open oregon

Sample letter to a judge requesting that a search warrant, return on the warrant and the affidavits be unsealed.
This courtesy of Therese Bottomly, managing editor/news, of The Oregonian

The Hon. Julie Frantz
Multnomah County Courthouse
1021 S.W. Fourth Ave., Suite 312
Portland, OR 97204

IN THE CIRCUIT COURT OF THE STATE OF OREGON
FOR THE COUNTY OF MULTNOMAH/ Case No. 04-01-30321 .

IN RE STATE OF OREGON, Plaintiff, v. Deniz Aydiner, Defendant.

Feb. 2, 2004

Dear Judge Frantz:

I, Therese Bottomly, managing editor/news for The Oregonian, a daily newspaper in Portland, respectfully request access to the search warrant affidavits, search warrant returns and arrest warrant affidavits in the above case. I understand those documents have been placed under seal, but no copy of the sealing order is public.

Although the Oregon Supreme Court has not ruled directly on the procedural issue of intervention by a member of the public or press in a judicial proceeding, it has held, in Oregonian Publishing Co. v. O’Leary, 303 Or 297, 301-02, 736 P2d 173 (1987), that “[m]embers of the media and public may *** assert in their own behalf ***” the open courts requirement of the Oregon Constitution.

Several circuit court judges in Oregon have therefore allowed intervention to the news media in similar circumstances. See, e.g., State v. Davey, Multnomah County Circuit Court No. C8811-37609 (Order dated November 6, 1989, per Judge Frankel); State v. Hurwitz, Multnomah County Circuit Court No. C98-1139654 (plea agreement unsealed by Judge Redding, pursuant to Oregonian motion, August 21, 2000).

Based on these authorities, I respectfully ask the court to treat this letter as a request to have certain court records unsealed. Specifically, I seek an order releasing for public inspection the affidavit or affidavits filed in support of the warrant that was issued for the arrest of defendant Aydiner and any search warrant affidavits and search warrant returns in the case.

Neither the Oregon Supreme Court nor the United States Supreme Court has decided whether there is a right of access to materials filed in connection with an arrest warrant application, either under the common law or under the First Amendment or other state or federal constitutional provisions. However, a right of access to search warrant materials has been recognized by several lower courts, both at common law and under the First Amendment. Thus, the Washington Supreme Court has held that there is a “presumption of openness” as a matter of common law that applies to a search warrant, affidavits filed in support of an application for a warrant, “and the records pertaining thereto.” Seattle Times Co. v. Eberharter, 713 P2d 710, 711 (Wash 1986). The U.S. Court of Appeals for the Fourth Circuit has agreed: “a newspaper has a common law right of access to affidavits supporting search warrants ***.” Matter of Application & Aff. For a Search Warrant, 923 F2d 324, 326 (4th Cir 1991).

Other courts have held that there is a right of access to such documents grounded in the First Amendment. “We are persuaded that the first amendment right of public access does extend to the documents filed in support of search warrant applications.” In re Search Warrant for Secretarial Area — Gunn, 855 F2d 569, 573 (8th Cir 1988).

Furthermore, whether the right is grounded in common law or in the First Amendment, ” *** [T]he party seeking access is entitled to a presumption of entitlement to disclosure. It is the burden of the party seeking closure *** to present facts supporting closure and to demonstrate that available alternatives will not protect his rights. ***.” Oregonian Pub. v. U.S. Dist. Court for Dist. of Or., 920 F2d 1462, 1467 (9th Cir 1990), cert denied sub nom Wolsky v. Oregonian Pub. Co., 501 US 1210, 111 S Ct 2809, 115 L Ed 2d 982 (1991).

And if a court decides that denial of public access is appropriate, it must state the reasons for its conclusions: “[t]he court must not base its decision on conclusory assertions alone, but must make specific factual findings.” Id. at 1466.

Here, there is no compelling reason for sealing the affidavits that were submitted in support of the arrest warrant for the defendant in this case. He is in custody, and there is no risk of flight. Sealing the warrants is not justified on the theory that it is necessary to avoid “tainting” the jury pool, for the fact of the defendant’s arrest in connection with the death of Kate Johnson is already public knowledge, and it is unlikely that public disclosure of the arrest warrant materials will widen the universe of people who are aware of the arrest and the pendency of the charges against the defendant.

In these circumstances, the affidavit or affidavits filed in support of the arrest warrant for Aydiner should be made available immediately for public inspection. The order sealing these documents should be vacated. If the sealing order is not vacated, the court should make specific findings of fact that justify the sealing.

Please do not hesitate to contact me if you have any questions about this request.

Respectfully submitted,

Therese Bottomly
Managing editor/news

cc:
Don Rees
Multnomah County District Attorney’s Office
1021 SW Fourth Avenue, Room 600
Portland, OR 97204

Attorney for the defendant:
Marc Sussman
1906 SW Madison
Portland , OR 97205

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Related posts:

1. Sample request letter to open an arrest warrant and affidavits
2. Sample letter to request camera coverage in court
3. Sample court memo on media coverage of high profile case (State v. Kip Kinkel)

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Sample letter seeking to unseal an arrest warrant and affidavits supporting arrest warrant

THERESE BOTTOMLY
MANAGING EDITOR/NEWS

Nov. 5, 2003

IN THE CIRCUIT COURT OF THE STATE OF OREGON
FOR THE COUNTY OF MULTNOMAH

STATE OF OREGON, Plaintiff,
v.
Dean White; Luis Miguel Valenzuela; Adrian Filberto Gutierrez; Terrelle Lashaun Tucker; Jesus Ramon Gastelum; and Abraham Paredes Silva.

Defendants.

REQUEST FOR RELEASE OF ARREST WARRANT AND AFFIDAVITS IN SUPPORT OF ARREST WARRANT

I. REQUEST TO INTERVENE

I, Therese Bottomly, managing editor of The Oregonian, a daily newspaper in Portland, Oregon, respectfully move for an order permitting them to intervene for the limited purpose of seeking an order unsealing certain records and documents on file in this case.

Several state and federal courts have held that intervention is the proper procedural device to be used by a non-party to challenge orders that deny public access to judicial proceedings and court documents. In re Associated Press, 162 F3d 503 (7th Cir 1998); In re Subpoena to Testify Before Grand Jury, 864 F2d 1559, 1561 (11th Cir 1989); News American Div., Hearst Corp. v. State, 447 A2d 1264, 1271 (Md 1982).

Even where formal “intervention” has not occurred, it is nevertheless “well settled that representatives of the news media have standing to contest court orders restricting public access to legal proceedings.” Mississippi Publishers v. Coleman, 515 So2d 1163, 1164-65 (Miss 1987). Accord United States v. Brooklier, 685 F2d 1162 (9th Cir 1982) (newspaper publisher and its reporter have standing to challenge orders denying them access to criminal proceedings, id. at 1165; “***those excluded from the proceeding must be afforded a reasonable opportunity to state their objections ***.” Id. at 1167-68).

Although the Oregon Supreme Court has not ruled directly on the procedural issue of intervention by a member of the public or press in a judicial proceeding, it has held, in Oregonian Publishing Co. v. O’Leary, 303 Or 297, 301-02, 736 P2d 173 (1987), that “[m]embers of the media and public may *** assert in their own behalf ***” the open courts requirement of the Oregon Constitution.

Several circuit court judges in Oregon have therefore allowed intervention to the news media in similar circumstances. See, e.g., State v. Davey, Multnomah County Circuit Court No. C8811-37609 (Order dated November 6, 1989, per Judge Frankel); State v. Hurwitz, Multnomah County Circuit Court No. C98-1139654 (plea agreement unsealed by Judge Redding, pursuant to Oregonian motion, August 21, 2000).

Based on these authorities, I respectfully request the court to treat this letter as a request to have certain court records unsealed.

II. REQUEST TO UNSEAL DOCUMENTS

I move the court for an order releasing for public inspection the affidavit or affidavits filed in support of the warrant that was issued for the arrest of defendants Dean White; Luis Miguel Valenzuela; Adrian Filberto Gutierrez; Terrelle Lashaun Tucker; Jesus Ramon Gastelum; and Abraham Paredes Silva. It is the understanding of the moving parties that these documents have been sealed pursuant to orders issued by the Honorable Michael Marcus.

Neither the Oregon Supreme Court nor the United States Supreme Court has decided whether there is a right of access to materials filed in connection with an arrest warrant application, either under the common law or under the First Amendment or other state or federal constitutional provisions. However, a right of access to search warrant materials has been recognized by several lower courts, both at common law and under the First Amendment. Thus, the Washington Supreme Court has held that there is a “presumption of openness” as a matter of common law that applies to a search warrant, affidavits filed in support of an application for a warrant, “and the records pertaining thereto.” Seattle Times Co. v. Eberharter, 713 P2d 710, 711 (Wash 1986). The U.S. Court of Appeals for the Fourth Circuit has agreed: “a newspaper has a common law right of access to affidavits supporting search warrants ***.” Matter of Application & Aff. For a Search Warrant, 923 F2d 324, 326 (4th Cir 1991).

Other courts have held that there is a right of access to such documents grounded in the First Amendment. “We are persuaded that the first amendment right of public access does extend to the documents filed in support of search warrant applications.” In re Search Warrant for Secretarial Area — Gunn, 855 F2d 569, 573 (8th Cir 1988).

Furthermore, whether the right is grounded in common law or in the First Amendment, ” *** [T]he party seeking access is entitled to a presumption of entitlement to disclosure. It is the burden of the party seeking closure *** to present facts supporting closure and to demonstrate that available alternatives will not protect his rights. ***.” Oregonian Pub. v. U.S. Dist. Court for Dist. of Or., 920 F2d 1462, 1467 (9th Cir 1990), cert denied sub nom Wolsky v. Oregonian Pub. Co., 501 US 1210, 111 S Ct 2809, 115 L Ed 2d 982 (1991).

And if a court decides that denial of public access is appropriate, it must state the reasons for its conclusions: “[t]he court must not base its decision on conclusory assertions alone, but must make specific factual findings.” Id. at 1466.

Here, there is no compelling reason for sealing the affidavits that were submitted in support of the arrest warrant for the defendants in this case. They are in custody, and there is no risk of flight. Sealing the warrants is not justified on the theory that it is necessary to avoid “tainting” the jury pool, for the fact of the defendants’ arrests in connection with the death of Marcus Moultrie is already public knowledge, and it is unlikely that public disclosure of the arrest warrant materials will widen the universe of people who are aware of the arrests and the pendency of the charges against the defendants. Similarly, disclosure of the materials will not prejudice any ongoing investigation, or tip off any supposed co-conspirators or witnesses.

In these circumstances, the affidavit or affidavits filed in support of the arrest warrant for Dean White; Luis Miguel Valenzuela; Adrian Filberto Gutierrez; Terrelle Lashaun Tucker; Jesus Ramon Gastelum; and Abraham Paredes Silva should be made available immediately for public inspection. The order sealing these documents should be vacated. If the sealing order is not vacated, the court should make specific findings of fact that justify the sealing.

Respectfully submitted,
Therese Bottomly
Managing editor/news

cc:

Brenda Allen
Multnomah County District Attorney’s Office
1021 SW Fourth Avenue, Room 600
Portland, OR 97204

Attorneys for the defendants:
Scott Raivio
Diane Rader
David Wagner
Gayle Kvernland
Craig Gabriel
Downing Bethune

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Related posts:

1. Sample letter to request camera coverage in court

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Sample letter requesting public access (camera) coverage of sensitive trial

The Hon. Kimberly Frankel
Multnomah County Courthouse
1021 S.W. Fourth Ave., Suite 600
Portland, OR 97204

RE: STATE OF OREGON V. LADON STEPHENS

Dear Judge Frankel:

Please consider this The Oregonian’s request for public access coverage and to be the still-photography pool for such coverage. Also, please find enclosed samples of orders and guidelines for coverage of a past case of intense media interest.

Pursuant to UTCR 3.180, Oregonian Publishing Company respectfully requests the court to allow public access coverage of the trial in this case. Oregonian Publishing Company publishes The Oregonian, a daily newspaper based in Portland, Oregon, which intends to have a reporter present at the trial and to publish news reports concerning the trial.

As of Aug. 1, 1999, UTCR 3.180 has been amended in a significant way. Former UTCR 3.180, which was in effect at the time of this court’s ruling in February 1999, was based on a presumption against public access coverage. The former rule began with this statement:

“(1) Except as authorized under this rule:

“(a) There shall be no public access coverage in any courtroom or in any area on courthouse premises or environs under the control and supervision of the court.

“(b) There shall be no public access coverage equipment in any courtroom at any time.”

In contrast to the former rule, the current rule is based on a presumption in favor of public access coverage. The current rule begins with this statement:

“(1) Courtrooms. Upon request or on the court’s own motion, after notice to all parties, public access coverage shall be allowed in any courtroom, except as provided under this rule.”

The presumption in favor of public access is reinforced by subparagraph (3) of the rule, which reads in part as follows:
“(3) Limitations on Denial of Public Access Coverage in Courtrooms. A judge may deny a request for or terminate public access coverage only if the judge makes findings of fact on the record setting forth substantial reasons for the denial.” (Emphasis added.)

In making the findings required by UTCR 3.180(3), the court must do more than simply repeat the conclusions that may justify denial of public access coverage (that is, that such coverage “would interfere with the rights of the parties to a fair trial or would affect the presentation of evidence or outcome of the trial,” UTCR 3.180(3)(a), or that “[a]ny cost or increased burden resulting from the public access coverage would interfere with the efficient administration of justice,” UTCR 3.180(3)(b)). There has not yet been any Oregon appellate decision involving the new rule, but appellate decisions in other areas of the law underscore the necessity for specific, detailed findings of historical facts that are sufficient to demonstrate the “substantial reasons” required by the rule for denying public access coverage.

For example, in Pamplin v. Victoria, 319 Or 429, 877 P2d 1196 (1994), the Court held that the sanction of dismissal under ORCP 46B(2)(c) is a “‘situation in which special findings are a prerequisite to meaningful review by an appellate court.’” 319 Or at 436 (quoting Mattiza v. Foster, 311 Or 1, 10, 803 P2d 723 (1990)). The Court in Pamplin held:
“To assess the propriety of imposing that sanction, an appellate court needs to know (1) the historical facts on which the trial court based its decision to impose it and (2) the analytical process by which the trial court concluded that dismissal is ‘just’ in view of those facts and in view of the other sanctions that are available.” 319 Or at 436 37.

The Court made a similar statement in Sunnyside Neighborhood vs. Clackamas County Commissioners, 280 Or 3, 21, 569 P2d 1063 (1977), involving appellate review of a land use decision by a board of county commissioners:
“What is needed for adequate judicial review is a clear statement of what, specifically, the decisionmaking body believes, after hearing and considering all the evidence, to be the relevant and important facts upon which its decision is based. Conclusions are not sufficient.”

The same thing is true when a trial court awards attorney fees under ORS 20.075(1):
“Efficient and meaningful appellate review for abuse of discretion cannot occur on the present record, because we can only speculate about the possible relevant facts and legal criteria relied on for the court’s award of attorney fees. Adequate findings about those matters need not be complex or lengthy. Rather, they must describe the relevant facts and legal criteria for the court’s decision to award or deny attorney fees in any terms that are sufficiently clear to permit meaningful appellate review.” McCarthy v. Oregon Freeze Dry, Inc., 327 Or 84, 96, 957 P2d 1200, on recons. 327 Or 185, 957 P2d 1200 (1998).

Accord, Mattiza v. Foster, supra (trial court must make specific findings of fact to justify an award of attorney fees under ORS 20.105(1)); Schoch v. Leupold & Stevens, 325 Or 112, 120, 934 P2d 410 (1997) (in review of attorney fee award by Workers Compensation Board, Court held “that the Board’s order does not contain a sufficient explanation to permit an appellate court to review the Board’s exercise of discretion in setting a reasonable attorney fee”); Plere Publishers, Inc. v. Capital Cities/ABC, Inc., 120 Or App 36, 38, 852 P2d 261, rev den 317 Or 583, 859 P2d 540 (1993) (trial court must make “special findings” to permit meaningful appellate review of sanctions imposed under ORCP 17C); Stasch v. ’69 Inv., Inc., 147 Or App 46, 53, 934 P2d 630 (1997) (trial court must make “findings of historical fact” to support order of dismissal under ORCP 46 D).

Federal appellate decisions involving review of orders denying access to court proceedings or documents have similarly stressed the necessity on the part of the trial court to make specific findings of historical fact to support such orders. Oregonian Pub. v. U.S. Dist. Court for Dist. of Or., 920 F2d 1462, 1466 (9th Cir 1990), cert denied 501 US 1210, 111 S Ct 2809, 115 LEd2d 982 (1991) (in deciding to seal plea bargain agreement, “[t]he court must not base its decision on conclusory assertions alone, but must make specific factual findings”); In re Washington Post Co., 807 F2d 383, 391 (4th Cir 1986) (order closing courtroom must be supported by findings that are “specific enough to enable the reviewing court to determine whether closure was proper”); United States v. Brooklier, 685 F2d 1162, 1168 69 (9th Cir 1982) (courtroom closure order must be supported by findings “sufficiently specific to show” that substantive prerequisites for closure have been met; “[g]eneral statements that the court concludes closure is necessary” are insufficient); Press Enterprise Co. v. Superior Court, 464 US 501, 510 11, 104 S Ct 819, 78 LEd2d 629 (1984) (order closing plea hearing and sentencing hearing must be supported by findings).

Oregonian Publishing Company respectfully submits that there are no historical facts to support a conclusion that public access coverage of the trial of this case “would interfere with the rights of the parties to a fair trial or would affect the presentation of evidence or outcome of the trial,” UTCR 3.180(3)(a), or that “[a]ny cost or increased burden resulting from the public access coverage would interfere with the efficient administration of justice,” UTCR 3.180(3)(b).

There was a great deal of public interest in each of these cases, and so far as The Oregonian is aware, no contention was ever made that its publication of photographs interfered in any way with the conduct of the proceeding or the rights of the parties.

There is a justifiably high degree of public interest in the trial of this case, and public access coverage will increase the public’s perception that the trial will bring about a just and fair result. Public access coverage should be allowed.

Because some witnesses are minors and victims of sexual abuse, The Oregonian understands that the court may impose limitations allowed by UTCR 3.180, including the ban on public access coverage of jurors, voir dire and per paragraph (4) particular witnesses if the judge finds on the record that public access coverage would endanger the welfare of the witness or materially hamper the witness’ testimony. Additionally, The Oregonian recognizes that paragraph (2)(d) provides an additional means to limit photography if a victim-witness requests.

Respectfully submitted,

Therese Bottomly
Managing Editor/Oregonian Publishing Company

Here is a sample set of media guidelines for a high-profile criminal case where a judge expects a crush of reporters and cameras.

STATE OF OREGON CIRCUIT COURT
125 East 8th Avenue
Eugene, OR 97401

MEMORANDUM
To: All interested media
From: Kip Leonard, Presiding Lane County Circuit Judge
September 14, 1999 Re: St. v. Kinkel

Trial of St. v. Kinkel will begin Monday, September 27, 1999.
The trial is anticipated to last a month or more. Except for initial
juror orientation, proceedings will be held in circuit courtroom 303
with the Honorable Jack Mattison presiding. Tuesday through Friday trial
will be held from 9:00 a.m. to 12:00 noon and from 1:30 to 5:00 p.m.. It
is customary to have at least one recess in both the morning and
afternoon sessions. Trial is also likely to be held on Monday
afternoons. Juror orientation on September 27th will be held in the
Wheeler Pavilion at the Lane County Fairgrounds.

The court has three primary considerations which will affect the
conduct of the trial and the media’s opportunity to observe and report
the proceedings: 1. Courthouse and courtroom security; 2. Courtroom
decorum; 3. Courthouse functions and other proceedings during the course
of the trial.

Security for the courthouse and the trial is the joint
responsibility of the court and the Lane County Sheriff’s Office. The
foundation for the public’s access to the trial is the security of the
building and the people in it. There is a monitored security entrance to
the courthouse through which all people entering the building must pass.
During the trial there will also be a monitored security entrance at the
door to courtroom 303. During the course of the trial there are also
thousands of other scheduled events in the Lane Courthouse and there are
countless people who need access to the various services provided in the
building. The following rules will be enforced:

1. No bags, containers, packages or similar objects will be
permitted in the courtroom. This includes common items such as purses
and backpacks. Also, no weapons of any type will be allowed in the room,
including such things as pocket knifes or nail clippers. There will be
no storage facilities for these items in the courthouse. Working members
of the press may have tools of their trade.

2. There shall be no electronic recording devices permitted in
the courtroom. Laptop computers capable of sound recording must not be
used to record.

3. Cell phones and pagers must not make any audible sound in the
courtroom. There shall be no use of phones within the courtroom.

4. Spectators allowed in the courtroom must be in their seats
before court is commenced. Readmission to the courtroom will be allowed
only at breaks.

5. Visible or audible reactions to courtroom proceedings will
not be allowed.

6. There is a written order in place prohibiting still and video
or motion picture camera photography and recording of trial proceedings.

A copy of that order is included with this material.

7. Spectators will not be allowed to observe the trial from
outside of the courtroom. The media’s access to the trial and the
building will be subject to the court’s order of September 14, 1999
and the attached Media Guidelines.

The court will not issue press statements or hold briefings at
any time regarding the trial. Court staff will not answer questions
concerning the trial or proceedings. A dedicated phone line will provide
essential information concerning the trial. The number is (541)
682-2330. A copy of the court’s file is available for press and public
viewing at the File Center on the second floor of the courthouse.
Included with these materials is a copy of the “Oregon State
Bar ­ Press ­ Broadcasters Joint Statement of Principles” and a
copy of the “Guidelines for Disclosure and Reporting of Information on
Criminal Proceedings”, which are commonly referred to as the
“Bar/Press Guidelines.” The court and its employees are ethically
bound to follow these. The court expects all representatives of Oregon
media who recognize these principles to adhere to them. The court also
expects all other media representatives to respect the guidelines’
language and intent.

Attachments:
Media Guidelines
Order (9/14/99)
Order Regarding Public Access Coverage
General Order
OSB/Press Joint Statement of Principles
Guidelines for Disclosure

MEDIA GUIDELINES
State vs. Kipland Philip Kinkel
September 14, 1999

General Conduct:
It is understood there shall be no camera or recording device of
any kind used in the courtroom. It is understood there shall be no
attempt whatsoever to contact any juror in the case, subject to
contempt-of-court penalties, while the trial is in progress.
Seating for media in the courtroom:

The following media shall have a guaranteed seat for every day
of the trial:

The Register-Guard
The Oregonian
The Associated Press
The Springfield News
KEZI-TV (ABC)
KVAL-TV (CBS)
KMTR-TV (NBC/CNN)
KLSR-TV (FOX)
KUGN radio (CBS)
KLCC radio (NPR)
KPNW radio (ABC)

A pool sketch artist who will be retained by the consortium and
whose work will be available through the consortium’s networks and
affiliations.

The remaining two seats, and any unclaimed seats, will be
available daily through a lottery to all other media interested in
attending the trial that day. (The lottery process is described below.)

Media with guaranteed seating must comply with the following
conditions:
1) Coverage of all events in the courtroom during the trial
shall be pooled to networks and affiliates with the goal of providing
this information as quickly as possible to as many media outlets as
possible. Media without guaranteed seating must make their own
arrangements through their networks and/or local affiliates to obtain
trial coverage.
1) Media with guaranteed courtroom seating shall conform with
all directions of the court — particularly the limitation on entering
and leaving the courtroom while trial is in session.
2) Any cell phone, pager or laptop computer taken into the
courtroom must be deactivated or operated in a fashion to prevent any
distracting noise.
All media must comply with the following conditions:
3) Photography on the third floor of the courthouse shall be
done by a pool consisting of one video and one still photographer. Video
photographers for the third-floor pool shall be provided by KVAL-TV,
KMTR-TV, and KEZI-TV. Bill Goetz of KEZI-TV (485-5611, ext. 4008) will
serve as video coordinator. The Register-Guard, The Associated Press,
and The Oregonian will collaborate for staffing the still photography
position. Rob Romig of The Register-Guard (338-2583) will serve as still
photography coordinator. All pool photographers shall comply with court
rules which confine photographers to an area marked by a yellow line on
the floor and which forbid use of flash and artificial light.
4) No taped interviews shall be conducted in the hallways and
corridors on the third floor of the courthouse. No location within the
courthouse is available for taping or broadcasting of news reports.
5) Because of space limitations, there will not be a room or
area available for the media to store equipment or conduct business.
6) An interview area will be established on the plaza outside
the courthouse for interviews with victims, witnesses and others during
the course of the trial. News media shall confine their interviews to
the plaza area, allowing those victims and witnesses who do not wish to
be interviewed, the freedom to enter and leave the courthouse without
interference.
7) Photographers will not have access to photograph the
defendant upon arrival or departure from the courthouse or jail.
8) All media will be subject to the same security measures
required of the public when entering the secured area of the courthouse.

Lottery procedure:
9) All media with guaranteed seating in the courtroom must claim
their
credentials daily by reporting to a designated place at least
one-half hour before the scheduled start of the trial. All credentials
unclaimed thirty minutes before the start of the trial shall be placed
in the daily lottery. A lottery thirty minutes before the start of trial
shall determine which media shall have unclaimed credentials for the
day. Media representatives without guaranteed seating must apply daily
for the lottery and must be present for the lottery drawing in order to
claim credentials drawn in the lottery.
10) The 8:30 a.m. daily deadline for media with guaranteed
courtroom seating to claim their credentials is absolute. No exceptions
will be made.
11) Buying and selling of credentials for media courtroom
seating is not permitted and will result in forfeiture of the right to
participate in the lottery. Media with guaranteed daily trial seating
may assign the seat to any staff member or affiliate of the media with
guaranteed daily trial seating.
12) To be eligible for the media lottery, a reporter must be
employed by a newspaper or magazine with paid circulation or must work
for a broadcasting entity licensed by the FCC.

Violations:
Violators will be reported to Presiding Judge Kip Leonard
(682-4254) or Court Administrator David Factor (682-4166). Violation of
court rules or orders will result in loss of privileges and may be
subject to punishment for contempt of court.

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Related posts:

1. Brief summary and citation on access to juvenile courts

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Request for information on subpoenas

Hello, all —

I am Kurt Wimmer, a media lawyer who often represents NPPA on First Amendment matters, and I have a favor to ask of all of you. The top media law organization in the country, the Media Law Resource Center www.medialaw.org , is compiling a study of efforts of media organizations to resist subpoenas demanding copies of newsgathering materials. It is putting together all statements that journalists have filed in opposition to demands by lawyers, prosecutors and courts for newsgathering materials such as photographs, negatives, notes and the like. This information will be used in a study that will help all of us better protect our materials in the future.
If anyone has a statement they have used to oppose a subpoena or other demand for your newsgathering materials, I would love to have a copy. Or if you can remember signing something but didn’t keep a copy, just drop me an email with anything you can remember about it and I might be able to track it down. I can be reached at kwimmer@cov.com or by using the information below. Thanks very much!

Kurt

Kurt Wimmer <kwimmer@cov.com>
Covington & Burling <www.cov.com>
1201 Pennsylvania Avenue, N.W., Washington, D.C.  20004-2401
202-662-5278 voice, 202-778-5278 fax, 202-271-5278 mobile

By Andy Dworkin
Staff Writer/The Oregonian

I can not confirm
Whether that man lives or dies
If you have no name
– A HIPAA Haiku, by Andy Dworkin

A new federal law called HIPAA (for Health Insurance Portability and Accountability Act) is making life difficult for reporters who have to call a hospital, doctor, nurse, paramedic or other health worker to get information about a patient. The law limits the amount of information that any health worker who electronically transmits information (i.e. basically all health workers) can give about patients. It is especially causing trouble for people working cops shifts.

While the law is very long and complicated, here is a summary of what reporters should know:

– You must already know the patient’s name to get any information. Hospitals, etc., will generally give you a patient’s one-word condition (good, fair, serious, critical, dead) if you tell them the person’s name. They are also supposed to tell you generally where they are in the hospital (the OR, ICU, recovery, etc.) but usually don’t unless you ask them.

– If you have the name wrong, or no name, you’ll get nothing. Health folks are very scared because HIPAA violations have big penalties (fines up to $50,000 and criminal charges). So they won’t say, “Oh, it’s Melanie Johns, not Melanie Johnson.” They also will no longer identify or give information based just on descriptions, such as “the 60-year-old man who had his leg ripped off by pit bulls in Downtown Portland.” You have to know the name.

– Therefore, try to get and double-check the patient’s name before you call. If it’s a cops story, get it from them, with spelling and as much other information as possible (age, home town, etc.). That way you can check against public records  and see if the spelling seems right – and if it’s not use other info. to trackdown the name.

– Even if you know the name, you may get nothing. The law lets patients “opt out” of information. If a patient opts out, the health provider probably won’t tell you anything – including whether the person is even a patient there or not.

– The flip side is that patients can agree to release as much information as they want. They also can sign forms giving doctors, nurses, hospitals, etc. permission to release information about them and their care. Hospital PR people are usually willing to ask patients to talk to the media, and sign a form, but that takes time. If the PR people don’t want to ask, remind them that it is their job to ask, and they can’t refuse for the patient – only the patient can agree to give or withhold information.

– The obvious problem is that patients can’t always discuss federal health privacy law, especially those we encounter on cops shifts. They may be unconscious, in shock or otherwise not discussing privacy laws. Generally, if the patient hasn’t said anything, hospitals are interpreting it to mean they haven’t “opted out,” and will give condition information if you have their name. But they may decide to give nothing.

In this situation, you have a few arguments. A doctor can release information if it’s in the best interests of the patient. You can try getting to the doctor and pointing out that we’re going to be writing about the person anyway, and it is certainly in their best interest to have friends, family, coworkers and neighbors that read the story know that they are not dead, but just in serious but stable condition (or whatever).

Also, a person can choose a representative to speak for them for HIPAA purposes. Sometimes, representatives make care decisions for patients, too – such as parents for children, spouses of people in comas, etc. Those people also can make HIPAA decisions for you.

– If you get too much run-around from PR people, or think they are misinterpreting the law, you can ask to speak to the privacy officer. Every hospital has one, and they are the higher HIPAA authority.

– Finally, we encourage reporters to note for readers why they are not getting information they expect to get. For instance, “hospital officials refused to release information about the victim, citing federal privacy laws.”

A new federal law called Health Insurance Portability and Accountability Act (HIPAA) is making life hard for anyone, except close family members who must call hospitals, doctors, nurses, paramedics or other health workers to get information about patients. The law limits the information that any health worker who electronically transmits information (basically all health workers) can give about patients.

The law is very long and complicated. Here is a summary:

• You must know the patient’s name to get any information. Hospitals, etc., will generally give you a patient’s one-word condition (good, fair, serious, critical, dead) if you tell them the person’s name. If they tell you the condition they also should tell you where they are in the hospital (the OR, ICU, recovery, etc.) but usually won’t unless you ask them.
• If you have the name wrong, or no name, you’ll get nothing. Health folks are very scared because HIPAA violations carry big penalties (fines up to $50,000 and criminal charges). So they don’t say, “Oh, it’s Melanie Johns, not Melanie Johnson.” They also no longer give information based on descriptions, such as “the 60-year-old man who had his leg ripped off by pit bulls in Downtown Portland.” You need the name.
• So try to get and double-check the patient’s name before calling the hospital. Cops, state and county officials, witnesses, etc. may know the name. If it’s a wreck, and you get the license plate, you can check the owner’s name against DMV records. This sounds obvious, but also get a spelling and as much other identifying information as possible (age, home town, etc.). That lets you check the name against public records and see if it’s correct and gives you other information to track down a wrong name. My last cops shift, for instance, a Portland Police PIO told me a driver’s name was Lindsey K. Delashmotl, 18, of Southwest Portland. No such name in DMV. So I searched for all Lindsey D-s in Portland, and found an 18-year-old named Lindsey DeLashmutt, the correct spelling.
• Even with a name, you may get nothing. The law lets patients “opt out,” in which case the health provider is supposed to say nothing, including whether the person is even there or not.
• The flip side is that patients can release as much information as they want. They also can sign forms giving doctors, nurses, PIOs, etc., permission to discuss them and their care. At your request, hospital PR people usually will ask patients to talk to the media and sign a release, though that takes time. If the PR people won’t ask, point out that it is their job to ask and that they can’t refuse for the patient — only the patient can agree to give or withhold information.
• Obviously patients can’t always opt in or out. They may be unconscious, in shock or otherwise not up for discussing federal privacy law. If a patient has said nothing, hospitals generally interpret it to mean they have not “opted out,” and will give condition info. if you have their name. But they may still claim they can give nothing.  This situation offers two hopes. A doctor can release information if she or he decides it is in their patient’s best interest. You can try getting to the doctor and arguing that, since we’re going to be writing about the person anyway, it is certainly in their best interest to have their friends, family, coworkers and neighbors know they are not dead but just in serious but stable condition (or whatever).
• Also, a patient can choose a representative to speak for them for HIPAA purposes. Representatives sometimes make care decisions for patients, too – such as parents for children, spouses of people in comas, etc. If a patient isn’t in a condition to talk, those people can make HIPAA decisions for them.
• Hospitals generally won’t tell you if a patient has been treated and released. All they’ll say now is that a person is “no longer in this facility,” or something similar, leaving you to connect the dots. Also, they don’t keep information on where they’ve been released to (home, a nursing home, morgue, etc.).
• If you get the run-around from hospital PR people, or think they are misinterpreting the law, you can ask to speak to the privacy officer. Every hospital has one. They are the higher HIPAA authority.

The M edia Law Resource Center www.medialaw.org , has created a guide to the Health Insurance Portability and Accountability Act (HIPAA) that is making it less difficult for information seekers to get hospital information. Click on HIPAA Guide.

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Related posts:

1. Hospital information (HIPAA – an article from The Oregonian)
2. Media Law Research Center’s survey on newsroom subpoenas
3. HIPAA Tips & FAQ (thanks to Therese Bottomly)

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