It’s not our fault you’re bad at this: Law and ethics and “accidentally” public information

Journalists often use open records requests to shed light on things public officials would prefer remain secret. Courts often seek to balance the public’s right to know against individual privacy rights in determining which documents merit public scrutiny and which ones should be kept out of the public eye.

In some cases, courts or public information officials will try to “split the baby” on the release of documents through a process known as information redaction. For example, if a document contains information that meets the standard of public information, but it also includes information that should clearly remain private, record keepers can “black out” those private parts before releasing the documents. Here’s an example of what that might look like:

redact

In the “old days, the copying and redacting process was often done with a thick, black marker and a photocopier. Now, since many of the documents are kept and shared digitally, records keepers use PDFs and some Adobe editing tools to do the redactions, which is what led to a clash between the Broward school district and the South Florida Sun-Sentinel.

The paper requested documents pertaining to the school district’s interactions with Nikolas Cruz, the former Marjory Stoneman Douglas student, who killed 17 people at the school in February. The courts ruled that the documents should be released, but that certain information needed to be redacted, which the district thought it did.

However, when reporters downloaded the files and pasted the information into a word-processing file, they found that all of the redacted information was visible. They also found that the information in the documents painted a much different picture of Cruz and the school district than the public officials had put forth. Seeing this information as valuable and in the public interest, the Sun-Sentinel published it. The judge who ordered the release of the documents was not pleased about this, as she demonstrated in a hearing to determine if the reporters should be held in contempt of court: 

Scherer was not swayed. She threatened to restrict what the media can report, a practice known as prior restraint.

“From now on if I have to specifically write word for word exactly what you are and are not permitted to print – and I have to take the papers myself and redact them with a Sharpie … then I’ll do that,” she said.

At this point, let’s unpack a few things you might find useful or at least amusing:

  • The statement Judge Elizabeth Scherer issued about writing “word for word exactly what you are and are not permitted to print” is a bit scary and more than a bit unconstitutional. The courts cannot dictate content to the press in this fashion. It’s barely legal for your high school principal to do this, and that’s only through gross misinterpretation of one of the worst court cases in media law history.

 

  • In the video, the judge berates the publication for manipulating the documents by downloading them and then pasting them into another program, saying she had “never heard of such a thing.” Scherer is 42 years old, so computers have been around for much of her lifetime. It’s not like she’s Sen. Strom Thurmond, who lived to be 101 and once referred to a microphone as “the machine.” I have no idea how she never had to use a PDF before. In any case, just because you don’t understand how something works, it doesn’t follow it’s not standard operating procedure for the rest of the world.

 

  • She also made this statement: “You all manipulated that document so that it could be unredacted,” Scherer said. “That is no different than had they given it to you in an old-fashioned format, with black lines, and you found some type of a light that could view redacted portions and had printed that. It’s no different.”
    Right, and I know that more than a few of us have done something like this to try to figure out what was behind the black lines. In the days of typewriters, the keys made impressions on the page, which were still visible through the black marker. With toner (essentially plastic powder melted onto a page), the black of the text was different from the black of the marker, which allowed reporters to backlight the page and read the content. None of this is illegal.

 

  • I checked in with two legal experts about the issue of publishing information that was intended to be redacted to see what the law had to say about the topic. Both of them told me that it’s the record keeper’s job to redact the information he or she wants to keep out of the public eye. It’s not the newspaper’s job to look the other way. In short, it’s not our fault you’re bad at this. The law does not prohibit the publishing of this information.

What you should be concerned about is the ethical issues associated with publishing information in a case like this. This is where the balancing test comes into play, where you weigh the public’s right to know against an individual’s right to privacy. As one of the “legal eagles” explained to me:

Basically, I think it’s completely ethical for journalists to hold redacted documents up to the light (or, in the digital sense, to search for letters/words to see if they show up in the redacted blocks of text). In fact, I think our job demands us to find out as much info as possible (seek truth and report it, right?).

That said, I think ethics come in when it comes to publishing. It’s a bit like handling a leak — what distinguishes us from Wikileaks, besides the Russian control and efforts to undermine democracy of course, is that we make editorial decisions based on journalism principles and practices. So you’ll be balancing public need to know with privacy concerns.

So, as a reporter, you might not want to publish certain information you receive from a source or a document, such as the name of a crime victim or an unproven rumor. However, that’s a judgment call that rests with the journalists, not the courts. When you have the information, it’s up to you to determine what the public should know and what they probably shouldn’t. It’s a monumental responsibility, but that’s why journalists make the big money.

The paper saw within the documents a pattern of the district failing Cruz, as it denied him access to services he desperately needed. Reporting this information was within the best interest of the public, the paper decided.

Earlier reporting on this, done without those documents, was refuted by the superintendent, Robert Runcie, who called the coverage inaccurate and even “fake news.” Runcie and his colleagues sought to hide these failures and gloss over the district’s responsibilities and without those reports, the paper was at a decided disadvantage. This is why open records matter and why using the information within them can shine a light where it matters most.

5 thoughts on “It’s not our fault you’re bad at this: Law and ethics and “accidentally” public information

  1. Frankly, in this case, the judge is 100% correct. Specific information was forbidden from being released and the media released it anyway in direct defiance to the court’s ruling on the matter.

    It really doesn’t matter that they got the restricted information through the vagaries of technology and of the incompetence of the school board’s people. They violated a court order and should face the requisite punishments for doing so.

    • vffilak says:

      Jonolan,
      Thanks for reading the blog and thanks for your interest in this topic.
      The judge in this case would not be able to punish the newspaper for its actions, or if she did, it would be reversed on appeal. The controlling case in this instance is Florida Star v. BJF (1989), which held that it is unconstitutional to punish a newspaper for publishing truthful information that the government released, regardless of its intent to do so.
      I checked back on this with two media lawyers to confirm this and they stated this is correct.
      Best,
      Vince (a.k.a. the Doctor of Paper)

      • I disagree that Florida Star v. BJF is pertinent since, in this instance, it is a case of the publication of specifically restricted data, whereas the case you cite deals with both a statute and information left in plain sight, which was then published (unethically, but legally). I.e., Florida Star v. BJF is not a controlling case in this instance.

        But, of course media lawyers would claim otherwise and use it to appeal. That doesn’t mean they’d win or that it’s “good law.”

      • Oh! Let me add that I’m happy we got that information. It’s just my happiness with getting it doesn’t mean crap when it comes to the law’s demands upon us all, which I don’t believe should be affected by the outcome of breaking it.

      • vffilak says:

        Jonolan,
        I find that for me, the law is a lot like poker: there are stronger and weaker hands to play, but there’s always an element of the unexpected when it comes to how things will end up. I’d be interested to know what case you think would apply to the Parkland situation and how it deals with the issue at hand.

        In rereading the articles on the release of the document, as well as the subsequent articles on it, it was the district who should be on the receiving end of any legal grief from the judge, given their release of the information in a way that could easily be read. If I had to come up with an analogy, I’d draw one like this: My kid asks if she can let the dog eat the rest of the food on her plate. I tell her, “Yes, but make sure you don’t give her any of the cheese you took, because it’ll make her sick.” Zoe says, “OK” and puts the plate on the ground. Of course, she didn’t look carefully enough, the cheese is hidden under something else. The dog subsequently eats it and gets sick. Who’s at fault here? The dog, who acts as it is ascribed to by its nature (and yes I don’t like the fact I’m comparing my career field to that of a dog), or the kid who didn’t do a good enough job of making sure the plate had no cheese?

        Like I said, it’s random, but so is the law. I’m interested in the cases you think would give the judge the ability to be 100 percent right, as you noted earlier, keeping in mind the First Amendment issues at stake.

        Best,

        Vince (a.k.a. Doctor of Paper)

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