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Ashland debate hinges on media identification

Andy Atkinson / Mail Tribune
The Ashland City Council met Monday to discuss the issue of media access to executive session portions of council meetings. (Screen capture from Zoom)
City Council discusses options defined by Oregon law, attorney general opinion

Second of two parts

This week, the Ashland City Council dived into what proved to be a perplexing endeavor to define news representatives in a contemporary media landscape.

The discussion Monday came on the heels of an incident involving an individual who writes for The Ashland Chronicle website being denied entry to an executive session held via Zoom — interpreted as a cautious choice to protect the integrity of closed sessions by some; a threat to open press access by others.

Part of the problem, according to City Attorney Katrina Brown, is the courts have yet to define “news media” in case law.

During the study session Jan. 31, discussion centered around interpretations of state law and an attorney general opinion from 2016 — but according to the 2019 Attorney General’s Public Records and Meetings Manual, the 2017 legislative session saw the most significant changes to the Oregon Public Records Law since it was enacted in 1973.

Oregon Attorney General Ellen Rosenblum noted, “the 1973 Legislative Assembly could not have foreseen subsequent technological changes that would enable the rise of a large class of ‘citizen journalists.’”

Permitting media attendance at executive sessions was intended to “foster good relations” with news organizations, offer background information for future reporting, and keep governing bodies accountable — media presence likely encourages compliance with statutory restrictions on closed sessions because reporters can disclose anything the governing body covered outside the authorized scope, according to the latest manual.

A media representative is defined as “a news gatherer who has a formal affiliation with an institutional news medium, that is, with an entity formally organized for the purpose of gathering and disseminating news,” including specialty publications and internet media — with some nuances vulnerable to controversial interpretation.

“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,” according to the manual.

Relevant factors: Whether the entity has staff, formal business structure and regularly distributes news to the public. Lacking a “bright-line definition,” the manual encourages consultation with legal counsel in the case of closed session attendance requests from bloggers or non-traditional journalists.

Without distinguishing between individuals and media entities, Brown said, the purpose of differentiating executive sessions from business meetings or study sessions becomes moot.

While municipal policies on media access exist — Brown referenced Salem and Oregon City as examples — the 2019 manual cautions that such policies are “unenforceable to the extent they conflict with the statutory requirements.”

Governing bodies cannot limit attendance to one representative from each news medium, exclude a representative with personal interest in the subject or for failing to provide media credentials within certain deadlines, nor require advance notice of a reporter’s intent to attend.

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

In footnotes, Rosenblum clarifies, a reporter is a news gatherer, while a newspaper advertising manager is not, and would not qualify as a news media representative. Harking back to the 2016 opinion, the effect of policies adopted by governing bodies surrounding executive sessions can be tricky.

Governing bodies are “bound by the statutory requirement” to admit news media representatives, and wrongful exclusions are subject to investigation by the Oregon Government Ethics Commission. Civil penalties for violations total up to $1,000, unless the governing body acted under advice of legal counsel.

Public meetings law prohibits excluding a media representative who has “disclosed confidential information from prior executive sessions or who represent news media organizations that have done so.”

However, “governing bodies may adopt screening criteria…consistent with the meaning intended by the Legislature,” and, “a policy requiring proof of media status can be consistent” with public meetings law, according to Rosenblum’s 2016 opinion.

Brown and City Manager Joe Lessard brought the item to the City Council to gauge interest in policy defining news media and representatives — the result exposing only further complexity.

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.”

“I do not know, quite frankly, in that type of circumstance, as rare as it may be, how I can do anything other than to allow access and turn a blind eye to those other two considerations,” Lessard said.

Brown said generating 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.

Beyond two initially named organizations, to be recognized as a news media organization in Oregon City, an entity must submit a written request and provide evidence “that the entity is organized and operated to publish, broadcast or disseminate news to the public,” according to a resolution establishing Oregon City’s policy.

Eligibility thresholds include that the publication, broadcast or website contain at least 25% news content and news produced by the entity’s own staff, “must not serve primarily as a platform to promote the interest and/or opinions of a special interest group, individual or cause, or as a forum to air grievances, engage in gossip or for personal attacks or character assassination.”

The City of Salem’s policy on media attendance at executive sessions outlines eligibility in the context of an outdated and elusive definition of “news media” given technological advancements since the establishment of public meetings law that allow for the widespread individual (rather than institutional) dissemination of content.

The adopted policy officially recognized about two dozen print, radio and television entities as eligible news media organizations with an established history of meeting policy requirements — barring others until the city makes a determination (within 15 days of receipt) on evidence of eligibility that must be provided 30 days in advance, requiring proof of identity plus a recently published article in or letter from an editor of a recognized publication. Such requests may be required in writing, according to Salem’s policy.

According to the 2019 Attorney General’s Public Records and Meetings Manual, without specification by the presiding officer or the governing body by motion, executive session proceedings are fair game for public disclosure, and media representatives are under no obligation to refrain or “keep confidential any information the reporter independently gathers as the result of leads obtained in an executive session.”

“Absent any such specification, the entire proceeding may be reported and the purpose for having an executive session may be frustrated,” according to the manual. “The experience of more than three decades has been that the media, by and large, honor the nondisclosure requirement. Ultimately, ‘enforcement’...depends upon cooperation between public officials and the media.”

During the study session, Ashland Mayor Julie Akins said in the interest of “leaning into transparency and away from exclusion,” the City Council did not need to add tools beyond Oregon law, and that relying on the statewide standard was a “safer” way to avoid picking favorites or determining who’s fit to cover the city.

Akins, listed as co-incorporator in documents filed with the Secretary of State in May 2020, said the concept for establishing the Ashland Chronicle as a nonprofit was abandoned in July 2020 and she had no formal affiliation apart from submitting letters to the editor.

Rather than a list of approved media representatives, Councilor Tonya Graham said the city needed a “set of basic information” to determine eligibility, and that without staff direction, the city recorder stands in the “impossible situation” of navigating a nuanced statute.

Councilor Paula Hyatt — conceding support for a motion by Councilor Shaun Moran to make no change to existing media protocols — emphasized a need for staff to be given procedural clarity in order for the City Council to function and to uphold press access.

Councilor Stephen Jensen proposed a registration process, whereby those seeking attendance specify their name, organization and basic contact information.

Hyatt offered an amendment, passed unanimously, stating that while the City Council will not proceed with any new ordinance or resolution, staff is directed to obtain name, phone number, email for the meeting Zoom link and applicable organization for requests. The motion then passed 5-1.

Graham, the nay vote, said the overall motion contradicted itself by both offering no direction and describing explicit changes, and that the criteria for who is allowed into executive sessions remained undefined.