Chi Town Daily News, an online-only Chicago news source, is telling readers how much each story cost them to produce. Donations help support the site, and within the statement at the bottom of each story that tells readers how much the story cost, there’s a link to donate.
Mark Luckie at 10,000 Words has a post about Adobe Flash and journalism and is saying something that isn’t said enough — journalists don’t need to know how to use it. As he says, Flash was all the rage when it came out. But, as we’ve shown in our Web workshops, there are many free online tools that do the exact same thing with far less effort.
The Texas Public Information Act makes it very clear that the salaries of public employees are “public information and not excepted from disclosure” [Texas Local Gov’t Code §552.022(a)] under the act. Specifically, in the section defining categories of information that are public, included are “the name, sex, ethnicity, salary, title, and dates of employment of each employee and officer of a government body”. [Texas Local Gov’t Code §552.022(a)(2)]
A city employee is, of course, an employee of “a municipal governing body in the state,” and is thus subject to the Public Information Act [Texas Local Gov’t Code §552.003(A)(iii)]
The only exception to the categories of public information in §552.022(a) is for records that are “expressly confidential under other law.” No privacy laws specifically make public employee salaries confidential. In fact, the confidentiality exception in 552.022(a) is very narrow; in one hotly-debated example, the Texas Supreme Court construed the confidentiality exception to include reports compiled for ongoing litigation, which are privileged under the Texas Rules of Civil Procedure [see In re City of Georgetown, 53 S.W.3d 328 (2001)].
In that case, current Attorney General Greg Abbott was serving as one of the court’s justices, and he made a telling statement in his dissenting opinion. He disagreed that 552.022(a) should be extended even this far, instead suggesting that the items in this section (which includes public employee salaries) were intended “to create a set of ‘super public’ categories of information to which” other exceptions should not apply. [53 S.W.3d at 341]
The reasoning behind this is obvious. As taxpayers, we fund our government’s activities. It is our business how much our government spends our tax dollars, including how it pays its employees. Nearly every state makes public employee salaries open to inspection, either in the state’s freedom of information laws or through court decisions regarding the law (as was the case in California in 2007, when the state’s supreme court interpreted the Public Records Act to include employee salaries; see International Federation of Professional and Technical Engineers, Local 21, AFL-CIO v. Superior Court of Alameda County).
On occasion, government employees bristle at this level of openness, particularly when lists of employees’ names and salaries are posted on the Web. In Maine, for example, a bill was introduced in the legislature in April that would make employee salaries confidential, largely in response to a database posted by MaineOpenGov.org. That bill never reached a vote; it was killed unanimously by the legislature’s judiciary committee shortly after the bill was introduced.
If a government body in Texas is denying access to public employee salaries, it must provide a specific confidentiality provision recognized under Texas law that would serve as an exception to the general rule that this information is open under the Texas Public Information Act. If denied on confidentiality grounds, requesters should be sure to ask for the specific code, chapter and section of state law that the government body is relying on as an exception to 552.022(a); a bare assertion of “personal privacy” should not deter this request for information that is specifically deemed open to inspection under Texas law.
Successful (and experienced) newspaper ad salespeople know and will tell you that spec ads can be very powerful, and once in place, they help the selling process proceed to a close, resulting in an ad in your newspaper.
Don’t think that spec ads are for new advertisers only. Rethink your spec ad selling strategy and consider incorporating their use with your best customers and with some new, strategic ad alliances you want to pursue (. . . clean your car inside and out — a joint car wash retailer/oil change retailer promotion . . . weather outside is frightful, the fire inside is delightful — a joint video rental retailer/pizza delivery promotion).
Why create and use spec ads, both for print and online? Very simply, spec ads allow you and your newspaper to strategize, show, save and succeed with your new and existing advertisers.
Strategize: Spec ads help to open the door and begin the idea and need exchange, not only with new advertisers, but also with your existing customers. Presenting a spec ad helps you help your advertiser visualize a new sales or marketing strategy, and encourages those advertisers to take that first step in a business partnership with you and your newspaper.
Show: Spec ads give you and your newspaper the opportunity to teach someone how to buy advertising, through a well thought out ad and ad campaign which showcases you and your newspaper’s marketing expertise and strength as a creative selling medium, both in print and online.
Save: Spec ads will save your advertiser time and money. Time is saved which was previously spent wondering (discussing?) “what to run” … “when to run it” … “how much to price”. . . “what to say”. . . “how to say it”. . . “what will it look like”! You and your newspaper will also save time and money because of fewer rough ad drafts, proofs, production time, deadline impacts, and error adjustments.
Success: Spec ads will help foster the outcome you and your advertiser envision. For your advertiser, that may be more sales, more revenue, more profit, or overall market share growth. For you and your newspaper, it may also mean more income for you, more revenue for your paper, more profit, and enlarging customer base or overall market share
growth.
Idea generation for spec ads is easily accomplished if you remember where and how to look for ideas. Where? First and foremost, at your potential or existing advertiser’s place of business. Does an existing business card give you an idea of how to develop an ad that matches the image this retailer wishes to convey? Does the same business card provide easily accessible and usable art work, logo and/or address/phone information for spec ad development? Are existing ads or past ads (from other media — chamber book, yellow pages, direct mail, other newspapers) available to incorporate into your spec ads? Are there other printed materials available — restaurant menus, catalogs, flyers?
On May 13, 2009, Texas became the thirty-seventh state to enact a reporter’s privilege. The law was signed by Governor Rick Perry that day and became effectively immediately. Texans have tried for decades to get a law like this on the books. In recent history, legislation was proposed during the last three sessions. In 2005, the major accomplishment was getting the broadcast and the print media to speak with one voice on the issue and to both support the measure. In 2007, the bill would have passed but for a last minute point of order killing the bill on a technicality. The 2009 session, however, proved that the third time was indeed a charm.
The Legislative History
The bill that was proposed the last three sessions is a qualified privilege patterned in large part after the Department of Justice Guidelines. In 2007, there were two chief opponents to the legislation — law enforcement and the business community. During the last session, we were able to negotiate with the business community to alleviate their concerns about disclosure of trade secrets and other information they deemed to be “private” or “proprietary” in nature. Ultimately the business community groups signed a letter to the Legislature indicating they no longer opposed the bill. Unfortunately, despite repeated efforts, there were no fruitful negotiations with the prosecutors last session. Indeed, it was the former District Attorney from Houston (who was since been indicted) who actually supplied the point of order that killed the bill in 2007.
During the interim, the newspapers and broadcasters continued to work hard to better educate people through grass roots efforts and the establishment of a very informative website — www.freeflowact.com. The website gives examples of demonstrated need for the law, shows what laws have been adopted in other states and when their laws were enacted, provides editorials on the issue, and has a section on subpoena abuse and prosecutorial misconduct.
When the 2009 legislative session began, we were fortunate to continue to have our long-time sponsors in the Senate — Senator Rodney Ellis (D-Houston) and Senator Robert Duncan (R-Lubbock) as stead-fast supporters of the legislation. Since we had lost our House sponsor in the primary, we had to find a new lawmaker with a passion for the cause. We were lucky to find San Antonio Representative Trey Martinez-Fischer whose can-do attitude made a world of difference in our efforts. Because of the new Speaker in the House, though, the make up of all of the committees and committee chairmanships changed — including the committee that would hear our bill. HB 670 (the Texas Free Flow of Information Act) was heard by the House Judiciary and Civil Jurisprudence committee this time around, and there were only three returning members of the committee who had heard the issue in previous sessions. We were concerned that the learning curve would be detrimental to our cause. What we did not anticipate was the strength of the new chairman of the committee — Chairman Todd Hunter (R-Corpus Christi).
From the beginning, Chairman Hunter worked to have the bill heard early, and he put tremendous pressure on the prosecutorial community to sit down and have a meaningful discussion and negotiate with the media on the bill. He made it clear that the train was leaving the station, and they could either get on board or not. As a result of Chairman Hunter’s tenacity and dedication, we had four different negotiation sessions with the prosecutors — the final one lasting more than thirteen hours. In the end, we had a bill that everyone could agree upon, and the bill sailed through the House and the Senate with unanimous votes on third reading.
What the Texas Free Flow of Information Act Says
The Texas Free Flow of Information Act (also known as a reporter’s privilege) is a qualified privilege with separate civil and criminal sections. The civil section applies to confidential and nonconfidential sources, journalist’s work product and published and unpublished materials. In order to require a reporter to testify or produce materials, the party who issued the subpoena must meet the following three part test: (1) they have exhausted all reasonable efforts to get the information elsewhere, (2) the information is relevant and material to the proper administration of justice, and (3) the information sought is essential to the maintenance of the claim or defense of the person asking for it.
The criminal section, on the other hand, is separated into three parts with different tests applying to different matters. The first part deals with confidential sources, the next with unpublished work product and nonconfidential sources, and the third with published information. When a confidential source is involved, there is an absolute privilege except to the extent that (1) the journalist was an eye witness to a felony, (2) the journalist received a confession of the commission of a felony, or (3) probable cause exists that the source committed a felony. In those three scenarios, the only hurdle one must overcome before calling the journalist to testify is establishing by clear and specific evidence that they have exhausted all reasonable efforts to get the information elsewhere. Further, a journalist can be compelled to give up his confidential source if disclosure is reasonably necessary to stop or prevent reasonably certain death or substantial bodily harm. With regard to unpublished materials (i.e. work product) in the criminal setting, the same three part test as the civil arena applies. Published materials are not covered by the statute so one would look to common law with regard to those materials.
Unique Twists in the Legislation
We also added a few unique twists to the bill which should help Texas newsrooms. First, with regard to criminal subpoenas, the elected district attorney is required to sign all subpoenas issued to journalists. Second, again with regard to criminal subpoenas, the subpoenaing party is required to pay the journalist a reasonable fee for the journalist’s time and costs incurred in responding to the subpoena (the calculation of cost is based on the cost provision in the Texas Public Information Act). Last, there is now a provision in the law making broadcasts self-authenticating, like newspaper articles, so that a reporter will not have to be put on the stand solely for the purpose of authenticating a broadcast tape. With more and more newspapers putting video footage on their websites, this addition will help newspapers as well as broadcasters throughout Texas.
How the Texas Free Flow of Information Act Works
Here are some examples of how to handle future subpoenas:
Question: I am an Editor and just received a civil subpoena for all of my reporters’ notes in a case where the party is just on a “fishing expedition,” what do I do? Refer the person who issued the subpoena to the reporter’s privilege and explain that you do not have to produce anything unless it is essential to the maintenance of their claim or defense and they have tried to get the information elsewhere been unsuccessful in doing so.
Question: I am a reporter and just received a civil subpoena for confidential source information, do I have to give up my source? Not likely. This is a subpoena you can fight with the new privilege. In order to get confidential source information, the party who has subpoenaed the information must show that the identity of the source is essential to the maintenance of their claim or defense and that they cannot get this information elsewhere. The judge will decide this after a hearing, and the court will have to refer to the clear and specific evidence that it relied on to make its ruling if the reporter is forced to testify.
Question: I am a reporter and just received a criminal subpoena in a misdemeanor case to get confidential source information, what do I do? You have an absolute privilege and do not have to testify under the new statute.
Question: I am an Editor and just received a criminal subpoena in a felony case where the criminal defendant confessed to the journalist that he committed the crime, will I have to produce the videotape of the confession? More than likely. Unless the court determines there is a reasonable alternative source of the information, you will have to produce the videotape. Will the journalist also have to testify? If you produce the videotape of the journalist’s entire conversation with the criminal defendant, the journalist should not have to also testify about the conversation because the videotape should be an adequate alternative source for the information. Some courts may interpret this differently; however, and, as with any new legislation, the interpretation will take place on a case by case basis.
Question: I am a journalist and I just witness a felony being committed — and I am the only person who saw what was happening, will I have to testify if I get subpoenaed? Yes.
Question: I am a reporter and have a confidential source who has told me he is going to kill someone this afternoon, do I have to disclose this information? Yes. A reporter has to disclose their confidential source if it is reasonably necessary to stop or prevent reasonably certain death or substantial bodily harm.
Question: I am a reporter and just received a subpoena to produce video footage we put on our website, what do I have to do? If it is a civil subpoena, tell them to download it from the website and it is self authenticating. If it is a criminal subpoena, make a copy and charge them for the cost of production. In either instance, you do not need to provide a business records affidavit with the video because the video is self authenticating.
Question: My newspaper and two of the broadcast stations in the market all received subpoenas for photographs we took and video footage we each shot at the same crime scene, what will happen if I try to fight it on the grounds of there being an alternative source of information? It depends on how the court interprets “alternative sources.” If the court believes that one news outlet’s photographs or video footage is sufficient, then the others should not have to produce their materials from the same incident. If, however, the court views each news outlet’s information as unique, it might require all of the station’s to produce their footage.
Question: I am an Editor and just received a criminal subpoena that was not signed by the elected District Attorney? You do not have to comply with it. It does not meet the requirements of the Act.
Question: I am a reporter and just received a Rule 202 Petition asking for my pre-suit deposition, can I invoke the reporter’s privilege? Yes, the reporter’s privilege specifically applies to Rule 202 proceedings.
Question: Does the reporter’s privilege apply in administrative or executive proceedings as well? Yes.
Question: I am a blogger who does not work for a television station and really just blogs in my spare time, but I received a subpoena for my notes about a blog I recently posted on misuse of funds by government officials, does the reporter’s privilege cover me? Not likely. The reporter’s privilege applies to journalists as defined in the Act and basically covers those who earn a substantial portion of their living working for a bona fide news organization.
How Court Challenges Work
Under the new law, if you are fighting a subpoena, you can file a Motion to Quash, and the Court must hold a hearing on the matter before the reporter is required to testify or work product is required to be produced. In filing the Motion, the journalist will likely need to sign an affidavit supporting the motion to ensure that the Court knows the reporter falls within the definition of journalist contained in the Act. Also, the burden is on the party who is subpoenaing the information to prove by a heightened standard of clear and specific evidence that they really need the information for the heart of their case and that they cannot get the information elsewhere. Other factors the court can consider in balancing the interests of the reporter and the party who has subpoenaed the information are: (1) whether the subpoena is overbroad, unreasonable or oppressive, (2) whether it is being used to obtain peripheral, nonessential or speculative information, (3) the reasonableness and timeliness of the notice being given in the subpoena, and (4) whether the interest of the party subpoenaing the information outweighs the public interest in gathering and disseminating the news.
Last Words
We believe that the right balance has been struck in Texas’ reporter’s privilege – one in which the goal of increasing the free flow of information and preserving a free and active press has been balanced with protecting the right of the public to effective law enforcement and the fair administration of justice. It has been a monumental undertaking to get this law passed in Texas, and there are many people who have helped make this quest a reality. We thank all of those who have assisted in the effort and each of the lawmakers who voted in favor of passing a law that will benefit all Texas citizens – the Texas Free Flow of Information Act.
You can download this information as a handout in .pdf format here if you’d like to print this for your newsroom.
View a signed copy of the act here.
Steve Buttry from the from Gazette Communications in Iowa posted a tip sheet for journalists on how to use Twitter. He covers everything from breaking news to linking to figuring out who to follow on the service. If you don’t have a Twitter account, read Buttry’s post then check it out.
Many of you are looking for different approaches to the online product. Check out this one from Columbia, Mo., a combination of a blog-like news stream with in-depth overview pages. Columbia Tomorrow lets members of the community start their own discussions on news posts. And check out the site’s video, which explains more about this project’s approach.
Here’s a site you need to check out, and print out for your ad staff. According to recent research, consumers trust advertising on local newspaper, magazine and television Websites, and are very likely to take action after viewing ads on these sites. It’s a piece any Texas ad rep needs in his/her pitch book when selling Internet ads.
Categories
To charge or not to charge
So you’re wrestling with the issue of charging for your Internet product. Do you want to do it? If so, how much? And if you charge, do you charge everyone, or only those who don’t subscribe to your print edition? If that’s the discussion around your newsroom, you’re in pretty good company; The New York Times is talking about the same thing. This article will show you what the Times has come up with.
A South Carolina newspaper design consultant is offering a grant to offset the cost of his services for small, community newspapers, such as those served by the Center.
The Francis A. Henninger Grant is available now and can be used to pay for design and redesign services with Henninger Consulting.
The amount of the grant is determined by serveral criteria including ownership, staff size, publication frequency and circulatioin, said Ed Henninger, who runs Henninger Consulting.
Henninger told me earlier this week that like those of us at the Center, he has found commmunity journalists eager to learn, and always appreciative, which makes makes the grant program worth it for him. And some of you may know Henninger from conferences; he just spoke at a West Texas Press Association event in San Angelo.
For those who quality, Henninger said, he will charge an hourly rate for his services, which will be offset by the grant.
“The beauty of the program is that after I do a little bit of work with them, and once they’ve got somebody who can start replicating what I’m doing, they can just say ‘Stop’,” he said.
That means that some small newspapers have been able to use his redesign services for less than $1,000, he said. Henninger said the grant may also be used to offset smaller projects, such as a nameplate redesign.
His hourly rate varies, he said, depending on the amount of work that will be involved.
Anyone interested can contact Ed at [email protected] or (803-325-5252). For more information, visit Hennigner’s website at www.henningerconsulting.com.
Of course, you can always refer design questions to us at the center, either through our Ask an Expert feature or by using the Contact form.