Ashland council wrestles with media access
Ashland City Council tangled this week with the practical ramifications of a question perpetually engaging media law specialists, elected officials and journalism classrooms alike:
Who is a journalist?
The discussion Monday came on the heels of an individual being denied entry to a Jan. 18 executive session — interpreted as a cautious choice to protect the integrity of closed sessions by some; a threat to open press access by others.
City Manager Joe Lessard said the issue called for the protection and balancing of three elements: The public’s right to information per state law, the confidentiality of sensitive information, and the city council’s “deliberative process.”
According to City Attorney Katrina Brown, about an hour before the executive session, which was slated to cover “real property transaction,” the city recorder sought guidance on a request for admittance from an individual — with no evidence offered to substantiate that the person represented news media — leading to Brown’s denial of the request.
“The only information I had at the time was a person’s name,” Brown said Monday. “I am aware of the person from doing public records requests, but there’s been no indication this person is affiliated with any news media whatsoever.”
Brown determined that to be admitted, a person must be a “legitimate representative of an institutional news media,” and advised the city recorder to deny access in the interest of “protecting the integrity of the executive session” — lacking time to gather further credentials, she said.
Part of the problem, according to Brown, is the courts have yet to define “news media” in case law.
After Jan. 18, an agenda item was scheduled to address the city’s lack of policy regarding news media attendance at executive sessions, and to consider policy defining sufficient media credentials, according to council documents.
In a social media post Saturday before the study session, Mayor Julie Akins tagged public groups and individuals in a call to join her in opposing the “extreme overreach” of staff authority, after Ashland Chronicle writer Dean Silver “was banned from the executive session without criteria,” she said.
“On Monday at 5:30 p.m., the Ashland City Council, despite many arguments to reconsider, will be hearing from the city attorney an argument to further limit transparency in Ashland on what I can only see as an assault on the free press and your rights to have a watchdog evaluating your government,” Akins wrote. “She banned someone on her own, checked with no one, and had no criteria. Now she seeks council to back up a unilateral decision.”
Linda Peterson Adams, member of the Transportation Commission, in an email to Brown, Lessard and council Jan. 30, supported the agenda item and raised adherence to the code of conduct.
“Again, Mayor Akins has used social media to preemptively and selectively provide information to the public, which has created unwarranted attacks on you and our former city attorney and caused an unnecessary uproar,” Peterson Adams wrote.
Rachel Alexander, spokesperson for the Society of Professional Journalists Greater Oregon Pro Chapter, urged the council to reject any restriction of journalist access to executive sessions or the barring of journalists “based on a city-approved list of acceptable media outlets.”
Carol Voisin, publisher, editor and co-incorporator of The Ashland Chronicle, said Monday in public testimony that the city attorney “never made a request” for information validating Silver as a member of news media.
Bert Etling, executive editor of the Ashland.News website, said reporter Holly Dillemuth also “was not given access to the meeting,” and questioned the efficacy of adopting and enforcing a policy allowing the City Council to “pick the journalists it feels comfortable with monitoring its behavior.”
Brown said she was not aware of a second individual attempting access.
During the study session Jan. 31, discussion centered around interpretations of state law and an attorney general opinion from 2016, though refinements in the most up to date opinion might prove more informative to future council action.
According to the 2019 Public Records and Meetings Manual, all meetings of a governing body must be open to the public, except in permissible executive sessions. The media must be allowed access, including by electronic means, unless the executive session is held to address labor negotiations, hearings concerning expulsion of a minor student or examination of a student’s confidential medical records.
“Representatives of the news media are expressly allowed to attend executive sessions, with some exceptions,” according to the manual. “However, the governing body may require that these attendees not disclose specific information discussed at the sessions.”
Defining a news media representative proved an enigma for the council — one that legal opinions attempt with lengthy, subtle descriptions.
Lacking a “bright-line definition,” the manual recommends consultation with legal counsel when “non-traditional” journalists request closed session attendance.
On its website, The Ashland Chronicle cites a mission “to inform and inspire local citizens to participate politically and protect our democracy,” and features a Local/County section, Susanne Severeid’s Soapbox, a button to donate, opinion columns and a link to the website of Ashland Citizens for Economic Sustainability on its homepage.
As the presiding officer during the Jan. 18 meeting, Akins said she vouched for The Ashland Chronicle as a media institution and for Silver as a reporter, urging his allowance into the meeting.
Akins is listed as previous president and co-incorporator of The Ashland Chronicle Corporation, which was registered as an inactive domestic nonprofit as of the last filing with the Secretary of State, dated May 21, 2020.
Silver, a self-titled investigative journalist, said being denied access to the executive session highlighted staff’s overreach of authority and “a lack of transparency.”
“The discussion scheduled for tonight is obviously just a solution in search of a problem,” Silver said. “Of course, you can choose to discuss this, but it’s a nonissue. The city attorney was in error.”
Following a request for future access from an Ashland.News reporter, Brown said, she and Lessard decided the topic was ripe for City Council discussion to gauge interest in adopting policy to define news media and representatives.
While municipal policies on media access exist — Brown referenced Salem and Oregon City examples — the 2019 manual cautions that such policies are “unenforceable to the extent they conflict with the statutory requirements.”
Lessard said establishing some guidance or tool was appropriate to balance factors at play and establish a system for correcting mistakes.
“When you have access to executive session items and anyone has sensitive information that could enhance or damage the city’s business interests, they are in a position of control,” Lessard said. “They could influence the City Council unduly by inappropriately exposing that information at an inopportune time.”
Councilor Shaun Moran said public testimony and dozens of emails from journalists and residents backed up Akins’ characterization of the Jan. 18 access denial as an “error” that failed to fall back on openness, and the council had more important issues at hand. Moran made a motion to make no changes to the existing media protocol.
Councilor Stephen Jensen contradicted portrayal of the incident as a “concerted effort on the part of city staff to squash media exposure,” dubbing it a case of technological issues coupled with lack of familiarity with the individual who requested access.
“[This has] whipped up community outrage looking for city staff malfeasance and evil intent, and that is certainly not the case,” Jensen said. “If we don’t do this, then anybody who comes along who has written an opinion piece somewhere could ask to be attending an executive session.”
“[It’s our job to] come up with something that makes it to where we are, as a body, certainly not in any way infringing on the media’s right and responsibility to do their work, but are making sure that we also protect the purpose of those executive sessions,” Councilor Tonya Graham said, adding “dismay” that the public conversation unfolded from an incident worth revisiting to “destructive” allegations of a deliberate effort to take away citizens’ rights.
Akins, taking the opposite view, said, “It is absolutely not the job of the Ashland City Council to decide what news media is,” repeating references to the ORS as guidance.
“[ORS] is a roadmap which we have used lo these many years and a roadmap which most cities in the state of Oregon use and are completely content with,” Akins said. “An error was made on Jan. 18, pure and simple. … What we don’t want to do is double down on an error and turn it into a policy.”
“I think that if we try to narrowly define or bring down some sort of a definition on what is legitimate news media, we do so at our own peril, because this is the body that’s held accountable for the sunshine laws,” she said, urging the council to take no further action.
Councilor Paula Hyatt proposed for discussion giving staff direction for internal procedure — developing a staff reference tool of known media organizations, with the default of “if we don’t know, allow,” she said.
“We didn’t get it right because we didn’t have the tools to do it right when we were under pressure of time and technology,” Hyatt said.
Akins said in the interest of “leaning into transparency and away from exclusion,” the council did not need to add tools beyond the ORS, and that relying on the statewide standard was a “safer” way to avoid picking favorites or determining who’s fit to cover the city.
Rather than a list of approved media reps, as referenced in the City of Salem, Graham said the city needed a “set of basic information” to determine eligibility, and that giving no staff direction left the city recorder in the “impossible situation” of navigating a nuanced statute.
“We will either continue down the road where we are right now, which is that the next time anybody from the public asserts that they are a media representative, our staff still doesn’t know what to do with them other than simply allow them in,” Graham said. “We need some bars to know who is appropriate to admit to those meetings.”
Brown said creating a list of media is permissible, but as with other cities referenced, criteria must be defined in policy for recognizing new entities that come online.
Coming tomorrow: The Ashland City Council debates how to proceed within the guidelines of state law — offering proposals, refinements in attorney general opinions and other cities’ attempts to adapt to an evolving media landscape.