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Ashland council wisely steers clear of defining reporters

The Ashland City Council found itself tangled up in the question of who is a journalist last week, prompted by a request from an Ashland resident who wanted to attend an executive session — a meeting closed to the public but open to news reporters. In the end, the council made the very wise decision that it should not attempt to decide who is and is not a journalist.

Oregon public meetings law allows governing bodies such as city councils to hold executive sessions closed to the public for specific reasons: to consider the employment or discipline of a public employee, to discuss real property transactions, to discuss labor negotiations and to discuss litigation or potential litigation, among other things. The body may not take final action or reach a final decision in closed session, but must return to open session first.

Unlike most states, Oregon law specifically allows news media representatives to attend closed sessions, with some exceptions, but the governing body may require that reporters not disclose specific information discussed there.

The law does not provide a clear definition of who qualifies as a news media representative. The Attorney General’s Public Records and Meetings Manual — the bible of Oregon open government laws — notes that “The news media is not limited to traditional print and broadcast media, but can include internet media. For example, while a blogger keeping an online personal journal with reflections and comments would likely not qualify as a representative of the news media, an individual who regularly posts for a website maintained by a traditional media company (e.g., cnn.com) likely would qualify. Relevant factors typically include whether the entity has staff and a formal business structure and regularly disseminates news to the public.

“Because no bright-line definition exists, we encourage governing bodies to consult with their legal counsel when receiving a request from a blogger or other non-traditional journalist to attend an executive session.”

That’s what happened in Ashland when city resident Dean Silver, who contributes articles to the Ashland Chronicle website, asked to attend an executive session of the City Council. The city recorder administering the Zoom meeting asked City Attorney Katrina Brown whether Silver should be allowed to attend. Brown did not have any information about Silver’s media affiliation or lack thereof, and advised that he should be excluded.

The Ashland Chronicle, founded by former City Council member Carol Voisin, contains articles about city government with a distinct point of view, and provides a link to Ashland Citizens for Economic Sustainability, a political action committee that works to influence city budget decisions. Silver also has contributed articles to the ACES website.

Some would argue that makes Silver an activist, not a news media representative. But, as the attorney general’s manual notes, “no bright-line definition exists.”

The problem with trying to draw that bright line is that it puts elected officials in the position of deciding who has the right to observe what they do, and that is dangerous.

The manual also states that governing bodies may adopt policies regarding access to executive sessions, but they are unenforceable if they conflict with the law permitting reporters to attend.

“For example,” the manual states, “a governing body cannot limit attendance to one representative of each type of news medium; exclude a representative with a personal interest in the executive session’s subject matter; exclude a representative for failing to provide media credentials within certain deadlines; or require representatives to provide advance notice of their intent to attend an executive session.

“However,” the statement continues, “governing bodies are not required to accept a mere assertion that a person qualifies as a news representative.”

So it would appear that the Ashland city attorney was within her authority to decline to allow Silver to attend that specific session in that specific instance. Was that, in the words of Mayor Julie Akins, “extreme overreach” on Brown’s part? Not in our view.

Brown then asked the council to clarify who is and is not a news media representative, and the council wisely declined to do that.

While it may make some government officials uncomfortable to allow people who disagree with them to observe official proceedings, that is the very essence of what a free press means.