Media Access



Public scrutiny for prisons 

Thursday, September 2, 2004 
 

IT'S BEEN nearly 10 years since the California Department of Corrections adopted rules to bar journalists from interviewing prisoners, abolishing firsthand accounts of life inside walled-off compounds, hidden from public view. 

The change ended two decades of open scrutiny that had flawlessly occurred without a hint of danger to inmates, guards or public security. 

Meanwhile, for the past decade, the prisons have been stewing in chaos that is only now coming to light: internal corruption, abuse of prisoners, cost overruns and guard misconduct that has cost taxpayers billions of dollars and put the system on the verge of a federal takeover. 

Sunshine is the antidote to these types of abuses of the public trust. That's why SB1164 by Sen. Gloria Romero, D-Los Angeles, is so critical. It restores media access to prisons -- particularly the right to confidential, face-to-face interviews and a guarantee of no reprisals against the inmates who grant them. 

Three similar bills have passed the state Legislature only to be vetoed by Republican Gov. Pete Wilson and Democratic Gov. Gray Davis. This time we appeal to Gov. Arnold Schwarzenegger, who was elected on a platform of open government, to remove the cloak of secrecy by signing SB1164. 

URL:  http://sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2004/09/02/EDG7O8HHO51.DTL  



http://www.mercurynews.com/mld/mercurynews/news/local/states/california/peninsula/8009579.htm

Posted on Sat, Feb. 21, 2004 
 

Media hoping governor will loosen prison interview restrictions

STEVE LAWRENCE
Associated Press

SACRAMENTO - News organizations are hoping that a string of prison scandals and Gov. Arnold Schwarzenegger's talk about a more open government will translate into fewer restrictions on interviews with inmates.

The groups are backing bills by Sen. Gloria Romero, D-Los Angeles, and Assemblyman Mark Leno, D-San Francisco, that would overturn 8-year-old regulations that prevent reporters from arranging interviews through the Department of Corrections with specific prisoners.

Critics say the regulations have made it tougher for the news media - and the public - to learn what goes on behind prison walls. Recently, California's prison system has come under serious scrutiny after a series of riots, reports of secret organizations among guards and deaths of inmates.

"This will just bring further transparency to the department, and given that we are talking about the fastest growing department in state government ... more transparency is better," said Leno.

Department officials say reporters have plenty of access to work on their stories, despite the limitations.

"In practice, the media are in our prisons nearly every single day," said spokeswoman Terry Thornton.

To obtain a face-to-face interview with a particular inmate, the regulations require a reporter to write and ask the prisoner to send a form the journalist must fill out to get on the inmate's list of authorized visitors.

Once a reporter has been placed on the list, a process that takes about 30 working days, the reporter can visit the inmate during regular visiting times. But visiting hours are generally limited to weekends and reporters must compete for time with the inmate's family, friends and attorneys, critics say.

And the rules bar reporters from bringing tape recorders and cameras. Spiral notebooks with wire that could be turned into a weapon can be turned away, but paper, pens and pencils are allowed, said Thornton.

The prison will also provide paper and pencils, according to the department's media policies.

Reporters can write and request that a prisoner call them collect, although those conversations are limited to 15 minutes and can be recorded by prison officials.

Reporters are also allowed to interview prisoners they encounter at random during prison tours.

Critics of the rules say they are so limiting that many news organizations have cut back on their prison coverage.

"It's not that there isn't any access whatsoever," said Jim Ewert, an attorney for the California Newspaper Publishers Association. "It's just that it's so diminished now that it's nearly impossible to conduct meaningful interviews."

Romero's bill would let reporters again arrange face-to-face interviews with a particular inmate through department media officers, although officials could limit the number of interviews a prisoner could have, set reasonable limits on time and place and bar interviews that would pose a threat to public safety. The bill also notes that interviews have been arranged in the past without any safety problems and there is "no legitimate reason for a blanket ban on media interviews with specific prisoners."

The legislation would permit the department to set up a pool interview arrangement if officials received a large number of requests for interviews with the same prisoner.

Leno's bill, as now written, wouldn't go that far. It would expand the current interview policy by letting a reporter who got on one prisoner's visitation list also visit any inmate at the same facility during regular visiting hours if the prisoner was allowed to have visitors and was willing to be interviewed. That arrangement would be good for a year and could be renewed.

Both bills would require prison officials to continue to allow journalists to interview prisoners at random while taking a prison tour or doing a story on a prison activity, program or event.

And both bills would allow reporters to receive confidential mail from prisoners unless it posed a threat to public safety - as well as let reporters bring tape recorders, cameras, pens, pencils, paper and other material needed to conduct the interviews.

Hoping to avoid a veto, Leno said he hopes to get some signal from Schwarzenegger's staff about how the governor feels about the bills before considering any changes.

The regulations the bills target were developed under Republican former Gov. Pete Wilson, who argued they would reduce the chance that media coverage would turn inmates into celebrities.

"Interviews with prisoners about their crimes tend to glamorize criminal activity and criminals at the cost of pain to crime victims," Wilson said in vetoing 1997 legislation that would have overturned the new rules.

Former Democratic Gov. Gray Davis, using some of the same arguments as Wilson, twice vetoed bills that would have scrapped the regulations.

Backers of the two bills hope Schwarzenegger, who advocated more open government during the recall campaign that ousted Davis, will be willing to change.

Easing access to prisoners could make it easier to uncover, or head off, prison scandals, they say.

Schwarzenegger spokeswoman Terri Carbaugh said "open government is of importance to this administration," but she also said the governor wouldn't take a position on the bills until he sees them in their final form.

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On the Net: Read the bills, SB1164 and AB1866, at  www.senate.ca.gov  and  www.assembly.ca.gov . Department of Corrections' media policies are at  www.corr.ca.gov/CommunicationsOffice/PressReleases/media_policies.asp



U.N.I.O.N. MEMBERS PUBLISHED ARTICLES ON MEDIA ACCESS TO PRISONERS AND PRISON BUILDING

http://www.ocregister.com/liberty/editorial1.shtml

Open prisons to news media

September 11, 2000

Even as the state Legislature was passing a new law, AB 2101, to reverse regulations promulgated by the California Department of Corrections five years ago that severely restricted the ability of reporters to interview most prisoners in California's prison system, the department has been seeking to make its restrictions even tighter. Governor Davis should sign AB 2101, and the proposed changes to Section 3261.1 of Title 15 of the California Code of Regulations should be rejected.

The regulations written five years ago allowed reporters to see prisoners only if they were on that specific prisoner's visitor's list and barred the use of notebooks, pencils, cameras or tape recorders. The news media have been upset ever since, and everybody knew the Legislature supported new laws to make media access easier and more realistic.

On Sept. 6, however, the Department of Corrections closed public comment on a set of changes to media access regulations that were purportedly only to clarify grammar but, in fact, restricted access further. They would allow media access "only with the prior approval of the institution head" and would allow officials to discriminate in favor of reporters "on news assignments, as opposed to those on feature stories without deadlines."

As the Society of Professional Journalists noted, in objecting to the regulations, "Those of us who work in the field know of no generally accepted distinction" between feature stories and breaking news and, "In any case, government has no authority to control access based on its characterization of the content of the ensuing news stories."

The California Newspaper Publishers Association also filed a powerful objection, contending the proposed regulations violate the First Amendment and the California Public Records Act. There's another problem with the proposed regulations, as the prison activist organization UNION (United for No Injustice, Oppression or Neglect) pointed out. "Stories frequently feature the very people who would be given control over whether or not a journalist can enter prisons. "Department officials have no business dictating or prioritizing which news can or can't be disseminated to the public," said the UNION.

The Department of Corrections is a government agency funded by your tax dollars whose activities should be subject to public scrutiny. These unseemly efforts to restrict media access to taxpayer-funded institutions should be ended immediately.

#1 newspaper in Orange County, California

---------------------

September 6, 2000

Bonnie Garibay, Chief
Regulation and Policy Management Branch
California Department of Corrections
P.O. Box 942883
Sacramento, California 94283-0001

Re: Oppose Changes to Title 15 CCR, Section 3261.1

Dear Ms. Garibay:

I am writing on behalf of United for No Injustice, Oppression or Neglect, (U.N.I.O.N.) an organization of approximately 4800 teachers, social workers, doctors, nurses, college professors, journalists and families of prisoners to oppose the Department of Corrections' proposed changes to Title 15 of the California Code of Regulations, Section 3261.1.

The U.N.I.O.N. believes the proposed regulations would place journalists in a position where they would be unable to their jobs. Stories frequently feature the very people who would be given control over whether or not a journalist can enter prisons. Department officials have no business dictating or prioritizing which news can or can't be disseminated to the public. This flies in the face of basic democracy and allows cover-up of important emergencies, such as riots, disease quarantines and mistreatment of prisoners.

These regulations are a direct violation of the Constitution. Many of the records furnished to our organization show a pattern of medical neglect, physical and psychological abuse, rape, murder and torture of inmates. This is, under the terms California Public Records the Act (CPRA), public information which is vital to the public safety. Proposed section 3261.1(b) states, "No . . . records under control of the department shall be used in conjunction with film making, radio or television programs, or the writing of books magazine articles or syndicated stories without prior approval of the director."

Inmates and their families send us hundreds of documented cases every week. This information is on CDC's own forms. We in turn furnish this information to our members who are journalists within the media. There is no way to control records and it is a violation of the First Amendment to attempt to do so.

Moreover, the Department's Initial Statement of Reasons regarding the amendment of Section 3261.1(a) states this section is being amended for "clarity and grammatical correctness." The Statement of Reasons is weak and there is no excuse to discriminate against journalists in particular. The exclusion of freelance journalists is very disrespectful because the more successful journalists are usually freelance and working on books instead of being tied into a media outlet. The Department clearly doesn't know the news business.

Wardens should not be given power over the press since their careers and "image" with their superiors is often more important than humane treatment of prisoners.

The CPRA, established by Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the California Government Code, provides that access to information concerning the conduct of the public's business is a fundamental right of every person in this state. This statutory presumption of access to public records applies to all state and local agencies, including the Department of Corrections.

Nowhere does the CPRA, even under a skewed interpretation allow an agency to deny access to a public record based on the intended use of the information.

The department in a footnote to proposed Section 3261.1(b), cites as legal authority for implementing the proposed regulation, Civil Code Sections 1798.20, 1798.30 and 1798.40-42 (commonly known as the Information Practices Act). However, in its citation of the Information Practices Act the department failed to include Civil Code Section 1798.75, which states, "This chapter shall not be deemed to supercede Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the California Government Code, except as to provisions of Sections 1798.60 and 1798.70."

Thus, Civil Code Section 1798.75 expressly prohibits the department from relying on provisions of the Information Practices Act as a legal basis for adopting a regulation that allows the director to arbitrarily usurp the department's statutory obligation to provide access to public information.

The First Amendment was written to prevent powerful government officials from being able to conceal information about unbearable incompetence within their own ranks. The United States Supreme Court requires a very good reason for violations of the First Amendment. In this instance, there is every reason for controls not to be in place for the good of the public safety and no valid reason for these regulations.

The public has a right to know, and when the news comes strictly from inmates and their families, the Department is more at risk than if professional journalists are welcomed inside to give accurate coverage. However, our organization will continue to keep the media fully informed on conditions and the medical crises now in full bloom inside all 33 prisons regardless of any stops that are imposed. There is no reason for these regulations other than to cover up wrong-doing in our view.

We are not going to sit idly by and be the pawns of the Governor and the legislators any longer without protest. We will make certain that the news gets out to the media, one way or another.

We should all remember history when the first thing Hitler did was to suppress the journalists.

For all of these reasons, the UNION strongly urges the department to reject adoption of the proposed changes to Section 3261.1

Sincerely,

B. Cayenne Bird, Director

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Dear Editor:

Who owns California's multi-million dollar state prisons? The Governor? The wardens? The prison guards' union? Or we taxpayers? A taxpayer may not wish to head for the closest prison and personally step into the warden's shoes, but he or she certainly should wish to know how such a huge tax bite is being chewed.

As your 9/11/00 editorial pointed out, Gov. Davis has a bill on his desk right now, AB 2101, which would restore the right of journalists to do a very natural thing--take a notebook, pencil, camera, or tape recorder inside to conduct interviews. That's the only way we the public can learn what goes on and how our money is being spent. Doesn't shining the light of day inside encourage better conditions for those who work there as well as those who live there?

Deborah D. Jimenez

------------------------

September 5, 2000

Bonnie Garibay, Chief
Regulation and Policy Management Branch
California Department of Corrections
P.O. Box 942883
Sacramento, California 94283-0001

Re: Oppose Changes to Title 15 CCR, Section 3261.1

Dear Ms. Garibay:

I am writing on behalf of the California Newspaper Publishers Association (CNPA), an association of approximately 500 daily and weekly newspapers, to oppose the Department of Corrections' proposed changes to Title 15 of the California Code of Regulations, Section 3261.1.

CNPA believes the proposed regulations would place journalists in an inferior position to the general public. Specifically, as amended, Section 3261.1(a) provides, "Media representatives, as defined in section 3000, may be authorized access to a department facility or contract facility only with the prior approval of the institution head."

The use of the word "may" in this context, would vest wardens at each California prison with unfettered discretion to deny access to a journalist solely on the basis of his occupation. However, a warden who attempts to deny access to a family member of an inmate or any other member of the public based on what the individual does for a living would have no statutory or regulatory authority to do so. For example, a warden would have difficulty, legally denying a father the ability to visit with his inmate son solely because the father is a janitor.

Moreover, the Department's Initial Statement of Reasons regarding the amendment of Section 3261.1(a) states this section is being amended for "clarity and grammatical correctness." The Statement of Reasons is silent as to the policy justification for potentially denying access to one small segment of the public based on a person's occupation as a journalist while continuing to allow access to the rest of the public.

The proposed regulation also attempts to thwart the department's clear obligation to provide public information pursuant to the California Public Records Act (CPRA). Proposed section 3261.1(b) states, "No . . . records under control of the department shall be used in conjunction with film making, radio or television programs, or the writing of books magazine articles or syndicated stories without prior approval of the director."

The CPRA, established by Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the California Government Code, provides that access to information concerning the conduct of the public's business is a fundamental right of every person in this state. This statutory presumption of access to public records applies to all state and local agencies, including the Department of Corrections.

While the CPRA recognizes certain exemptions to the presumption of open access to public records, nowhere does the CPRA, even under a tortured interpretation of statutory construction, allow an agency to deny access to a public record based on the intended use of the information.

The department in a footnote to proposed Section 3261.1(b), cites as legal authority for implementing the proposed regulation, Civil Code Sections 1798.20, 1798.30 and 1798.40-42 (commonly known as the Information Practices Act). However, in its citation of the Information Practices Act the department failed to include Civil Code Section 1798.75, which states, "This chapter shall not be deemed to supercede Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the California Government Code, except as to provisions of Sections 1798.60 and 1798.70."

Thus, Civil Code Section 1798.75 expressly prohibits the department from relying on provisions of the Information Practices Act as a legal basis for adopting a regulation that allows the director to arbitrarily usurp the department's statutory obligation to provide access to public information.

CNPA also opposes Section 3261.1(c). Subsection (c) provides, "Reporters on news assignments, as opposed to those on feature stories without deadlines, shall be given preferential access in the event of a breaking news story."

This proposed language is problematic for several reasons. The greatest concern, is that department officials would be able to exercise discretion now performed by newspaper editors when determining what constitutes breaking news versus feature stories. Furthermore, the regulation fails to define the meaning of the terms breaking news or feature stories or provide guidance to the potentially regulated community as to how these decisions would be reached. Arbitrary decisionmaking by a government official in denying access to a facility based on the content and the purpose for which information would be used is contrary to traditional democratic principles and long standing constitutional interpretation.

The wellspring for speech and press protections set forth in the First Amendment was the overriding fear of powerful government officials using their power to suppress and conceal information about government activities. In furtherance of these constitutional protections, the United States Supreme Court created a strict scrutiny test for courts to use when balancing the need for government regulation against a constitutionally protected activity. This strict scrutiny test requires the government to show it has a compelling need to limit a constitutionally protected activity.

The department, in its Initial Statement of Reasons, claims the need to amend the regulations is to accommodate media who operate under deadlines. Under a strict scrutiny analysis, the department must show that it has a compelling need to accommodate journalists with deadlines that is far greater than the need to protect a newspaper's ability to decide how breaking news or feature stories will be defined. The reasons for the proposed regulations offered by the department, in CNPA's view, fall far short of being compelling.

Besides promoting suspicion and mistrust of the department and its motives, the proposed policy of excluding journalists who otherwise have an equal right of access to a prison facility, due to the timing and content of their newsgathering efforts, diminishes the importance of the public's right to obtain and understand information relating to the operation of its prisons.

For all of these reasons, CNPA strongly urges the department to reject adoption of the proposed changes to Section 3261.1

Sincerely,

James W. Ewert
CNPA Legal Counsel

cc: Craig Harrington, CNPA President, Publisher, Intermountain News, Burney,

Hal Fuson, V.P. and Chief Legal Officer, The Copley Press, Inc.
Jack Bates, CNPA Executive Director
Thomas W. Newton, CNPA General Counsel

Department of Corrections
Regulation and Policy Management Branch
P.O. Box 942883
Sacramento, CA 94283-0001

RE: CDC Notice of Rules Change, Number 00/08

The Society of Professional Journalists, the nationís oldest and largest association of journalists, opposes the amendment of Sections 3261.1, Media Access to Facilities, and 3261.2, Authorized Release of Information, Title 15 of the California Code of Regulations, as issued June 23, 2000.

These amendments are a direct violation of the First Amendment because they give the Department of Corrections discretion to control access to its facilities based on the content of news stories and the nature of the medium in which those stories are reported. Such content-based regulation is forbidden by the Supreme Court as a violation of the First Amendment.

The department proposes to distinguish between "feature" and "breaking news" stories without ever defining those terms. Those of us who work in the journalism field know of no generally accepted distinction. In any case, government has no authority to control access based on its characterization of the content of the ensuing news stories or its interpretation of the priority that a news organization places on its stories.

Furthermore, the department seeks to set higher entry requirements to its institutions based on the type of medium involved (books, film makers, etc.). Again, those distinctions are unconstitutional, and in any case modern media technology has blurred the lines between media in so many ways that the categories are no longer meaningful. The format in which their news stories are disseminated is the business of journalists and not of the Department of Corrections.

Finally, access to public records is governed by law specifically devoted to that subject. The power to make determinations on what is or is not a public record is not vested in the director of the department, and to the extent that that power is bestowed on the director in these regulations, these amendments violate the will of the Legislature. For all the aforementioned reasons, these regulations are illegal; they are violations of the Constitution. They should be rejected outright and in toto.

Sincerely,

Tim Graham, President
Northern California Chapter
California Society of Professional Journalists

--------------------

Published: Thu, Sep 9, 1999
Vacaville Reporter

Prison building a failing 'quick fix'

Reporter Editor:
According to Lance Corcoran, vice president of the California Correctional Peace Officers Association, California "can't build its way out" of the overcrowding problem. And yet we have just approved $5 million to do what already has been declared futile.

The prison inmate code of ethics provides advanced training in the art of antisocial mentality and criminal behavior. The correctional officer code of ethics renders to inmates a message of worthlessness in actions that are sometimes cruel, always dehumanizing.

The system represents injustice, inequity and ultimate hopelessness. We lock them up thinking the problem will go away. Then we release them back into society more damaged, more self-defeated and self-loathing, unprepared for re-entry, unsupported by the community, unskilled, uneducated, drug-addicted, criminally trained and isolated from family and friends.

Society's popular lock-em-up mentality represents nothing more than a "quick fix" for today that reaps increasing devastation for tomorrow.

Decarceration must begin with the nonviolent offenders and with those who have served their time successfully (SB 128). Restorative justice principles offer alternatives that protect our communities, allowing healing from the ravaging effects of crime.

Rose Mary

http://www.thereporter.com/Current/plet.html

Published: Thu, Sep 16, 1999

Why no unfeigned prison policy?

Reporter Editor:

Gov. Gray Davis just loves to continue the secrecy that surrounds what goes on inside California's prisons. This has to be so or he would not have vetoed the bill which the Legislature passed allowing media access once again inside the prisons.

What is he afraid the media will find? Abuse, neglect, rapes, lack of medical care, violence because of Draconian laws, such as "Three Strikes" law, which allow no hope for a person?

Taxpayers need to know what goes on inside those hellholes called prisons. For what goes on inside will affect what happens in our communities when the men and women imprisoned there are released.

Violence begets violence. Abuse begets abuse. The governor needs to wake up.

Linda C

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www.sacbee.com/voices/news/voices03_19990930.html

Dear Sac Bee Editor,
The prison guards do need to be monitored to ensure reforms. I was very disappointed in Gov. Davis when he vetoed the bill to let the media have interviews with inmates. I was also disappointed that the legislature did not override the veto. The votes were there.

Hopefully the Inspector General will monitor the prisons well and maybe next year Davis will sign a bill to let the media in the prisons.

Susan
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