City of Collinsville properly classified online publisher as recurrent requester, not news media

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Dear

argue that Internet journalists should be treated like print media, citing the New Hampshire Supreme Court's decision in Mortgage Specialists, Inc. v. Implode -Explode Heavy Industries, Inc., 160 N.H. 227, 999 A.2d 184 ( N.H. 2010).

On October 26, 2016, an Assistant Attorney General in the Public Access Bureau asked you to provide an example of your electronic publications. In response, you furnished addresses of the websites www. collinsvillemalcontents. com and www. madisontaxpayer. com. On November 3, 2016, you also sent this office a photograph of press credentials issued to you by the Madison County Sheriff's Office. During a telephone conversation with an Assistant Attorney General on November 3, 2016, you stated that you published www.collinsvillemalcontents. com, and you and other members of the public posted information on www. madisontaxpayer. com.

DETERMINATION

Section 2(g) of FOIA (5 ILCS 140/ 2(g) ( West 2015 Supp.), defines a "recurrent The Public Access Bureau has previously determined that the plain language of section 2( f) limits the definition of "news media" to a medium such as a " newspaper," periodical," or a " news service," or an electronic version thereof. 3 See Ill. Att'y Gen. PAC Req. Rev. Ltr. 35187, 35393, issued May 27, 2015, at 3. With respect to a self -published website, this office has concluded that the statutory definition requires more than simply establishing a website as a means to communicate:

Merely disseminating information or criticism electronically though a website, for via e- mail, does not meet the statutory definition of "news media." If it did, then any person who chose to post an opinion or, comment on a matter of public interest electronically would become a news medium, which was clearly not the intent of the General Assembly when it enacted the exception. Ill. Att'y Gen. PAC Req. Rev. Ltr. 33323, issued February 13, 2015, at 4.

The Illinois appellate courts have not analyzed whether the statutory definition of "news media" in FOIA or an analogous statutory definition such as " news medium" contained in the " reporter's privilege act" 4 may apply to individuals or entities that self -publish material on the Internet. However, courts in other jurisdictions have recognized that " self-appointed journalists or entities" who claim statutory protection under reporter shield laws as media members " require more scrutiny" than traditional newspaper or television reporters. Too Much Media, LLC v. Hale, 206 N.J. 209, 242, 20 A.3d 364, 383 ( N.J. 2011).

In Too Much Media, the New Jersey Supreme Court reviewed whether the definition of "news media" contained in New Jersey' s reporter shield law included blogger postings on an on- line bulletin board. The shield law defined " news media" as " newspapers, magazines, press associations, wire services, radio, television or other similar printed, photographic, mechanical or electronic means of disseminating news to the general public." Too Much Media, 206 N.J. at 229, 20 A.3d at 376. The court focused its analysis on whether the material was " similar" to those produced by traditional media sources, and concluded that the blogger had not demonstrated that she was " news media" because the posted content was unedited personal commentary that was not sufficiently similar to a newspaper or other traditional media. Too Much Media, 206 N.J. at 234- 37, 20 A.3d at 378- 80.

Similarly, in Obsidian Finance Group, LLC v. Cox, CV -11 - 57 -HZ, 2011 WL 5999334, at * 1 ( D. Or. Nov. 30, 2011), a federal district court rejected an internet blogger's claim that she was protected under the Oregon reporter shield law, which defined a " medium of communication" as " any newspaper, magazine or other periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system." The court identified several factors relevant to its determination that the blogger was not a member of the media: ( 1) education in journalism; ( 2) credentials or proof of an affiliation with a recognized news entity; ( 3) proof of adherence to journalistic standards such as editing, fact - checking, or disclosures of conflicts of interest; ( 4) keeping notes of conversations and interviews conducted; ( 5) mutual understanding or agreement of confidentiality with sources; ( 6) creation of an independent product rather than assembling writings and posting of others; and ( 7) contacting both sides of a story. Obsidian Finance Group, 2011 WL 5999334, at * 5. The court concluded that "[ w] ithout evidence of this nature, defendant is not ' media.'"

In contrast, in O'Grady v. Superior Court, 139 Cal. App. 4th 1423, 44 Cal. Rptr. 3d 72 ( Cal. Ct. App. 2006), the California Court of Appeals held that the " reporter shield" in the California Constitution and a related statute protected two websites from being held in contempt of court based on the websites' similarities to the types of media specified in those constitutional and statutory provisions. Both provisions contained identical language that extended protection to a " publisher, editor, reporter, of other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed," and a " radio or television news reporter or other person connected with or employed by a radio or television station, or any person who has been so connected or employed[.]" Cal. Const. Art. 1, § 2( b); Cal. Evid. Code § 1070( a) ( West 2006). The court emphasized that the websites " reflect a kind and degree of editorial control that makes them resemble a newspaper or magazine far more closely than" web -based bulletin boards and reasoned that " the open and deliberate publication in a news -oriented Web site of news gathered for that purpose by the site' s operators * * * appears conceptually indistinguishable from publishing a newspaper[.]" O'Grady, 139 Cal. App. 4th at 1450, 1459, 44 Cal. Rptr. 3d at 91, 99.

As you cited, the New Hampshire Supreme Court also held that a website was subject to its constitutional newsgathering privilege. Mortgage Specialists, 160 N.H. at 234, 999 A.2d at 189. Notably, the court was construing the provision of the New Hampshire Constitution N.H. Const. Part 1, Art. 22)) that generally provides for freedom of speech and freedom of the press without defining covered press entities or otherwise limiting its application to certain types of media, as section 2( f) of FOIA does. In addition, the court accepted the trial court' s findings that the website at issue was " a legitimate publisher of information and a member of the press." Mortgage Specialists, 160 N.H. at 233- 34, 999 A.2d at 189. Accordingly, Mortgage Specialists is not instructive on the issue of how section 2( f) applies to the websites at issue in this matter.

As described in the other cases discussed above, in order to be considered a member of the news media covered by reporter shield statutes, an individual or entity that self - publishes information on the Internet generally must demonstrate some adherence to recognized journalistic standards such as editorial oversight or the creation of original content similar to that of traditional media. These courts' rationales are consistent with the plain statutory language of section 2( t) of FOIA that limits its application to a " newspaper," " periodical" or " news service" and their electronic versions. The General Assembly has not expanded the definition in FOIA to include other individuals or entities apart from those traditional media sources and their electronic versions.

This office has reviewed the websites you provided. The website www.collinsvillemalcontents consists of links to public records that it appears were obtained through FOIA or public court files. The website www.madisontaxpayer.com consists of links to news publications. Neither website contains original content or credits particular authors with any material posted on them. Given the absence of features such as editorial oversight and originalincontent, form Accordingly, this Office concludes thatou are not exempted bythe Y p news -media exception from the recurrent requester provision of FOIA, and that no further action is warranted as to this matter. If you have any questions, please contact me at ( 217) 782- 9078.

Very truly yours, NEIL P. OLSON Deputy Public Access Counselor Assistant Attorney General, Public Access Bureau 44649 f no fi war mun cc: Via electronic mail Ms. Kim Wasser Freedom of Information Officer City of Collinsville 125 South Center Street Collinsville, Illinois 62234 kwasser@collinsvilleil. org