FREE PRESS -- Two new items have emerged in the last 24 hours concerning the secret recording of journalists' interview calls by a former press spokesman for Attorney General Jerry Brown: the actual recorded call transcripts and a formal investigative finding by a top official in the criminal division of Brown's office concluding that, since press interviews are "on the record," no law prohibits the government from recording them unannounced.

One transcript posted by the nonprofit, nonpartisan Consumer Watchdog involves the attempt by
the Attorney General's office to alter a San Francisco Chronicle story
reporting how the Attorney General had rewritten its description of an
insurance company ballot measure to make it appear as if the initiative
would only lower premiums. Transcripts from that interview and other
surreptitious recordings made by the Attorney General's staff were
provided last night by that office in response to
Public Records Act requests by Consumer
Watchdog and several news agencies.

The transcripts can be downloaded from: http://www.consumerwatchdog.org/resources/AGTapeRecordingsDisclosure.pdf or viewed directly online at: http://www.scribd.com/doc/22373468/AGTapeRecordingsDisclosure The internal investigation into the recordings can be downloaded from: http://www.consumerwatchdog.org/resources/AGTapeRecordingsInternalInvestigation.pdf

Consumer Watchdog sought the documents after the Attorney
General's office admitted that its spokesman (who has since resigned)
taped conversations between San Francisco Chronicle reporter Carla
Marinucci and high level Department lawyers last week in an effort to
kill or alter the Mercury Insurance story. Also included in the public
record is a series of e-mail exchanges related to the call with Ms.
Marinucci in which the AG's spokesman pressed a San Francisco Chronicle
editor to include a statement from the Attorney General's deputy "right
up front" to rebut Consumer Watchdog's criticism of the AG's decision
to change the Title and Summary of a ballot measure sponsored by a
Brown donor, Mercury Insurance Company.

Some of the other recorded conversations were with the Attorney General directly, including:

  • an
    interview with Los Angeles Times reporter Shane Goldmacher, who was
    interviewing Brown about the large contributions he has solicited on
    behalf of two charities in Oakland from donors with significant
    interest before the state and Attorney General;
  • an interview
    with AP reporter Bob Jablon about questions related to the AG's
    decision to pursue a case related to the death of Anna Nicole Smith;
  • an
    interview with AP reporter Beth Fouhy in which AG Brown discusses
    running for Governor, including how he distinguishes himself from
    Hilary Clinton and other politicians; and
  • an interview with AP reporter Don Thompson related to California budget cuts.

Consumer
Watchdog noted that several of the recorded calls involved interviews
that addressed sensitive issues for which the Attorney General faced
some criticism.
Consumer Watchdog understands that the
Attorney General's office released the documents after the
tape-recorded journalists were informed of the recordings and each
released the Department of Justice to reveal the transcripts.

The investigative report by Dane R. Gillette, chief assistant attorney general in the Criminal Division of Brown's Office, concludes its discussion of the anti-taping statute, Penal Code Section 632:

In light of the statutory definitions it is clear that recording press conferences and other public appearances by the Attorney General is not prohibited. With respect to the recorded telephone conversations with reporters, the issue is whether an on-the-record interview with a DOJ spokesman, the Attorney General, or other DOJ personnel can be said to constitute circumstances "showing that a party desires it is not to be overheard or recorded," as might be the case when one of the parties indicates that the conversation if "off the record" or "only on background." Nothing in the legislative history of Section 632 suggests that conversations of the type recorded by (the former press spokesman) were intended to be covered by the statute.  Indeed, the very purpose of an "on the record" interview is to provide the reporter with statements that can be later used in the public media.  An "on the record" interview with a news reporter is the antithesis of a "confidential communication."

It's not that simple. "On the record" in a press conference and "on the record" in an individual interview with a press spokesman are quite two different things.  In the first, everyone in the room is aware that anything said is being either overheard or recorded by everyone in the room.  Recording is obvious and inescapable—it's part of the arrangement.  In the second, while "on the record" means that the press spokesman will be directly quoted, identified and held to what he or she is saying, electronic recording of the conversation by anyone is not understood as an integral part of the process.

For one thing, the interviewing reporter not only does not expect his competing colleagues to hear his questions and the answers given before he has a chance to write and publish his account—he would regard that kind of leak to rival journalists by the interview subject a betrayal of his enterprise and his right to break the story.  So for the journalist, his own questions are not fully "on the record" at the time of utterance in the same sense as the answers given by the government official.

If
anything, the government public information officer, appointed and paid
with public funds precisely to accommodate press inquiries on the
public's behalf, has an arguably higher duty not to make secret
recordings of the journalist's questions than does the private sector
interview subject.

As the California Supreme Court observed in discussing an undercover journalist's covert tape recording of a fellow worker whose words could have been overheard by others in an office setting, 

There are degrees and nuances to societal recognition of our expectations of privacy: the facts that the privacy one expects in a given setting is not complete or absolute does not render the expectation unreasonable as a matter of law. Sanders v. ABC, 20 Cal.4th 907 (1999).

One can understand Mr. Gillette's interest in exonerating the Attorney General's office here, but blurring such distinctions could lead journalists, government officials and private interview subjects into some real confusion and legal jeopardy.  Instead of settling for a self-serving conclusion summing up a nominally criminal investigation, the Attorney General's much more deliberate Opinion Unit should be asked for a published opinion answering the following question:

Does Penal Code Section 632 prohibit the tape recording of a journalist's "on the record" interview with a news source—by either party to the conversation—without the awareness of the other party?