November 2003

RCFP WHITE PAPER

The Lost Stories

How a steady stream of laws, regulations and judicial
decisions have eroded reporting on important issues
By Jennifer LaFleur

 WHITE PAPER: THE LOST STORIES

Are we losing our best stories?
Two years before Sept. 11, 2001, then-Cleveland Plain Dealer
reporter Beth Marchak revealed serious problems with how
airlines handled hazardous materials. Many airlines, she wrote,
continued to commit violations and simply paid the fines rather
than fix the problems.
“The FAA is ignoring years of enforcement records that
already identify repeat violators, can’t tell if hazardous materials-related problems are solved, is reluctant to pursue criminal
cases, and has trouble tracking fines, officials at the agency say,”
Marchak wrote.
But shortly after Sept. 11, when reporters became more
interested in analyzing the data from airports in their coverage
areas, the FAA closed the information from public release, citing
security reasons. The agency now releases some of the information, but withholds any records relating to hazardous materials
or security breaches.
While many journalists were aware of the damage Sept. 11
did to the availability of open records in the United States,
openness was already being hit from another angle. Privacy
considerations began making it more difficult for reporters and
the public to get records relating to individuals.
The past two decades of journalism in the United
States generated a collection of important stories
that made significant changes to benefit the public
interest. But reporting many of those stories would
be difficult or impossible today because of greater
restrictions on access to institutions, events and
information. Whether by acts of Congress, new
rules by federal agencies, decisions by courts, or
even overreactions by administrators and bureaucrats, restrictions on access have led to a host of “lost
stories” that are no longer informing the public
about how its government works.
This guide reviews some of those lost stories,
discusses future risks that journalists should watch
for, and advises journalists how to compensate for the shortfalls
in access.
Driver records
Congress passed the Driver’s Privacy Protection Act in 1994
to protect personal information in driver records. The DPPA
requires states releasing driver information to ensure that the
release is authorized by the driver and that the information will
be used only for specifically authorized purposes, such as law
enforcement and insurance coverage. Rep. Barbara Boxer (DCalif.) hoped to prevent stalking when she introduced the
measure, but it has stopped reporting in many states that relied
on driver records.
“There was stupendous public good in that reporting,” said
Charles Davis, director of the Freedom of Information Center
at the University of Missouri.
In 1986 and 1987, for example, Elliot Jaspin, then a reporter
for the Providence (R.I.) Journal-Bulletin, looked into the records
of school bus drivers. The story, one of the pioneering uses of
databases for investigative reporting, relied on an analysis of

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computer records to show the high rate of motor vehicle
violations and the high rate of felony convictions among the
drivers. The stories reported on the state’s haphazard system for
certifying drivers.
The story inspired more reporters around the country to use
databases to investigate government institutions and processes.
Such stories led to changes in law and public awareness of
serious problems and corruption.
In November 1996, then-Columbus Dispatch reporter Michael Berens analyzed Ohio drivers license data to show that under
Ohio’s system of traffic enforcement, there was a record number
of drivers whose licenses were suspended for not filing a report
with the Bureau of Motor Vehicles. The DPPA provisions had
not taken affect in Ohio by that time.
The series detailed how an obscure traffic accident reporting
law resulted in the suspensions of 110,000 drivers licenses in just
a five-year period; many were the hospitalized accident victims.
The law required motorists to file a one-page report with the
state — an extra report beyond the traffic accident report
commonly filled out by police at the scene. Failure to file this
obscure report resulted in automatic
license suspension. The requirement,
a 1955 law that was enforced beginning in 1992, was abolished in March
1997 (H.B. 210) as a direct result of
the series, according to Berens.
The computerized findings of Ohio
driver records also showed uneven
enforcement of a law that stripped
high school dropouts of their licenses
based on attendance). Rich school districts seldom, if ever, applied the law.
Poorer districts commonly did, using
the law to strip licenses from young
mothers who left school to give birth.
As a result of Berens’ series, the Ohio Department of Education
initiated a review of the process, recommended that pregnant
students not be penalized for school absences, and strengthened
policies to provide a fair and equitable enforcement of the law.
The series also sparked review by Franklin County judges on
a controversial formula that awarded defendants $30 for every
day in jail to be paid against their fines. Failure to pay a $90 fine
was three days in jail, for instance. Many judges did not ask if
defendants could afford to pay the fine and simply sent them to
jail for failure to pay.
The practice was abolished, and all defendants were asked
about their financial status at the time of their sentencing.
Destitute defendants were not jailed strictly for failure to pay.
Medical privacy
More than nine years after the Driver’s Privacy Protection
Act was passed, privacy worries continue to close off information to the public and the press.
The Health Insurance Portability and Accountability Act, a
privacy measure, recently delivered a blow to reporters who

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routinely contacted hospitals to get information about the status
of patients. The act ultimately required the Department of
Health and Human Services to write privacy rules.
The HIPAA rules were developed during the Clinton administration and went into effect in April 2001. The law gave
providers until April 14, 2003, to fully comply with the regulations, so journalists are just now starting to see the impact of the
law.
The rules were designed to protect the medical privacy of
patients and to give them more control over their health information and how it is used. All health care providers and entities
that work with patient billing records must comply with the law
or face severe civil or even criminal penalties.
Journalists who routinely called hospitals to get the status of
a patient may be unable to get such information in the future.
Under HIPAA, hospitals may release only the name and a oneword status of the patient — but only if the patient has agreed
to have his or her name released and
then only if the reporter has the individual’s full name.
“A troubled community is made
more so when it cannot find or identify its victims or activate the support
systems that neighbors, clergy and
others might provide both the victims
and their families,” The Reporters
Committee for Freedom of the Press
wrote in comments to the U.S. Department of Health and Human Services before the final regulation was
passed. “It is unthinkable that in such
a situation, a hospital communicator
would be subject to a $25,000 fine for
providing general information about a victim.”
Local agencies such as county health departments, coroners
offices and emergency response agencies are not covered by
HIPAA, yet many of those agencies are using it as a reason to
deny journalists information.
When a reporter from The Roanoke (Va.) Times went to cover
a house fire that injured two people in Spring 2003, the fire and
emergency response department refused to give him the names
of the victims or any basic descriptive information, such as age
and gender. Dwayne Yancey, assistant managing editor at the
Times, said the department claimed it must abide by HIPAA
because it provided a medical service that is billed for electronically.
Other local agencies seem to be applying HIPAA beyond its
original intent. Journalists around the country report that police
and fire departments have cited HIPAA for not disclosing
accident information.
When Erik Brooks of the Kenosha (Wis.) News asked a county
health department if there were any local cases of monkeypox,
a disease that was reported to have been found in humans in
Wisconsin, the agency claimed — due to confidentiality reasons
— it could neither confirm nor deny that any cases existed.
Before HIPAA took effect, reporters were able to find important stories that involved health records.
In 1996, Keith Epstein reported for The (Cleveland) Plain
Dealer that researchers were performing pharmaceutical research on people who were uninformed about the full nature of
the work.

In June 2000, “Dateline NBC” aired an investigation showing how State Farm Insurance used unqualified individuals to
review medical claims, and supported lower recommended
payments. Operations inside “the paper review” process were
consistently slanted toward denying claims. The story gained
attention from both the U.S. House of Representatives and the
Senate, and prompted an investigation by the National Association of Insurance Commissioners.
Homeland security and the critical infrastructure
In the creation of the Department of Homeland Security, a
new statute was developed that would allow the department to
withhold “critical infrastructure information.” The Homeland
Security Act criminalizes leaks of unclassified critical infrastructure information provided to the government by businesses
who, in turn, are promised secrecy and immunity from prosecution for sharing the information.
Sen. Patrick Leahy (D-Vt.) called the move “the
most severe weakening of the Freedom of Information act in its 36-year history.”
The actual impact of the act has yet to be seen,
but if current trends hold true, it could mean that
important stories won’t get done. Information about
security vulnerabilities journalists obtained through
FOI requests has led to significant stories that have
informed the public about their communities. Journalists regularly report about problems in industry
that pose threats to local communities and the safety
of infrastructure.
But access to information about industrial vulnerabilities and preparedness was not the only area
where security butted heads with the public’s right
to know what’s going on in their communities.
Access to information about dams, nuclear power plants, pipelines and chemical plants has become much more guarded under
new restrictions designed to keep our “homeland” safe.
Shortly after Sept. 11, data about dam safety was temporarily
unavailable from the Army Corps of Engineers. The data has
since been made available, but could be at risk under the
Homeland Security Act.
In June 1995, Dateline NBC analyzed national data on dams,
showing that thousands of dams were precariously close to
collapse.
In November 1997, a group of University of Missouri students reported for KOMU-TV in Columbia, Mo., that, although more than 1,200 dams in Missouri should have had
Emergency Action Plans in case of a break, only 33 did.
New Federal Energy Regulatory Commission guidelines
protect “critical energy infrastructure information” from disclosure. FERC regulates the interstate transmission of oil,
natural gas and electricity, as well as the construction of natural
gas pipeline facilities. Under the changes, FERC can now limit
access to information that “could be useful to persons in planning an attack on critical infrastructure” and are “exempt from
mandatory disclosure under the FOI Act.”
The agency’s distribution system creates a parallel information distribution system based on its own determinations of
“need-to-know.” Requesters who the agency decides need to
know information would be required to sign nondisclosure
agreements limiting their ability to share the information.
Such regulations would have prevented , for example, a 1996

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 WHITE PAPER: THE LOST STORIES
Time magazine story about the Nuclear Regulatory Commission’s failure to enforce its own safety regulations — and the
dangerous consequences that failure had caused at least one
power plant.
In addition to regulations, other new laws have been passed.
In June 2002, for example, Sen. Christopher “Kit” Bond (RMo.) introduced the “Community Protection from Chemical
Terrorism Act,” legislation that was designed to restrict access
to chemical plant’s risk management plans. Environmental
reporters and citizen groups have used that information to assess
the risk of chemical plants in their areas. Although the information is no longer online, it remains available in EPA reading
rooms around the country.
However, when a chlorine gas cloud spewed from a railcar
near Festus, Mo. — Bond’s home state — reporters did not have
at hand the risk management plan for the company where the
spill occurred.
Sean Moulton, senior information policy analyst with OMBWatch, a federal watchdog organization, says withholding the
information makes little sense, as risk management plans do not
provide overly detailed information about a plant.
“It doesn’t say where [the chemical supply] is stored, nor
indicate what it is stored in,” Moulton said.
“There is a risk when industry is not under the watchful eye
of the public,” he added. “When you get information, you can
create pressure to get something fixed or changed.”
Overzealous administrators and bureaucrats
Other stories are lost due neither to new laws nor to court
actions, but federal administrators who take it upon themselves
to restrict information, particularly that which they think could
in any way be useful to someone with a malicious motive.
In July 2001, Ralph Haurwitz and Jeff Nesmith did a series
of stories in the Austin American-Statesman looking at pipeline
safety around the country. As a result
of the series, federal agencies with
pipeline oversight have increased efforts to update regulatory activities
and rulemaking, Haurwitz said. In
addition, the Texas Railroad Commission levied its largest fine ever
against a company responsible for an
accident in Abilene, Texas.
Some of the data they used, including pipeline incidents and company
financial information, is still available
today. But other information concerning pipelines in environmentally sensitive areas can no longer be obtained.
“Today, if a reporter wanted to do a particular analysis
dealing with these areas, it would be difficult to do it because the
information is no longer public,” Haurwitz said.
The potential for closure of these and other types of “critical
infrastructure information” worries journalism organizations.
“I think if the government gets its way it’s going to be an
awful lot harder to do what we’ve been doing,” said James
Bruggers, president of the Society of Environmental Journalists
and an environmental reporter for The (Louisville) CourierJournal. “I’m not sure what the overall benefit is. The fact that
a lot of this information has been made public has made
communities safer.”

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On Oct. 12, 2001, the Federal Depository Libraries received
a request, on behalf of the U.S. Geological Survey’s associate
director for water, to destroy all copies of a CD-ROM publication: Source area characteristics of large public surface water supplies
I 19.76:99-248 USGS Open-File Report no. 99-248. The CDROM contained databases and electronic maps of surface water
intake locations, streamflow and other characteristics of surface
water. The government said releasing the information would
put America’s water supplies at risk, as terrorists could use it to
find vulnerabilities.
Although that specific CD-ROM has not been used widely
by news organizations, data about ground water has been a
resource for many news stories. In 1990, The (Huntington)
Herald-Dispatch uncovered more than 100,000 potential contamination sources for West Virginia ground water. In 2000,
the Los Angeles Times used city records to trace the origins of
high levels of chromium 6 found in ground water.
Looking to the courts for relief
The judicial branch is responsible for its share of “lost
stories,” as courts have found many ways to limit media access
to important information. Most notably, access to immigration
hearings has been virtually eliminated since Sept. 11.
From hearings for the alleged Washington, D.C.-area snipers to immigration hearings for foreign nationals the government has detained since Sept. 11, reporters trying to inform the
public about the justice system are increasingly running into
closed doors.
Although subsequent hearings have been open to the public
and press, the original pretrial hearings for accused sniper Lee
Boyd Malvo, 17 at the time of his arrest in 2002, were closed.
Malvo, along with John Allen Muhammad, is accused of shooting 19 people — killing 13 and wounding six — in Alabama,
Georgia, Louisiana, Maryland, Virginia and Washington, D.C.
A judge denied media requests for access to
Malvo’s November 2002 hearing, which resulted in
his detainment. But another judge refused to close
Malvo’s preliminary hearing in January. Most recently, a judge banned camera access to the hearing
to determine Malvo’s court date.
As of late October, Muhammad was on trial in
Prince William County, Va. The judge there ruled
against allowing TV cameras, but has allowed still
camera access.
While the media tries to cover the war on terrorism, the doors have been shut to immigration hearings for those detained since Sept. 11.
In September 2001, Chief Immigration Judge
Michael Creppy issued a memorandum closing access to all “special interest” immigration cases.
Two federal appeals circuits are in conflict whether or not
such hearings should be open. A federal appeals court panel in
Cincinnati (6th Cir.) ruled in August 2002 that proceedings for
Rabih Haddad, the Lebanese co-founder of an Islamic charity,
should be open to the press and public. In late January, the
government’s request for a rehearing by the full court was denied.
But another federal appeals court, in Philadelphia (3rd Cir.),
said in October 2002 that deportation proceedings should not
be public.
The U.S. Supreme Court, which often takes cases where
there is a split in the circuits, declined review of the Third

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Circuit’s decision.
It is not only high-profile cases being closed, though. Courts
regularly close proceedings, making it more difficult for the
media to report on cases that give the public insight into the
judicial system.
In December 2002, a federal appeals court in New York (2nd
Cir.) upheld a lower court’s decision to ban the public —
including the defendant’s wife — from parts of the trial of a man
convicted of weapons possession and conspiracy to commit
murder stemming from his participation in a scheme to import
heroin from Turkey.
Media organizations and openness advocates have heralded
a statement made by Judge Damon Keith in the Sixth Circuit’s
decision, that across-the-board closure of immigration hearings
is unconstitutional.
“Democracies die behind closed doors,” he wrote.
But finding out what was going on behind those closed doors
is what allowed Los Angeles Times reporter Lisa Getter in 2001
to report about problems in the immigration system that prevented many people from being granted asylum.
“In 9 out of 10 cases,” Getter wrote, “the judges order the
immigrants deported. A Los Angeles Times examination of the
nation’s immigration courts reveals a system in which judges are
overburdened, immigrants are intimidated and justice often
seems arbitrary.”
In April 2001, The Dallas Morning News reported that “hundreds of foreigners, including asylum seekers and others convicted of no crime, are trapped indefinitely in U.S. jails.”
To do the story, the newspaper pushed for access to
names of individuals being detained by the government,
something that has become virtually impossible since
Sept. 11.
As journalists reported on the arrests and detention of
hundreds of people around the country in the United
States’ war on terrorism, they ran up against government
efforts to keep hearings and even the whereabouts of
detainees secret.
One particularly sensitive and confusing area of terrorism-related detentions deals with people held as
“material witnesses.” Under the material witness statute, any person may be detained indefinitely if their
testimony is “material in a criminal proceeding” and it
would be “impracticable” to expect them to respond to
a subpoena.
One such detainee, James Ujaama, a U.S. citizen, originally
was held as a material witness to terrorist activities. Ujaama, 36,
was later charged with conspiring to provide material support to
terrorists and with possessing and discharging a firearm in
furtherance of a crime. He has since accepted a plea bargain and
is serving two years in federal prison.
While Ujaama was held as a material witness, news media
around the country wanted to tell the public why he was being
held. Particularly interested were media outlets in Denver,
where he was arrested in July 2002, and in Seattle, where he was
a Muslim activist. But the courts thwarted media efforts to gain
access to Ujaama’s hearings and proceedings.
“The story here was whether detention including American
citizens as material witnesses — in some cases for long periods
of time — is legal, constitutional or is a good policy,” said Seth
Berlin, an attorney for The Denver Post. “It’s very difficult to tell
that story if you can’t have access to the proceedings.”

Charlie Brennan, a Rocky Mountain (Denver) News reporter
who covered the Ujaama case, called the process “a nightmare.”
“It just made it extremely frustrating, really impossible to
write anything intelligent about what was happening to this
person and why,” Brennan said. “To be in a situation where
people who are holding a citizen in custody cannot even acknowledge that they are holding that person is frankly scary. I’ve
been a reporter for 22 years and I’ve never seen anything like
that.”
Reporters were denied access to an initial hearing that was
held in Denver on July 26, 2002, to determine the legality of
detaining Ujaama as a material witness, not as a criminal. Later,
when Ujaama was moved by federal authorities to Virginia,
Brennan was told conflicting stories as to whether he was there
at all.
Courts and the privacy debate
Government agencies often choose on their own to raise the
privacy argument when they don’t want to release information.
The dispute over openness must be resolved in the courts.
After two lower court rulings favoring the city of Chicago,
the Supreme Court agreed in November 2002 to decide whether the federal Bureau of Alcohol, Tobacco and Firearms can
withhold federal gun-tracking data from the city. At issue in the
case was access to information on approximately 200,000 firearm traces made by police every year. When police officers
confiscate a weapon in a crime, they track down who made it,
sold it and bought it.
The ATF claimed that releasing gun-tracing information
would “significantly intrude upon
the privacy of hundreds of thousands of individuals — including
firearms purchasers, potential
witnesses to crime and others —
without meaningfully assisting the
public to evaluate the conduct of
the federal government.”
It also argued release of the
records would hinder ongoing law
enforcement investigations.
The dispute started when the
City of Chicago sued the ATF in
1999 after the agency refused to
release gun-tracing data that the city requested under the
federal Freedom of Information Act. Chicago claimed it needed
the information to help prove its case in a $433 million lawsuit
against gun manufacturers the city believed illegally marketed
guns to the inner city. Chicago wanted to use the information to
locate gun sources and analyze trafficking patterns.
Chicago won at both the federal district and appellate levels.
The U.S. Court of Appeals in Chicago (7th Cir.) found that
releasing the information raised neither privacy nor law-enforcement concerns. Rather, the court found that the public
interest would be served by the disclosures.
“Disclosure of the records sought by the City will shed light
on ATF’s efficiency in performing its duties and directly serve
FOIA’s purpose in keeping the activities of government agencies open to the sharp eye of public scrutiny,” the appeals court
held in its March 2002 decision.
The U.S. Supreme Court was scheduled to hear arguments

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March 4, 2003, but a provision inserted into this year’s spending
package as it worked its way through Congress precludes the
ATF from spending any money to release the gun-tracing
information. Rep. George Nethercutt (R-Wash.) introduced
the provision as an amendment to the 2003 Consolidated
Appropriations Resolution, which was signed by the President
on Feb. 20. The House report on the bill said releasing the data
“would not only pose a risk to law enforcement and homeland
security, but also to the privacy of innocent citizens.”
The Supreme Court cancelled the hearing and said the
Seventh Circuit must reconsider the case in light of the change.
News organizations are watching this case closely because
gun-tracing data is an important reporting tool; journalists rely on the data to report on the illegal flow of guns.
News stories have shown how police guns ended up in
the hands of criminals, often through illegal interstate
trafficking.
Using database information that the ATF is now
withholding, The Denver Post identified guns traced
from crime scenes that had been sold by law enforcement agencies. According to the Post’s Jeff Roberts, who
analyzed the data, the newspaper found more than 2,800
examples of such guns from 1994 to 1998.
According to Roberts, after the series ran in September 1999 some Denver-area police departments announced they would stop selling used police guns. Denver
Mayor Wellington Webb, who was president of the
U.S. Conference of Mayors at the time, called on other
departments nationwide to do the same thing.
In December 2000, the Dayton Daily News used gun-tracing
data for its story, “Ohio: The Gunrunner’s Paradise.” The story
showed “more than 1,000 guns used in crimes nationwide came
from Ohio” in 1997 and 1998. But despite the “state’s wellknown role in supplying guns, ATF agents in Ohio rank among
or near the bottom third of all federal districts for generating
criminal cases,” the report showed.
In November 1999, The Washington Post used ATF guntracing data to report that Washington, D.C.’s Metropolitan
Police Department “has traded in nearly 9,000 used guns in
exchange for a lower price on new firearms. Across the Washington area, police have recycled more than 20,000” guns in the
past decade.
Privacy and private property
Privacy considerations go beyond public records. The U.S.
Supreme Court and multiple federal appeals courts have found
that reporters who accompany officials onto private property
can be liable for invasion of privacy. The courts have also found
that police officers can violate search and seizure laws by
bringing a third party with them.
What that means for journalists is that, rather than independently witnessing an event, they must rely only the word of
officials after an event takes place. It is akin to the difference
between being an embedded reporter with a military unit in
wartime, and hearing from Central Command what the unit did.
It is not the same.
In 1999, the U.S. Supreme Court held that police officers can
violate the Fourth Amendment when executing an arrest or
search warrant by bringing members of the media into a private
residence. However, in 2001 CNN and the federal government
settled an invasion of privacy lawsuit brought by Montana

PAGE 6

ranchers. The decision affected the media’s ability to accompany officials to certain places, such as police ride-alongs.
CNN was reporting on the alleged poisoning of eagles and
other birds by ranchers. The case presented the legal question
of whether the media could be liable for accompanying law
enforcement officials on otherwise lawful searches of private
persons.
The suit was filed by Paul and Erma Berger after Fish and
Wildlife Service agents raided the Bergers’ Montana ranch in
March 1993 in search of evidence that they illegally poisoned
the birds. Prior to the raid, the FWS granted a CNN camera
crew permission to accompany the agents onto the property.
During the search, the camera
crew filmed the agents as they
searched the Bergers’ ranch, and
recorded a conversation between
Paul Berger and an FWS agent
who wore a hidden microphone.
The Bergers sued the FWS
and CNN in separate actions, asserting civil rights violations in
both lawsuits and several wiretap
and other state claims against the
network. A U.S. district court
judge in Billings dismissed the
civil rights suit against the network in February 1996, holding
in part that the reporters could not be “state actors” and thus
cannot be sued for civil right violations. The district court also
dismissed the other claims against CNN and its employees.
In November 1997, a panel of the U.S. Court of Appeals in
San Francisco (9th Cir.) reversed the dismissal of the civil rights
claim and the Bergers’ claims of trespass and intentional infliction of emotional distress. The panel held that the news reporters had cooperated so closely with the FWS during the search
that they became joint actors. That decision made CNN susceptible to a lawsuit for violating the Bergers’ civil rights. (See
NM&L, Winter 1998)
In May 1999, the U.S. Supreme Court sent the case back to
the Ninth Circuit to reconsider its ruling in light of the high
court’s finding that the law was unclear at the time of the raid.
At the same time, the Supreme Court ruled in a similar case that
law enforcement officials were entitled to qualified immunity
for their actions because the state of the law was uncertain at the
time of the search. (Cable News Network, Inc. v. Berger; Wilson v.
Layne)
In November 1999, the Ninth Circuit ruled the federal
officials were immune to suit, but media participants were not.
(Cable News Network, Inc. v. Berger)
The “lost stories” here are those where the media serves an
important role as an independent observer of state power. Many
searches and arrests lead to allegations of racial motives, police
brutality or other improper behavior. Allowing news media to
observe such scenes would typically infringe very little on a
true “privacy” interest, and would serve a valuable role in
helping a community understand how its police officers
enforce the law.
Court cases under seal
Important information hidden under seal by courts has
prevented many important stories from coming to the forefront.

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Settlements between the Catholic Church and victims of sexual
abuse by priests were tucked away under seal until only recently.
Settlements between manufacturers and consumers have kept
safety problems under wraps and out of news reports.
In some cases, after great efforts by news organizations, those
documents have been opened. Federal judges in South Carolina
even adopted a new rule, effective Nov. 1, 2002, that bans secret
settlements. The rule applies to all federal district courts in
South Carolina.
But in other cases, important information remains hidden in
court files.
Court records will remain sealed in the high-profile case of
Stephen Roach, a former Cincinnati police officer acquitted of
criminal charges in the shooting death of Timothy Thomas, a
19-year-old, unarmed African American male, that led to city
riots in April 2001. The Dec. 31, 2002, decision by the Ohio
Court of Appeals ended The Cincinnati Enquirer’s yearlong
battle to obtain access to the court records.
In January 2003, a U.S. district court judge in Boston denied
media requests for letters written by confessed “shoebomber”
Richard Reid, claiming the letters could contain coded messages
to other terrorists and put national security at risk.
Access to jurors
Reporters routinely interview jurors following trials to help
explain the deliberation process to readers. But journalists do
not always have access to jurors.
After the trial of Andrea Yates, a Texas nurse who, in 2002,
was convicted of killing her five children, jurors told Dallas
Morning News reporter Terri Langford how they came to their
decision in the controversial case. Jurors also discussed what it
was like to be sequestered for four weeks.
“It is crucial to know how jurors come to their conclusions,”
Langford said. “Interviewing them after any trial allows the
public to gain critical insight as to how jurors decide the fate of
one of their own.”
In the case of Yates, Langford said, it was important to talk
to the jurors to determine exactly what
evidence convinced them that Yates was
guilty of murder and not clinically insane at the time.
When the initial trial for Fred Neulander, a rabbi and former community
leader accused of murdering his wife in
Camden County, N.J., ended in a hung
jury in November 2001, the judge ordered that journalists could not contact
or interview discharged jurors. The Philadelphia Inquirer challenged the court’s
order and lost at the trial court level. On
appeal, the New Jersey Supreme Court
affirmed the lower court’s decision and
expanded the order to prohibit communications with the press,
initiated by the discharged jurors. It reasoned that it was necessary to ban juror interviews to prevent the prosecution from
obtaining an unfair advantage in the retrial of the defendant by
the disclosure of information regarding the jury’s deliberations.
In a friend-of-the-court brief filed by The Reporters Committee for Freedom of the Press, several media groups urged the
U.S. Supreme Court to accept the Inquirer’s petition for review
of the case. The brief contends that the New Jersey Supreme

Court’s order prohibiting juror interviews was an unconstitutional prior restraint that “severely restricts the First Amendment rights of the press and limits the exchange of information
about the administration of justice in our society.”
Electronic access to courts
Access to electronic court records is at a pivotal point, as
courts decide what they will and will not make available.
In 2001, the Justice Management Institute and the National
Center for State Courts began work on developing a model
policy on electronic access to court records. The groups listened
to testimony from those advocating for open access to online
court records and those who claimed that stalkers could use
court information to invade individuals’ privacy.
According to an analysis by the Reporters Committee, the
guidelines the organizations produced do not encourage sufficient public access. The guidelines actually have the potential to
discourage states from making court records fully available
electronically.
Journalists should pay attention to developments in their
own states, while they still have the opportunity for input.
Otherwise, they will wake up one day and wonder what happened to their access.
And unfortunately, too many of the stories being reported
are those warning readers to be leery of Internet scams and
stalkers — and too few explain why access to this information is
important.
Reporters who have used electronic court records know what
important stories can be done.
In October 2002, reporters for WOAI-TV in San Antonio
used electronic court records to show that thousands of accused
criminals in Bexar County, Texas, were getting off the hook
because the justice system there couldn’t process their cases fast
enough.
WSMV-TV in Nashville analyzed electronic court records
in September 2002 and found that a former patrol officer on
disability had been working to defend the same kind of criminals
he used to arrest, and was getting paid by taxpayers
to do both.
When the Tulsa (Okla.) World wanted to look at
the outcomes of juvenile court cases, reporters had
to build their own database using paper records.
Reporters requested a redacted version of the
court’s database, but an exemption in the state’s
open records law allowed the courts to withhold
the data.
The World later asked a federal judge to make
public a database of police data that included the
names of officers, complaints, pedestrian stops
and other information created as part of a settlement in a police discrimination lawsuit. The newspaper won access to the information in a settlement.
In addition, under the terms of the settlement, the department
has to create a database of all of its contacts with the public and
internal affairs investigations. The judge ordered the department to design the database to easily provide public information.
What to do when you still need to do the story?
Journalists may need to be more creative in their newsgathering. When reporters in Roanoke, Va., were unable to get

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 WHITE PAPER: THE LOST STORIES
information about fire victims from emergency response personnel, they didn’t give up on the story. Reporters were able to
get information from neighbors.
Similarly, a Wisconsin reporter trying to get information
about monkeypox did the research by contacting local veterinarians.
The best thing journalists can do is educate themselves about
privacy and access laws so they know when something truly may
be withheld under the law. Some records must be redacted, while
others may be released if the agency deems it in the public interest.
The following are some tips for accessing information:
Do enough reporting to discover the real reason officials are
reluctant.
Follow the food chain. Records get reported to many
agencies at different levels. Try a different source if one is being
particularly reluctant.
Appeal to the public good. Identify important stories that
have been done using the records, showing why aggregated
statistics or anonymous records won’t do.

Appeal to accountability. Many politicians run on “cleaning up the government.” Offer to check their performance.
Find out whether any researchers got the data, and how they
used it.
Avoid promising to use the records for only specific
stories. Try to be general when you talk about how you might
use the information.
Avoid promising that you’ll never try to track down
individuals in a database. You don’t want to be in a position of
having to prove how you found people in your story.
Finally, if closures to places, records or institutions
ultimately could hurt the public interest, report on those
potential closures. ◆
© 2002, 2003 The Reporters Committee for Freedom of the Press. All rights
reserved. No part of this booklet may be reproduced without the prior permission
of the publisher. Additional copies of this report may be obtained from: The
Reporters Committee for Freedom of the Press, 1815 N. Fort Myer Drive, Suite
900, Arlington, VA 22209. Phone: (703) 807-2100. E-mail: rcfp@rcfp.org.
The Lost Stories is also available on the Internet at: www.rcfp.org/loststories

For more information:
HIPAA: The Department of Health and Human Services Office of
Civil Rights has an online guide to HIPAA at www.hhs.gov/
ocr/hipaa.

The Columbus Dispatch, “Wheels of Justice,” Nov. 17-19, 1996

The Reporters Committee for Freedom of the Press has a guide to
help journalists understand the new medical privacy regulation.
The guide is online at: www.rcfp.org/pullouts/medicalprivacy/

The Denver Post, “Guns for Sale,” Sept. 19-21, 1999

The Reporters Committee also follows developments in state
policies on electronic access to court records at: www.rcfp.org/
courtaccess/
Investigative Reporters and Editors Resource Center database of
investigative stories is online at www.ire.org/resourcecenter/.
Stories cited:

The Dallas Morning News, “851 Detained for Years in INS Centers,” April 1, 2001
The Washington Post, “Targeting Guns: The Police Connection,”
Nov. 12, 1999
Time, investigation of Nuclear Regulatory Commission, March 4,
1996
WOAI-TV San Antonio, “A Cosy Connection,” Oct. 17, Oct. 22,
2002
WSMV-TV Nashville, “Disabled former patrolman defended
criminals,” Sept. 23, 2002

Austin American-Statesman, “Spills and explosions reveal lax regulation of powerful industry,” July 22, 2001

Statutes cited:

Dateline NBC, “Swept Away,” June 27, 1995

The Drivers Privacy Protection Act, 18 U.S.C. § 2721 et seq. (2000)

Dateline NBC, “The Paper Chase,” June 23, 2000

The Health Insurance Portability and Accountability Act of 1996
(“HIPAA”), Pub. L. No. 104-191 (104th Cong., 2nd Sess.)

Dayton (Ohio) Daily News, “Ohio: The Gunrunner’s Paradise,”
Dec. 10, 2000
Huntington (W.Va.) Herald-Dispatch, “Protecting the Water We
Drink,” Jan. 21, 1990
KOMU-TV Columbia, Mo., “Dangerous Dams,” Nov. 10-11,
1997

Fed. Energy Regulatory Comm. - CEII guidelines, 68 Fed. Reg.

151 (Aug. 6, 2003), modifying 18 CFR Part 388
Homeland Security Act of 2002, Public Law 107-296, 116 Stat.
2135

Los Angeles Times, “A Man’s Asylum Fight in the Land of the Free,
Judge’s Behavior Sparks Outrage but Little Relief, Few Applicants Succeed in Immigration Courts,” April 15, 2001

Cases cited:

Los Angeles Times, “Calls for Reducing Chromium Levels in Water
Go Unheeded,” Aug. 22, 2000 to Nov. 29, 2000

Department of Treasury v. City of Chicago, 123 S.Ct. 536, 71 U.S.L.W.
3337 (U.S. Nov. 12, 2002), granting certiorari in City of Chicago
v. United States Dept. of Treasury, 287 F.3d 628 (7th Cir. 2002)

Providence Journal-Bulletin, “R.I. System Fails to Fully Check
Driving Records of bus Applicants,” May 11, 1986, and March
1, 1987
The Boston Globe, “Dangerous Passages,” June 4, 2000
The (Cleveland) Plain Dealer, “DRUG TRIALS: Do People Know
the Truth About Experiments?” Dec. 15-18, 1996
The (Cleveland) Plain Dealer, “Safety on Hold,” Jan. 17-18, 1999,
and Feb. 12, 1999

PAGE 8

Cable News Network, Inc. v. Berger, 526 U.S. 1154 (1999)

Detroit Free Press v. Ashcroft, 303 F. 3d 681 (6th Cir. 2002)
North Jersey Media Group, Inc. v. Ashcroft, 308 F.3d 198 (N.J. 2002)
State v. Neulander, 801 A.2d 255 (N.J. 2002), cert. den. sub nom
Philadelphia Newspapers, Inc. v. New Jersey, 123 S.Ct. 1281, 71
USLW 3443 (U.S. Feb 24, 2003)
Wilson v. Layne, 526 U.S. 603 (1999)

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