Thursday, March 26, 2009
Update on SB 419 - bill that would take public notices out of newspapers and put them on the Internet voted out of committee
The Senate Local Government Committee voted SB419 out of committee, with no negative votes, on March 25, 2009. Several senators, including Senator Mike Brubaker (R., Lancaster), expressed concerns about moving public notices to the Internet. Senator Jim Ferlo (D., Allegheny) added that the bill could threaten "a major component of our democracy.” Unfortunately, all members of the Committee voted in favor of the bill. If standard procedure is followed, the bill will go to the Appropriations Committee next.
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Monday, March 23, 2009
Public Notices belong in newspapers
This Wednesday, March 25, 2009, the Senate Local Government Committee is set to consider SB419, which would remove public notice advertising from newspapers and allow government agencies to put notices on government websites. Here is why we believe that is a terrible idea.
Consider the following:
· The bill would undermine transparency in government. Under current law, public notices are required for many projects undertaken by both private and public entities. The public notice process is critical, as it informs members of the public what is happening in their community, gives notice of actions that government representatives are considering, and allows citizens to participate. Newspapers provide an independent, third-party verification that notices were published in accordance with the law. Allowing government agencies to control and post Internet notices would eliminate this independent verification and would expand government in a costly and inefficient manner. Government-controlled notice programs simply wouldn’t accomplish the same thing as printed newspaper notices. They are not independent of the political forces that run them. They are not easily archivable or verifiable. Interested parties use newspaper publication and affidavits to participate in government and to verify that proper notice was (or was not) published. SB419 would create instability and confusion, and would interfere with this public participation.
· Costs of public notice advertising are relatively small. Local government associations maintain that the cost of public notices is an unaffordable, unfunded mandate. In fact, a PNA search of public records, carried out last year and again in January, reveals that those expenditures actually comprise less than half of one-percent of their operating expenditures, regardless of the size of the municipality.
· The Internet cannot replace printed notices, due to unpredictability, impermanence, and a lack of access for many. Internet websites are vulnerable to manipulation, loss of content and technological change. They cannot easily provide a reliable, enduring record. U.S. Census Bureau studies showed that in 2007, 30% of Pennsylvania residents lacked internet access. That figure was even higher for the elderly, for low-income residents, and for those with less education: these are the people who would be disenfranchised by internet “advertising.” Similarly, the Census Bureau indicated that 40% of the residents in Pennsylvania’s major urban centers lack internet access.
· Placing a notice on a government-run website is tantamount to shielding it from public view, as web traffic to local government websites is very low. Web traffic calculator websites confirm that the number of persons viewing newspaper websites dwarfs many municipal websites by at least ten times.
· There would be significant costs to establish and run the proposed Internet-based program. Ramping up agency websites would cost tens of thousands, or more, in development, maintenance, and security, far beyond the current amounts paid. The costs would dwarf the figures agencies now report as internet expenditures. Furthermore, an effort to build robust, searchable websites to provide web-based notice would result in significant new expenditures, which state government would likely be asked to fund.
· Finally, newspapers are already publishing Internet notices. Pennsylvania newspapers have been uploading public notices onto the Internet, at www.MyPublicNotices.com, since 1999.
Are newspapers a business? Yes. Do they receive money for publishing public notices? Of course. But the benefit of having an independent, community-based repository of meeting notices, zoning changes, and lists of unclaimed property (among others) cannot be ignored. Newspapers, more than perhaps any other business, serve the public interest by informing the public about government activities and spending. They accomplish this by pushing for greater access to government, fighting for public records, covering local meetings and court proceedings, and by publishing public notices in their pages. Public notices belong in newspapers.
Consider the following:
· The bill would undermine transparency in government. Under current law, public notices are required for many projects undertaken by both private and public entities. The public notice process is critical, as it informs members of the public what is happening in their community, gives notice of actions that government representatives are considering, and allows citizens to participate. Newspapers provide an independent, third-party verification that notices were published in accordance with the law. Allowing government agencies to control and post Internet notices would eliminate this independent verification and would expand government in a costly and inefficient manner. Government-controlled notice programs simply wouldn’t accomplish the same thing as printed newspaper notices. They are not independent of the political forces that run them. They are not easily archivable or verifiable. Interested parties use newspaper publication and affidavits to participate in government and to verify that proper notice was (or was not) published. SB419 would create instability and confusion, and would interfere with this public participation.
· Costs of public notice advertising are relatively small. Local government associations maintain that the cost of public notices is an unaffordable, unfunded mandate. In fact, a PNA search of public records, carried out last year and again in January, reveals that those expenditures actually comprise less than half of one-percent of their operating expenditures, regardless of the size of the municipality.
· The Internet cannot replace printed notices, due to unpredictability, impermanence, and a lack of access for many. Internet websites are vulnerable to manipulation, loss of content and technological change. They cannot easily provide a reliable, enduring record. U.S. Census Bureau studies showed that in 2007, 30% of Pennsylvania residents lacked internet access. That figure was even higher for the elderly, for low-income residents, and for those with less education: these are the people who would be disenfranchised by internet “advertising.” Similarly, the Census Bureau indicated that 40% of the residents in Pennsylvania’s major urban centers lack internet access.
· Placing a notice on a government-run website is tantamount to shielding it from public view, as web traffic to local government websites is very low. Web traffic calculator websites confirm that the number of persons viewing newspaper websites dwarfs many municipal websites by at least ten times.
· There would be significant costs to establish and run the proposed Internet-based program. Ramping up agency websites would cost tens of thousands, or more, in development, maintenance, and security, far beyond the current amounts paid. The costs would dwarf the figures agencies now report as internet expenditures. Furthermore, an effort to build robust, searchable websites to provide web-based notice would result in significant new expenditures, which state government would likely be asked to fund.
· Finally, newspapers are already publishing Internet notices. Pennsylvania newspapers have been uploading public notices onto the Internet, at www.MyPublicNotices.com, since 1999.
Are newspapers a business? Yes. Do they receive money for publishing public notices? Of course. But the benefit of having an independent, community-based repository of meeting notices, zoning changes, and lists of unclaimed property (among others) cannot be ignored. Newspapers, more than perhaps any other business, serve the public interest by informing the public about government activities and spending. They accomplish this by pushing for greater access to government, fighting for public records, covering local meetings and court proceedings, and by publishing public notices in their pages. Public notices belong in newspapers.
Read more!
Friday, March 20, 2009
Using "March Madness" or other NCAA Trademarks in Advertising
The annual NCAA College Basketball Tournament is upon us, and with it comes advertiser requests to use "March Madness" or other NCAA trademarks. The term “March Madness” is a federally registered trademark and any unauthorized use could result in legal action.
A trademark is a word, phrase, symbol or design that identifies and distinguishes the source of the goods of one party from those of others. Trademark law provides legal remedies for unauthorized use of a trademark. The NCAA has actively pursued unauthorized trademark use and has sent cease and desist letters to advertisers for such use.
In addition to “March Madness,” the NCAA owns the trademark for “Elite Eight” and “Final Four,” and most colleges and universities own the trademarks to their team names and logos. Advertisers wanting to use the term “March Madness” or any other trademark must have prior authorization from the trademark holder or they (and the newspaper) could be subject to legal action.
A trademark is a word, phrase, symbol or design that identifies and distinguishes the source of the goods of one party from those of others. Trademark law provides legal remedies for unauthorized use of a trademark. The NCAA has actively pursued unauthorized trademark use and has sent cease and desist letters to advertisers for such use.
In addition to “March Madness,” the NCAA owns the trademark for “Elite Eight” and “Final Four,” and most colleges and universities own the trademarks to their team names and logos. Advertisers wanting to use the term “March Madness” or any other trademark must have prior authorization from the trademark holder or they (and the newspaper) could be subject to legal action.
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Tuesday, March 17, 2009
Pennsylvania's Sunshine Act
Speaking of Sunshine Week, Michael Berry, a lawyer at Levine, Sullivan, Koch & Schulz, wrote a column that ran in today's Philadelphia Inquirer on Sunshine Act concerns in the Philadelphia area. http://www.philly.com/inquirer/opinion/41358137.html
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Sunshine Week
March 15-21, 2009 is Sunshine Week, which is a national initiative "to open a dialogue about the importance of open government and freedom of information." See http://www.sunshineweek.org/.
Sunshine Week is a project of the American Society of Newspaper Editors (ASNE), funded through a grant from the John S. and James L. Knight Foundation.
The Sunshine Week Website includes a wide range of resources promoting open government, including public service ads, Logos, and a number of interesting columns from open government advocates, including Sen. Patrick Leahy (D-Vt.), Robert Freeman, and Jane E. Kirtley.
It also has a column by Terry Mutchler, Executive Director of Pennsylvania's brand new Office of Open Records. Check it out at: http://www.sunshineweek.org/sunshineweek/terry_mutchler_09
Sunshine Week is a project of the American Society of Newspaper Editors (ASNE), funded through a grant from the John S. and James L. Knight Foundation.
The Sunshine Week Website includes a wide range of resources promoting open government, including public service ads, Logos, and a number of interesting columns from open government advocates, including Sen. Patrick Leahy (D-Vt.), Robert Freeman, and Jane E. Kirtley.
It also has a column by Terry Mutchler, Executive Director of Pennsylvania's brand new Office of Open Records. Check it out at: http://www.sunshineweek.org/sunshineweek/terry_mutchler_09
Read more!
Monday, March 16, 2009
4th Circuit panel rules that cursing about supervisor not protected by NLRA
In a March 13, 2009 decision, the 4th Circuit Court of Appeals ruled that the National Labor Relations Act, 29 U.S.C. 151 et seq. ("NLRA"), did not protect an employee's use of profanity regarding his employer. http://pacer.ca4.uscourts.gov/opinion.pdf/081153.P.pdf
In that case, a pressman at The Tampa Tribune was terminated after he complained, using profanity, about a Tribune vice-president. The vice-president had sent a series of letters to the pressroom workers, describing the status of the collective bargaining negotiations from the management perspective. Not suprisingly, a number of pressmen objected to the letters.
The pressman at issue complained to two supervisors, during a shift, that he was "stressed out" about the latest letter, and that he hoped that "***** idiot doesn't send me another letter...." The conversation took place in an office away from the pressroom floor, and involved the employee and the two supervisors. The employee admitted that he hadn't read the letter, and did not dispute that the letter was legal and accurate.
He was later terminated for violation of Pressroom Office Rule 9, which prohibited, among other things, the use of "[t]hreatening, abusive, or harassing language...disorderly conduct...and all disturbances interfering with employees at work anywhere in the building."
The employee filed charges against the company, which were dismissed by the Administrative Law Judge (ALJ). On appeal, the National Labor Relations Board (NLRB) reversed the ruling regarding the termination, finding that the dismissal violated the NLRA.
The Tribune appealed, and the U.S. Court of Appeals for the Fourth Circuit found for the employer, ruling that there was no protection for the employee's profane remark regarding his employer, which was directed to his supervisors, during work hours, in the work place, in a conversation initiated by him, and regarding an accurate and legal letter he had never read. The Court also emphasized that the comment was both physically and temporally removed from the ongoing collective barganing negotiations.
Judge King filed a dissenting opinion.
The Zinser Law Firm represented Media General Operations Inc., d/b/a The Tampa Tribune.
In that case, a pressman at The Tampa Tribune was terminated after he complained, using profanity, about a Tribune vice-president. The vice-president had sent a series of letters to the pressroom workers, describing the status of the collective bargaining negotiations from the management perspective. Not suprisingly, a number of pressmen objected to the letters.
The pressman at issue complained to two supervisors, during a shift, that he was "stressed out" about the latest letter, and that he hoped that "***** idiot doesn't send me another letter...." The conversation took place in an office away from the pressroom floor, and involved the employee and the two supervisors. The employee admitted that he hadn't read the letter, and did not dispute that the letter was legal and accurate.
He was later terminated for violation of Pressroom Office Rule 9, which prohibited, among other things, the use of "[t]hreatening, abusive, or harassing language...disorderly conduct...and all disturbances interfering with employees at work anywhere in the building."
The employee filed charges against the company, which were dismissed by the Administrative Law Judge (ALJ). On appeal, the National Labor Relations Board (NLRB) reversed the ruling regarding the termination, finding that the dismissal violated the NLRA.
The Tribune appealed, and the U.S. Court of Appeals for the Fourth Circuit found for the employer, ruling that there was no protection for the employee's profane remark regarding his employer, which was directed to his supervisors, during work hours, in the work place, in a conversation initiated by him, and regarding an accurate and legal letter he had never read. The Court also emphasized that the comment was both physically and temporally removed from the ongoing collective barganing negotiations.
Judge King filed a dissenting opinion.
The Zinser Law Firm represented Media General Operations Inc., d/b/a The Tampa Tribune.
Read more!
Thursday, March 12, 2009
Police Incident Reports
One of the most frequent questions to our legal hotline is, "What records should I be able to get from the state or local police?" It is so common, in fact, that we regularly run it as a Q&A in the PNA's weekly newsletter, Headlines & Deadlines, http://www.headlinesanddeadlines.org/. It also shows up in multiple forms in our "From the Hotline" archive, http://www.headlinesanddeadlines.org/Hotline/FAQ_archive.html.
The short answer is that under the Criminal History Record Information Act, 18 Pa.C.S.A. § 9101, et seq., police blotters, press releases and criminal dockets are public records. Additionally, Pennsylvania courts have determined that police incident reports are public records. See Tapco, Inc . v. Township of Neville, 695 A.2d 460 ( Pa. Cmwlth. 1997). In other words, basic information, such as names of those involved in an incident, a brief description of the incident, and any charges filed, are public. In contrast, more detailed police investigative records are generally not public.
We are very interested in an appeal currently pending before the Pennsylvania Office of Open Records, relating to access to police information. Briefly, the Potter Leader-Enterprise in Coudersport, Pa, requested a police incident report relating to an altercation. Both the accused and the alleged victim were adults (66 and 41, respectively), and according to the press release, a charge of harassment was filed against the accused. Obviously, criminal charges are a matter of public record. The press release issued by the state police did not identify the alleged victim, so the newspaper asked for the complete incident report relating to the incident. The request was denied, and the newspaper appealed.
We expect a ruling from the Office of Open Records any day now and will update the Blog when it is posted. We recognize that some have strong views about disclosing the identity of victims, and many newspapers do not publish names of minor victims or victims of certain types of crimes. We agree with these policies.
But should all victim identities be shielded from public view? We don’t think so.
Our entire criminal justice system is founded on principles of openness and fairness. Access to public records serves the public in many ways, including allowing people to understand what is happening in their communities. Once charges are filed, the identities of those involved are a matter of public record. An open criminal justice system promotes public confidence that proceedings and investigations are being conducted fairly. As explained by the courts, it also discourages perjury, misconduct, or decisions based on secret bias.
We are looking forward to seeing the decision.
The short answer is that under the Criminal History Record Information Act, 18 Pa.C.S.A. § 9101, et seq., police blotters, press releases and criminal dockets are public records. Additionally, Pennsylvania courts have determined that police incident reports are public records. See Tapco, Inc . v. Township of Neville, 695 A.2d 460 ( Pa. Cmwlth. 1997). In other words, basic information, such as names of those involved in an incident, a brief description of the incident, and any charges filed, are public. In contrast, more detailed police investigative records are generally not public.
We are very interested in an appeal currently pending before the Pennsylvania Office of Open Records, relating to access to police information. Briefly, the Potter Leader-Enterprise in Coudersport, Pa, requested a police incident report relating to an altercation. Both the accused and the alleged victim were adults (66 and 41, respectively), and according to the press release, a charge of harassment was filed against the accused. Obviously, criminal charges are a matter of public record. The press release issued by the state police did not identify the alleged victim, so the newspaper asked for the complete incident report relating to the incident. The request was denied, and the newspaper appealed.
We expect a ruling from the Office of Open Records any day now and will update the Blog when it is posted. We recognize that some have strong views about disclosing the identity of victims, and many newspapers do not publish names of minor victims or victims of certain types of crimes. We agree with these policies.
But should all victim identities be shielded from public view? We don’t think so.
Our entire criminal justice system is founded on principles of openness and fairness. Access to public records serves the public in many ways, including allowing people to understand what is happening in their communities. Once charges are filed, the identities of those involved are a matter of public record. An open criminal justice system promotes public confidence that proceedings and investigations are being conducted fairly. As explained by the courts, it also discourages perjury, misconduct, or decisions based on secret bias.
We are looking forward to seeing the decision.
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