaper Publishers Association (ONPA) and the Oregon Association of Broadcasters (OAB) to work on matters of common interest to the three professions,

The council is composed of six members appointed by Oregon Association of Broadcasters, six members appointed by the Oregon Newspaper Publishers Association and 12 members appointed by the Oregon State Bar. It operates on a yearly calendar that begins with the September meeting and ends with the May meeting. It meets on the first Saturdays of September, November, February and May, and the meetings are hosted on a rotating basis by the member organizations. If the September meeting date falls on the Labor Day weekend, the September meeting is on the second Saturday.

The council is empowered to act on its own authority, without referring its actions to the parent organizations, but it may not take positions on behalf of its parent organizations.

The chair of the joint council shall rotate annually by its calendar years. For example, in 1997-98, the chair was held by the Oregon State Bar; in 1998-99, the chair was held by the Oregon Newspaper Publishers Association; and in 1999-2000, by the Oregon Association of Broadcasters.

Much of the work of the council is focused on issues of free press and fair trial, but from time to time the joint council organizes and sponsors other activities of mutual benefit to the legal and news professions, such as conferences, seminars and the publication of this handbook.

Any person may bring a matter before the joint council. It can be reached through the central office of any of the three sponsoring organizations: the OSB, ONPA or OAB.

Guidelines for Reporting and Comment on Criminal Proceedings: The first main activity of the joint council was, in 1962, to draft and agree upon a joint statement of principles for news reporting and comment on criminal proceedings, aimed at assuring the public the opportunity to be kept fully informed without violating the rights of any individual.

In 1967 the joint council added to this statement a set of guidelines for reporting of criminal proceedings. These recommendations, often referred to as the ìOregon Bar-Press Guidelines,î are intended to advise reporters, lawyers, law enforcement officials and other involved persons as to what is generally appropriate to say, or not to say, about a criminal proceeding prior to a trial. The guidelines also make recommendations concerning the photographing of criminal defendants.

The guidelines are advisory only. The decision on whether to follow them in a particular case is left to the discretion of the individuals involved. However, they have been approved by the respective conventions of the Oregon State Bar, Oregon Newspaper Publishers Association and Oregon Association of Broadcasters.

The joint council has also established a procedure for dealing with complaints of violations of the bar-press guidelines.  In essence, it calls for the joint council to try to mediate a resolution of the complaint between the parties involved. If this is unsuccessful, the joint council is authorized to appoint a subcommittee to investigate and publish an advisory opinion as to whether a violation of the guidelines has occurred.

Judicial Conference Resolution of 1977: In 1975 and 1976 the joint council considered the constitutional issues raised by judicial restraining orders aimed at limiting news coverage of criminal proceedings, particularly pre-trial proceedings. It proposed a procedure by which a judge, lawyer or journalist who anticipates a possible fair trial-free press conflict in a particular case can attempt to have the issues resolved by voluntary consultation rather than by issuance of a court order. The Oregon Judicial Conference considered and amended the joint councilís draft and then adopted it unanimously on April 20, 1977, as a recommended procedure for Oregon judges to follow.

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