Does the reporters’ shield survive death? And another way to foil FOIA

Published November 2022

Eric Robinson
By Eric P. Robinson, USC School of Journalism and Mass Communications

The murder of Las Vegas Review-Journal investigative reporter Jeff German—for which a former local official who lost his reelection bid and was then removed from office after German exposed improprieties in his office has been charged—is a troubling reminder that journalists’ jobs can be dangerous, especially when revealing things that some people don’t want known.

Thankfully—unlike some places in the world—killing journalists for their work is relatively rare in the United States. Prior to German’s murder, it had been four years since the last murder of a journalist in the U.S.; the mass shooting at The Capital Gazette newspaper offices in Annapolis, Maryland by a man who had unsuccessfully sued the newspaper for libel.

While investigating German’s murder, Las Vegas police seized his phone, computers and external hard drive. And while they apparently have ample evidence that the former official committed the murder, they claim that they need to access these devices in order to prosecute the case. But the Review-Journal has objected, saying that the devices contain information about confidential sources unrelated to the murder case.

Nevada’s reporters shield law is considered one of the strongest such laws in the country, and according to the Reporters Committee for Freedom of the Press “confers an absolute privilege upon reporters and protects unpublished and published materials, and the confidential sources of the information, from disclosure in any proceeding.” (South Carolina’s shield law is less absolute, and requires journalists to disclose sources when the information is relevant and necessary, and cannot be reasonably obtained by alternative means.)

A local Nevada judge barred the police from searching German’s devices, until a process could be established that would allow police to access only material related to the murder. The police appealed this ruling to the Nevada Supreme Court, but that court sent the case back to the trial court after issuing a temporary injunction barring the police from inspecting the devices.

So it remains unclear whether Nevada’s reporters shield statute—or those of other states, including South Carolina’s—applies after death, and if so who can invoke it. As to the latter point, there are court precedents in Nevada holding that a news organization can invoke the privilege for its (living) reporters. (Meanwhile, the South Carolina statute specifically protects “[a] person, company, or entity engaged in or that has been engaged in the gathering and dissemination of news for the public …” from having to disclose a source unless the conditions stated above are met.)

Another Means of FOIA Denial: Unfortunately in South Carolina we are doomed to state and local government boards and agencies routinely violating the state’s Freedom of Information Act. Often in such cases the only solution is to sue the offending entity in state court to get the information released or practices changed. But even that may not be enough, when the courts themselves violate the provisions of the FOIA law by simply ignoring such a lawsuit.

That’s what happened in a lawsuit filed by The State against Lexington-Richland School District 5 after the board approved a $226,000 settlement agreement with former Superintendent Christina Melton during a closed meeting of the board’s officers. The board re-approved the settlement in an open meeting after the newspaper filed the lawsuit.

South Carolina’s FOIA law requires that upon the filing of a motion seeking declaratory judgment and/or injunctive relief under the FOIA law, “the chief administrative judge of the circuit court must schedule an initial hearing within ten days … .” But no such hearing was scheduled within that time frame, either after the lawsuit was initially filed on July 23, 2021 or when The State filed a motion for summary judgment on Feb. 11, 2022.  Instead, a hearing on the motion was held on July 18, 2022.

Finally, on Oct. 20, Circuit Judge Alison Lee issued a ruling granting the school district’s prior motion to dismiss the case, which the district had filed on Feb. 24, on the grounds that because “no hearing was held within the allotted timeframe,” the case should be dismissed.

So the courts have apparently found a new way to stymie the Freedom of Information Law, by simply failing to schedule a hearing in a lawsuit seeking to enforce it.

The State has filed a motion for Lee to reconsider her ruling dismissing the case. In that motion, the newspaper’s lawyers argue that the dismissal is an “absurd result … in which a litigant can be thrown out of court for something completely out of his or her control.”

And the newspaper filed it before the deadline for submitting such a motion.

Eric P. Robinson focuses on media and internet law as associate professor at the USC School of Journalism and Mass Communication and Of Counsel to Fenno Law in Charleston / Mount Pleasant. He has worked in media law for more than 25 years and is admitted to legal practice in New York and New Jersey and before the U.S. Supreme Court. This column is for educational purposes only; it does not constitute legal advice. Any opinions are his own, not necessarily those of his employers.

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