Newspapers and other news organizations routinely utilize public records laws to obtain information and documents from governments and related institutions.
Now, a government-funded college – Southwestern Community College in Chula Vista, California – is trying to turn the tables, demanding that the student newspaper hand over records under the same law.
The Foundation for Individual Rights in Education, FIRE, called it “an alarming move should concern anyone who supports a free press, student or otherwise.”
“This is man-bites-dog stuff – usually it’s the student newspaper that FOIAs the college, not the other way around,” said Adam Steinbaugh, who wrote to the school on behalf of FIRE.
The dispute centers on a May article that reported the college “abruptly” canceled a student government election based on “learning about a fake Instagram post that made it appear a slate of black candidates was attempting incite racial violence.”
FIRE explained that Gloria Chavez, Southwestern College’s Title IX director, contacted the temporary faculty adviser to the student newspaper, The Sun, requesting any “[v]ideo footage, including audio, taken during a May 2 student government meeting.”
The adviser replied that The Sun would not produce the requested records, if they existed, because they are protected by California’s shield law.
College officials responded with a demand letter arguing that the newspaper was a government actor and therefore must comply with the California Public Records Act.
The college claimed the student newspaper was engaging in “subversion of the public’s right to access information.”
FIRE then wrote a letter to Kindred Murillo of the office of the school superintendent, citing the local chapter of the Society of Professional Journalists’ determination that the newspaper has not violated any of the society’s ethics codes.
“Protecting unpublished material, which can be done for a variety of important reasons, is a basic tenet of journalism that we urge the school to honor in preparing its students for careers in the field,” the SPJ chapter wrote on its website.
FIRE’s Steinbaugh said Southwestern’s use of a public records request “is as puzzling as it is novel.”
“The district’s use of a directive under the California Public Records Act is an astonishing affront to the rights of student journalists, betraying the institution’s obligations under the First Amendment and California law,” he said.
FIRE argued in its letter that state law “does not confer a public right to access records of private entities,” but instead allows public access to public agencies, and the newspaper, unlike the college, is not a public entity.
“Just as not every student is a state actor by virtue of being granted admission to a public college, not every entity within a college’s community is a state agency.”
Further, California protects journalists in its state constitution, the letter said.
And FIRE argued that the college should already be aware of what went on at the meeting, since its president was there.
“Southwestern cannot meet the heavy burden required to overcome a student journalist’s First Amendment Rights,” FIRE continued.
“It has long been settled law that the First Amendment is binding on public colleges like Southwestern … [but] the First Amendment not only protects the spoken and written word, but encompasses the ‘act of making an audio or audiovisual recording’ as a necessary ‘corollary of the right to disseminate the resulting recording.'”