College Forgets How The First Amendment Works; Targets Its Own Student Newspaper With A Public Records Request
from the seems-like-it's-time-for-a-refresher-course dept
A California community college has discovered open records requests. It’s not receiving them, which would be normal. Instead, it’s filing them. And in doing so, it’s attempting to bypass the state’s journalist shield law by pretending the party it’s FOIAing is a public entity.
In an apparent attempt to regain narrative control of an incident involving the college’s administration and the student government, Southwestern College is seeking to obtain the recording of that event by the school’s student newspaper. The recording is of a student government election that was abruptly cancelled by the school’s president in May, apparently over a bogus Instagram post that suggested one group of students was going to engage in interracial violence.
The school was rebuffed when it swung by the newspaper to ask for a copy of this recording. So, it decided to go with plan B: a public records request.
As FIRE (Foundation for Individual Rights in Education) reports, the school is attempting to obtain something protected by the state’s shield law. The school is aware of this because the student newspaper told it as much when it asked the first time. So, it made an official request and appended a lot of garbage to its request in an attempt to talk the newspaper into believing it was subject to public records requests.
Less than a week later, the administration hand-delivered a second letter to the permanent adviser, now back from medical leave, incorrectly alleging that the newspaper was a government actor and thus subject to the California Public Records Act. Further, the Title IX director claimed that not producing the records was “subversion of the public’s right to access” in violation of the Society of Professional Journalists’ Code of Ethics.
The school is so so so very wrong. It has now received a letter [PDF] of its own from FIRE — crafted by Adam Steinbaugh — that enumerates the many ways the college screwed up. To begin with, the college’s interpretation of the state’s public records law gets everything backwards.
The novel theory underlying the District’s request—that student organizations are subject to the California Public Records Act (CPRA) because they are entities that are “part of the larger Southwestern Community College District” and are engaged in activities “funded by the College District, and produced by students”—finds no support in the CPRA.
The CPRA does not confer a public right to access records of private entities, but instead allows public access to public agencies.
The school’s belief the student newspaper is as “public” as the university where it resides is also wrong. As Steinbaugh notes, the paper is an auxiliary organization distinct from the college. If the school truly believed the paper was part of its public whole, it would have approached a separate office of the school’s administration to submit its public records request.
Furthermore, even if the school was right and the paper was subject to the state’s public record laws, the paper would still be well within its rights to withhold the recording. The paper’s First Amendment rights, along with the state’s shield law, would give it all the permission it needed to deny the request.
The deference afforded to journalists’ protection of confidential sources and unpublished information cannot be understated. There is a “paramount public interest in the maintenance of a vigorous, aggressive and independent press capable of participating in robust, unfettered debate over controversial matters . . . .” Los Angeles Mem’l Coliseum Comm’n v. Nat’l Football League, 89 F.R.D. 489, 495 (C.D. Cal. 1981). Even leaving aside the considerable First Amendment right to resist government efforts to compel the release of unpublished information, as discussed below, California has elevated a journalist shield law in its state constitution. (Cal. Const., Art. I § 2 subd. (b).) 7 Similarly, California goes to great lengths to place barriers between student newspapers and their host institutions. (Ed. Code § 66301 subd. (a) & (f) (barring administrators from taking action to penalize students or faculty advisers for students’ protected expression).) Southwestern may not make an end-run around these barriers by resorting to an unorthodox application of the CPRA.
Steinbaugh also reminds the college to tread carefully now that it’s been told multiple times to GTFO. Retaliation against protected speech is a helluva tort and public college administrators cannot expect qualified immunity to save them if this turns litigious.