Author: Chip Stewart

Question: My school district is claiming that it’s restricting public comment to agenda items due to the recent law (they were previously allowing any comments). This seems like a gross misrepresentation of a change designed to guarantee a right rather than restrict it. Is my understanding correct?

Answer: Looks like your school district is reading the update to the Open Meetings Act in a very literal way that undermines the purpose of the revision in the 2019 legislative session.

We’re talking about HB 2840, which requires government bodies to allow people to comment on agenda items. Yes, the purpose of that was to allow more comments, not fewer, but another section of the revision says the government “may adopt reasonable rules regarding the public’s right to address the body … including rules that limit the total amount of time that a member of the public may address the body on a given item.” The intent of that was to keep the public from wasting time or basically shutting down a session by talking endlessly – not to eliminate public comment time outside of agenda items altogether.

Here’s the bill text: https://capitol.texas.gov/tlodocs/86R/billtext/html/HB02840S.htm

I’d read that to mean that “people may not speak on anything but agenda items” (as your school district seems to be doing) is not a “reasonable rule” under the law. That would at least be up for interpretation by the AG, and may be worth challenging the ISD on. The Texas Municipal League reads the bill as permitting but not requiring government bodies to allow open comment, as long as the body isn’t restricting public criticism of the body (another passage in the OMA revision). Read this from TML counsel Zindia Thomas, who I respect on open records/meetings matters as acting in good faith on interpreting these things, rather than being reflexively defensive of her organization’s members: https://www.tml.org/DocumentCenter/View/1237/HB-2840-Public-Comment-on-Agenda-Items

In short, I’d suggest asking your school district to return to allowing an open comment session on non-agenda items, arguing that dismissing public comment altogether is not a “reasonable rule” under the HB 2840 revisions. It may at least be worth seeing if the AG would issue a letter opinion on it. It may also be a call to the AG hotline on open meetings, 512-478-6736.

Question: Are courts (criminal/civil/etc) bound by law to charge newspapers for printed copies of court documents? Our district court clerk says everyone–even the media–must pay a $1 per page for any  material printed for us. Is there a way around this?

Answer: Copying costs are set by statute, and they are more expensive for court records than for records of other government agencies.

Section 106.0611 of the Texas Government Code outlines the fees for copies of state district courts. For non-certified copies, the courts may collect “no more than $1” for each “page or part of a page.” (Tex. Gov’t Code Sec. 106.0611(15)).

http://www.statutes.legis.state.tx.us/SOTWDocs/GV/htm/GV.101.htm

You can ask the court to waive the fee, but you can also ask to look at the court record and take photos of the page with your phone. That’s free.

The court records fee structure is different than “government agencies” that are subject to the Public Information Act. Under that fee structure, set out in Rule 70.3 of the Administrative Code, standard copy fees are set at 10 cents per page. 

http://texreg.sos.state.tx.us/public/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg=1&p_tac=&ti=1&pt=3&ch=70&rl=3

Question: I asked a city councilman what he and the rest of the board discussed in closed-door session (executive session). He said he could not by law comment, that the law prevented him from disclosing what was said. I told him that he could comment and that there was no law preventing him from telling me what was discussed as per the Texas Attorney General Opinion on the matter. Am I wrong? Has something changed?

Answer:  No. You’re not wrong. The city councilman was misinformed. The records of what happened may be closed, but individuals in the meeting are free to disclose what happened. There are some privacy issues to consider if the topic of the meeting was a personnel issue, but to ban a participant from talking about the meeting would violate the First Amendment.

Q:  We are doing a feature this week on the history of Rudolph the Red Nosed Reindeer. (actually pretty interesting… another marketing ploy by corporate giant) Anyway, I am thought I might scan in the cover of a little Golden Book about the flying mammal and use it as my artwork for the story. The book is copyright 1958 and has been out of print for years. Am I trudging on infringement issues?

A:  First, it’s good that you stop to ask.  Often, news staffs scan and use without even giving a second thought to copyright issues, simply presuming that if it can be found, then it is fair use.  This is not always the case, of course, and that’s when the Copyright Scrooges can come calling.

Chances are that the image is not in the public domain.  Even though it was published in 1958, if long as Little Golden Books renewed the copyright after its first term would’ve expired in 1986, the copyright would extend to 95 years after the original publication date.  That’s the rule for works published between 1920 and 1963; today, copyright extends to 70 years after the death of the author. (see a full list of copyright duration here:  http://copyright.cornell.edu/resources/publicdomain.cfm)

In this instance, however, I think printing the Rudolph cover would qualify as fair use.  Fair use is the chief exception under U.S. copyright law, which calls for penalties including $750 minimum and up to $150,000 in damages per infringing use.  Worse than a lump of coal, indeed.

To qualify for fair use consideration, the use must fall into one of the following categories:  criticism, comment, news reporting, teaching, scholarship and research.  Because you would be using the Rudolph image for news reporting purposes, you are at least eligible for the fair use exception.  However, this alone does not mean the use is fair.

Courts apply a four-part test to gauge whether the use is fair.  No one part of the test is supposed to be given any greater weight than the other; rather, courts apply the test on a case-by-case basis and provide an overall ruling based on the facts and circumstances.  The test includes the following: (1) purpose of the secondary use, (2) nature of the copyrighted work, (3) amount and substantiality of the portion taken and the secondary use, and (4) effect on market value of the original.

In the case of the Rudolph cover, the test would apply as follows:

1. Purpose of the secondary use:  News uses are for profit, which favors the copyright holder.  However, the fact that the original is out of print helps the secondary user because you are making it available to a wider audience.
2. Nature of the copyright work:  Rudolph is without a doubt fictional and fanciful, which is more creative than historical or factual works.  This favors the original copyright holder.
3. Amount and substantiality:  This kind of depends on how the copyright was registered.  Was it done as a whole, or was the cover image registered separately?  Most likely, it was registered as a whole, meaning you’re using just one image (albeit the most important one) from dozens in the book.  It’s hard to use images fairly without “transforming” them somehow – using them in a photo illustration, for example – because it usually requires taking the whole image.  Using the photo in a de minimis way – as a small image accompanying a longer story, with other images from other sources as well – would help the news reporting use even more.  This factor also slightly favors the copyright holder.
4. Effect on market value:  Essentially zero, which favors the secondary use.  It’s not plausible to believe that people would substitute the newsprint image for the original, thus undercutting sales of the book.

Though courts are not supposed to favor any one factor, they often do focus on amount and substantiality and effect on the market.  Here, with no negative market effects, and with only one image from the book taken, these factors seem to favor the secondary use.  The fact that the book is out of print helps as well.

Thus, I think this use would qualify as fair.  To be safe, however, I encourage attributing to the original work – under the image, I suggest listing the name of the artist, the title of the book, the publisher and the date.  Such acts of good faith – you’re giving credit to the original artist and publisher to the audience, rather than hiding them – tend to be appreciated by the courts. Think of it as a way of staying on the “nice” list.

For more information on copyright, go to www.copyright.gov, which is full of resources and FAQs for the public.

Question: Under the Open Meetings Act, what can I do if a government body goes into executive session under a vague “personnel matters” exception every meeting, even if the body is doing other things such as receiving reports or discussing other matters about high-level government employees during this closed session?

Answer: First, to be clear, a government body can go into executive session to discuss personnel matters (551.074). To comply with the notice requirements under 551.001, the government body must (a) meet in open session and announce that a closed session will be held and (b) state the exception under which the body is going into executive session. So, technically, a city council that meets in open session and states that it will be going into closed session to discuss personnel matters – without any further detail – is complying with the notice part of the Open Meetings Act.

While some government bodies voluntarily disclose which personnel are being discussed or otherwise provide more detail, there is nothing in the statute or court/attorney general rulings demanding that government bodies provide more clarity, except in cases involving a “special public interest.” Texas courts have only required more than “employment of personnel” for hiring decisions when such a “special public interest” is involved (for example, courts required more for school boards hiring principles or superintendents; see Cox Enterprises, Inc. v. Board of Trustees of the Austin Independent School District, Texas Supreme Court, 1986).

Thus, hiring and firing of high-level personnel – perhaps including city managers and tax assessors/collectors – would seem to require an additional level of notice beyond merely stating “personnel matters.”

However, the “personnel matters” exception does not cover anything dealing with government personnel. Under 551.074(a)(1), the only personnel discussions that can be closed are sessions “to deliberate the appointment, employment, evaluation, reassignment, duties, discipline, or dismissal” of a public employee. So, if the body is receiving a report about the aforementioned matters – particularly, say, an audit or investigation about a public employee – that portion of the meeting can be closed.

That said, the personnel matters exception can be (and surely often is) abused. If a government body is trying to dodge public scrutiny by wrongfully hiding behind an exception, it is in violation of the Open Meetings Act. If you hear that matters have been discussed besides those claimed as the reason for meeting in closed session, then you can challenge the validity of closing the meeting in court.

Proceedings of closed sessions must be recorded, either through video/audio recording or through a certified agenda that includes details about any business conducted during the closed session (551.103(a)] This includes at least a brief summary of the subject matter discussed and any actions taken.

Unfortunately, there is no way for you to gain access to the recording or the certified agenda without court intervention – a court can conduct in camera review of the recording/agenda and can admit it into evidence if the case proceeds. I would normally suggest that you seek a friendly member of the board to leak you a copy, but doing so is a misdemeanor.

To be clear, the closed session on personnel matters is only for deliberation, not for final votes and decisions, which must be made on the record. Any final decisions made regarding the public employee (or final decision on any other issue, for that matter) must be made in open session.

Full question: A 501(c)(3) foundation publishes a travel guide that my newspaper designs and prints. The foundation has prevented some businesses from advertising because of bad business histories. Now a disgruntled former advertiser is threatening a lawsuit because he says he is not being treated equally by being prevented from advertising. Does a private business – non-profit or otherwise – have the right to refuse business to anyone?

A private business is allowed to make its own editorial decisions about what to publish. The First Amendment right to freedom of the press prevents the state from interfering with private editorial decision-making, as was made clear in the Miami Herald Publishing Co. v. Tornillo case, 418 U.S. 241 (1974).

This includes the right to turn away advertisements, as the Supreme Court noted in a decision the previous year when it refused to extend the FCC’s “Fairness Doctrine” to broadcast advertising. (CBS v. Democratic National Committee, 412 U.S. 94, 1973).

Consider recent instances of networks broadcasting the Super Bowl — they regularly turn away ads from political groups such as MoveOn.org or anything else deemed too racy for the public, such as PETA’s regular attempts to grab attention.

Merely by virtue of being a 501(c)(3), not-for-profit organizations do not surrender their First Amendment rights. Just last year, the Supreme Court in the Citizens United v. FEC case upheld free speech rights for 501(c)(4) tax-exempt organizations, striking down campaign finance regulations that limited the ability of the organization to spend money in political campaigns, a kind of speech.

In short, with very few exceptions, publishers have a right under the First Amendment to make editorial decisions without the state, or the courts, interfering with them. This includes the right to choose which advertisements to accept and which to reject. While the contents of advertising can be regulated — consider the Fair Housing Act requirements that advertising not include discriminatory content — it remains in the publisher’s discretion whether to publish an advertisement in the first place.