When can Oregon governing bodies exclude reporters from executive sessions of public meetings, and what counts as a 'representative of the news media'?

Questions left unanswered by examination of the text alone are: (1) whether a person
must demonstrate a special relation to a particular news medium to qualify as a “representative”;
- (2) if so, what that relationship must be; (3) whether and what “public platforms” qualify as
“news media” and, (4) how often a medium must publish or broadcast for what it reports to be
considered “recent events” or “new information?” —

c. Context

Turning to the context, the phrase is used in ORS 192.660, the executive session law.
The purpose of that law is to permit governing bodies to discuss certain matters outside of public
view. It reflects the legislature’s judgment that the public is better served by confidentiality than
transparency in those circumstances. Consistent with that judgment, ORS 192.660(4) permits
governing bodies to require news media who attend executive sessions not to disclose sensitive
information to the public. At the same time, the function of the news media is to disseminate
news to the public. ORS 192.660(4) permits media representatives to attend executive sessions
_ and report non-confidential information to the public while keeping sensitive information
confidential. This statutory context does not shed much light on who the legislature intended
“representatives of the news media” to include.” On the other hand, the history of media
technology advances prior to 1973 provide compelling contextual reasons to think that the
legislature would have anticipated that new mediums for disseminating news could emerge.
There is nothing to suggest that the legislature intended to preclude individuals working in as-
yet-undeveloped mediums from qualifying as representatives of the media for purposes of
executive session attendance.

d. Legislative history

ORS 192.660(4) was a provision of the original Public Meetings Law, which was enacted
in 1973 as Senate Bill 15 (1973). Or Laws 1973, ch 172, § 6. As introduced, Senate Bill 15 did
not require governing bodies to allow news media to attend executive sessions. The first
suggestion that it should permit such attendance arose in a public hearing before the Joint Special
Committee on Professional Responsibility. Co-chair Ingalls mentioned that “newspapers” had
- been attending school board meetings and labor negotiations and asked if the bill would close
those meetings. He also asked whether school boards or teachers could vote to close those
meetings to “the press.” Charles Habernigg, representing Common Cause, responded that
although the public would not have a right to attend labor negotiations, if a “member of the
press” had a previous understanding, it should continue. Minutes, Joint Special Committee on
Professional Responsibility (SB 15), February 26, 1973 at 6. Myer Avedovech, Attorney for the
City of Milwaukie, testified that the city council often held “pre-meetings” before its public

meetings. Representative Paulus asked if “the press” was invited to those meetings. He replied
that they were invited but most chose not to attend; usually one reporter came. Jd. at 9.

In a March 5" meeting of the committee, two other witnesses testified about instances
where “the press” had been allowed to attend private meetings. A Woodburn Common Council
member, Harold Reaume, testified that the city regularly held non-public pre-meetings that “the
press” was welcome to attend. He opined that when the press did not attend “undesirable things”
happened. He said that pre-meetings were used to obtain agreement before the public meeting
and that statements made in the pre-meeting were not repeated in the public meeting, hence
citizens had no way of knowing their public officials’ opinions on the issues. Minutes, Joint
Special Committee on Professional Responsibility (SB 15), March 5, 1973 at 2.

Bill Keller, an education reporter for The Oregonian, testified about an instance where
“the press” had been allowed to attend a closed school board meeting but had been asked not to
disclose any information except the board’s general direction. He testified that although there
were times that school board business should be conducted privately, the privilege could be
abused. He suggested that when a school board met privately, the press should be allowed to
attend “as observers.” In response to a question from Co-chair Ingalls, he testified that he felt no
obligation to obey a prohibition on reporting certain information and would report matters he felt
vital to the public unless given good reason not to. Jd. at 3-4.

Representatives from several local newspapers and from the Oregon Newspapers
Publishers Association (ONPA) testified at a hearing on March 12". Wally Cowen, a local
newspaper publisher and representative of the ONPA, testified that “the press” and the public
were the same thing and that the press was a vehicle for information to the public. He felt that
Senate Bill 15 did not afford any privilege to the press, but assured the public access, through the
media, to the workings of the bureaucracy. Cowen testified that the ONPA’s position was that
all meetings should be open to the public. Minutes, Joint Special Committee on Professional
Responsibility (SB 15), March 12, 1973 at 1-2. Senator Fadeley asked whether he would support
’ executive sessions if the press was allowed to attend but the public was not. Cowen answered
that if the press were entitled to attend, then everyone should be invited. Jd. at 2.

Phil Bladine, also a newspaper publisher and representative of the ONPA, testified
against allowing any executive sessions except in personnel cases where he suggested that the
press should be allowed to attend but “use good judgment in relating things to the public.” He
stressed that it was a “newspaperman’s responsibility” to see that the public get to meetings. He
said that in sensitive areas concerning individuals the press “has a confidence with that
individual and it is seldom broken.” Chair Ripper asked about the problem of an “unfriendly
press” and what should be done when it distorted facts. Bladine responded that everyone should
not be penalized for the actions of a few. Jd. at 3. Hal Schlitz, a publisher of a local paper,
testified that relations between the paper and the public bodies had been very good. Jd. at 4.

Following that testimony, the bill was amended to permit — but not require -

representatives of the news media to attend executive sessions. It specified that they could attend
under such conditions governing the disclosure of information “as may now exist” and may be

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agreed to by the governing body and the representatives of the news media. Amendments to
Second Amended Draft SB 15, § 6(3) (1973). The committee considered those amendments at a
March 19" work session. An unidentified legislator suggested that the section be deleted.
Senator Heard responded that the section was in the bill because of the testimony heard by the
committee that some members of the press had good relations with governing bodies and that if
the section was not included, this relationship would change. Co-chair Ingalls said that without
the section the press could be excluded from meetings where they were presently included.
Minutes, Joint Special Committee on Professional Responsibility (SB 15), March 19, 1973 at 10.
Senator Fadeley suggested making the requirement mandatory rather than permissive. Co-chair
Ingalls suggested deleting the “as may now exist” language. Both suggestions were adopted. Jd.

At an April 7th meeting, Senator Carson moved to delete the requirement, which he
considered potentially “dangerous.” Minutes, Joint Special Committee on Professional
Responsibility (SB 15), April 7, 1973 at 7. He stated that the press in Lane County had an
excellent working relationship with governing bodies that should not be disturbed by permitting
the press to be the only “public” invited to watch the governing body. He argued that if the
meeting concerned something the public should know, the public should be allowed to attend
and a requirement that allowed only “the press” to watch the governing body might endanger
good relations with governing bodies, because who, he asked, would watch the press? He also
observed that allowing the press to attend and to operate under a shield law would put them in a
very interesting position. Jd.

Co-chair Ingalls replied that the press was allowed to attend executive sessions not to report
the meeting but to use the results of the meeting as background information for future reporting. Jd.
He asked Roger Williams, a representative of the ONPA, for his thoughts. Williams testified that
“the press” did not want the privilege of attendance; it wanted to be the vehicle for reporting. Id. at
7-8. Senator Carson’s motion to delete the requirement failed. Jd. at 8.

Subsequent discussions and proposed amendments concerned whether the requirement
should be mandatory or permissive and whether the governing body and representative were
required to agree to nondisclosure. For example, on May 15, 1973, Senator Carson expressed
concern that the bill mandated that parties agree to what could not be disclosed and the effect
would be to have “the news media (rather than the legislature) determining what is or is not an
executive session.” He recommended remedying that by making both press attendance and
nondisclosure agreements discretionary. Minutes, Joint Special Committee on Professional
Responsibility (SB 15), May 15, 1973 at 1.

Senator Heard agreed and said that he felt the Senate members on the floor would feel the
same way. Id. Co-chair Ingalls said that the “question was a matter of honor” and “the news
media would not print information until they received background information.” Jd. Senator
Heard suggested that the news media be excused from the meeting if agreement could not be
reached about what could be reported. Senator Carson agreed. Co-chair Ingalls felt that the bill
already stated that. Jd. The committee ultimately decided to amend the bill to provide that -

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representatives of the news media “shall” be allowed to attend “under such conditions governing
the disclosure of information as may be agreed to by the governing body and the representatives
of the news media prior to such executive session.” Or Laws 1973, ch 172, § 6(4). .

In sum, legislators and lay witnesses alike referred to “the press” when discussing the
requirement to permit “representatives of the news media” to attend executive session. They
appeared to consider “representatives of the news media” to be synonymous with “the press.”
Pertinent definitions of the “press” are “newspapers, periodicals, and often radio and television
news broadcasting regarded as a group * * * news reporters, publishers, and broadcasters as a
group.” WEBSTER’S at 1794. Those definitions are consistent with “representatives of the news
media” in the sense of representatives of newspapers, news periodicals and radio and television
news broadcasts. Additionally, representatives of state and local newspapers, newspaper
publishing associations and broadcasting associations were the ones who testified at the Public
Meetings Law hearings generally and specifically about having been invited to attend closed

meetings in the past.

The history also reveals that the purposes of the requirement were to: (1) require
governing bodies to continue to allow news-gathering representatives who had been invited to
closed meetings before enactment of the Public Meetings Law to attend executive sessions after
enactment of the Public Meetings Law; (2) to foster good relations with news media
organizations; (3) to provide a mechanism to ensure that governing bodies limited executive
sessions to permissible purposes; and, (4) to permit the media to gain valuable background
information for future reporting. At the same time, the legislature was concerned about the press
not disclosing confidential information.

It is evident from the history that the legislature had in mind the news-gathering
representatives of state and local newspapers who had been invited to attend closed meetings
before enactment of the Public Meetings Law. Permitting their attendance served all of the
purposes identified for the requirement. That limited and known group of trained professional
journalists also would have been accountable for disclosing conflicts, reporting fairly, and
protecting legitimately confidential information.

On the other hand, the legislature used broad and ambiguous language in enacting the
requirement that potentially includes many other types of media representatives. The history
contains no discussion about whether other types of media representatives should be allowed to
attend executive sessions. And the 1973 Legislative Assembly could not have foreseen
subsequent technological changes that would enable the rise of a large class of “citizen

journalists.”

3. Application of Interpretative Methodology to the Commission’s
   Questions

Having set out the framework for interpreting these provisions, and having identified the
relevant text, context and legislative history, we now apply those tools to the commission’s
various questions about the phrase “representatives of the news media.”

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a. “Representatives” means news gatherers

We conclude that “representatives” in the phrase “representatives of the news media” is
intended to encompass “news-gathering representatives.” This determination is based on the
~ legislative history, which strongly suggests that news gatherers were the people the legislature
’ had in mind. The history establishes that news-gathering representatives would have been the
ones invited to closed meetings before enactment of the Public Meetings Law, which is the
practice that the legislature sought to codify. They are also the ones who would report non-
confidential information and gather information for future reporting.

b. “News media” means “institutionalized” news media

We next address whether the requirement is limited to “institutionalized media” as our

' earlier opinions conclude, and, if so, what that means. “Institutional media” is a phrase often
employed by the federal courts as a synonym for “the media” or “the press.” See e.g.,

Austin y. Michigan Chamber of Commerce, 494 US 652, 668, 110 S Ct 1391, 108 L Ed 2d 652
(1990) (stating that the “media” exception is meant to prevent hindrance to the “institutional
press.”); Dun & Bradstreet, Inc. v. Greenmoss Building Inc., 472 US 749, 784, 105 S Ct 2939,
86 L Ed2d 593 (1985) (distinguishing between “institutional media” and “other individuals or
organizations engaged in the same activities”). “Institutional media” appears to be used as a
term to distinguish between “media” and individual speakers engaged in speech. Jd. at 784 &n
10 (noting the distinction between “institutional media” and other individual speakers and
organizations as the distinction between “media” and “nonmedia.”); see also 39 Op Atty Gen at
601 (concluding that “news media” means “institutionalized news media” because it applies to

“representatives.”).

As discussed, a “representative” represents others or another, rather than appearing
personally. The statute’s use of the term “representatives” is consistent with our longstanding
interpretation that “news media” means institutional news media. An “institution” is commonly
understood to mean an established society, corporation or organization. Hence, “institutional”
news media” means an established news media organization.

Federal courts have not attempted to define “institutional media” with any precision.
Instead, they consistently have concluded that it is not possible, for purposes of First Amendment
analysis, to distinguish between the “institutional media” and other speakers. An Oregon Federal
District Court, for instance, stated that:

The protections of the First Amendment do not turn on whether the defendant was
a trained journalist, formally affiliated with traditional news entities, engaged in
conflict-of-interest disclosure, went beyond just assembling others writings, or
tried to get both sides of a story.

Obsidian Finance Group v. Cox. No. 12-35319 at 7 (January 17, 2014).

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But ORS 192.660(4) is not intended to ensure a First Amendment right. The United
States Supreme Court has opined that the press has no constitutional right to access information
not available to the public or to attend executive sessions. See Branzburg v. Hayes, 408 US 665,
684-85, 92 S Ct 2646, 33 L Ed 2d 626 (1972) (observing that the First Amendment does not
guarantee the press a constitutional right of special access to information not available to the
public generally and that the press is regularly excluded from executive sessions); see also,
Trimble v. Johnson, 173 F Supp 651 (D DC 1959) (press has no constitutional right to attend
meetings closed to the public). In fact, we are not aware of any other jurisdiction that permits
representatives of the news media to attend executive sessions.

In this context, the legislature appears to have intended to distinguish between individuals
and media entities and to permit only the latter to attend executive sessions. Without that
distinction executive sessions essentially would be open to the public. Accordingly, we conclude
that “representatives of the news media” for purposes of ORS 192.660(4) includes news-gathering
representatives who have a formal affiliation with an institutional news medium. A news media
entity is institutional if it is formally organized for the purpose of gathering and disseminating
news. As discussed below, however, the proliferation of technologies for disseminating
information can make it difficult to identify which entities are institutional news media.

c. Specialty publications and broadcasts may qualify to attend

We conclude that media that cover specific subject areas for a special audience rather than
a general audience also may qualify as news media if they regularly publish or broadcast the news.
_ In previous guidance we have suggested that representatives of such media entities could only
attend executive sessions if the entities ordinarily report on the activities of the governing body.
Occasionally, we have also suggested that the specialty media must also ordinarily cover matters
that are the subject of a particular executive session. Under that approach, a representative of a
periodical containing only hunting and fishing news could attend the executive sessions of the
Fish and Wildlife Commission but not of the Board of Chiropractic Examiners.

We see nothing in the text of the statute that requires or even suggests this result. Nor
does the legislative history provide any reason to think that the legislature intended a rule under
which news-gatherers would be admitted to some executive sessions but not to others. The text
unambiguously permits representatives of the news media to attend executive sessions.
Presumably the legislature intended that those representatives would select for themselves which
executive sessions they were professionally interested in attending. Although that rule might
marginally increase the likelihood of individuals attending executive sessions for reasons other
than the reasons the legislature had in mind, we do not see any reason to expect that
representatives of specialty media would be more likely to do so than representatives of general
news media. We consequently conclude that news gathering representatives of specialty media
entities are permitted to attend executive sessions, whether or not the public body generally
exercises authority relevant to their specialty area.

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d. Use of technology to distribute news

We next address whether the requirement applies to mediums of communication like the
internet. We suggest in the Manual that the requirement might apply, depending on the
particular facts to “bloggers and others using these technologies.””» MANUAL-at 172. When the
1973 Legislative Assembly enacted the language in ORS 192.660(4) technologies like the
internet, cable and satellite broadcasting either did not exist or were not commonly used to
disseminate news.

But there is no indication that the 1973 Legislative Assembly intended to foreclose
mediums that did not yet exist from qualifying as “news media.” On the contrary, the Oregon
Supreme Court has declared that there is a “familiar legislative penchant for using general terms
like a bucket, allowing various concepts to fall in (or out) with the passage of time. * * * * *,
[T]he legislature need not constantly update each new addition to * * * [a] class—{if] the general
terms are broad and flexible enough to adjust to changing circumstances.” Cook vy. Workers’
Comp. Dept.,.306 Or 134, 142, 758 P2d 854 (1988). -

In this particular context, that “familiar legislative penchant” is consistent with the reality
that legislators in 1973 probably did not regard “news media” as a fixed concept. Television
news, for example, had started to become prominent only in the late 1940s — meaning that it was
approximately 25 years old when the Public Meetings Law was adopted. The use of the medium
for news distribution purposes had continued in the intervening years. Smith ed., Television: An
International History (Oxford University Press 1995), 122-133 (tracing the development of
television news from the late 1940s through the 1970s). Indeed, /ocal television news came to
prominence in the United States “[s]ometime around 1970[.]” Jd at 131. That shift presumably
would have been familiar to legislators in 1973. And, given that the reporters most likely to
attend executive sessions would be local reporters, the development would presumably have
informed legislators’ understanding about the nature of the “news media” in this context. Radio
news, meanwhile, was approximately fifty years old, having developed since the 1920s and
1930s. Gorman and MacLean, Media and Society in the Twentieth Century (Blackwell 2003) at
57-58 (explaining the development of radio as a news medium starting in these decades). Both
_ of these innovations represented significant advancement from the distribution of printed news
following the introduction of the mobile printing press to Europe in the fifteenth century. There
is nothing in the text, context or legislative history of the Public Meetings Law that suggests that,
notwithstanding this history of innovation and change, legislators intended to adopt a definition
of “news media” that would tie that concept to specific formats prevalent in 1973. We conclude
that the term “news media” is broad and flexible enough to encompass subsequent technologies

for delivering the news.

As aresult, whether an online publication or broadcast qualifies depends on the same
criterion for existing mediums: the entity must be institutional. “Blogs,” for example, come in
two general varieties. The first is “an online personal journal with reflections, comments and
often hyperlinks, videos, and photos provided by the writer.” www.merriam-webster.com/ J
The second is “a regular feature appearing as part of an online publication that typically relates to
a particular topic and consists of articles and personal commentary by one or more authors|.]”

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Id. The first type of “blogger” is an individual rather than a representative of a news media
organization. But the second type of blogger might qualify as a representative of the news media
depending on whether the particular facts demonstrated that the blogger represented an
institutional news medium. Indications that an entity is institutional might include its business
structure, the nature of its overall operations, regular public dissemination of news, and similar
factors that demonstrate that it is formally organized for the purpose of gathering and
disseminating news. For instance, an individual who regularly posts for websites maintained by
traditional media companies, such as nytimes.com or cnn.com, would constitute a

“representative of the news media” within the meaning of ORS 192.660(4). Short of an
affiliation with a traditional media outlet, indications that a blogger represents institutionalized
media might include the existence of staff (rather than a single individual), a formal business
structure within which the blog operates and regular publication.

B. Terms used in ORS 192.660(5)

We now turn to the meaning of terms used in ORS 192.660(5). A governing body may
convene an executive session to consult with counsel about current litigation or litigation likely
to be filed. ORS 192.660(2)(h). ORS192.660(5) requires governing bodies to “bar any member
of the news media from attending the executive session if the member of the news media is a
party to the litigation or is an employee, agent or contractor of a news media organization that is
a party to the litigation.” The commission asks us to clarify the meaning of the terms used in that

provision relating to the news media.
1. Member of the news media

The relevant definition of “member” is “one of the individuals composing a society,
community, association or other group.” WEBSTER’S at 1408. “Member” appears at first to be a
potentially broader term than “representative.” However, as ORS 192.660(5) is implicated only if
a person is a “representative of the news media” otherwise entitled to attend executive sessions, in
practice a “member of the news media” may be treated as synonymous with a “representative of
the news media.” The obvious purpose of this language is to bar individuals from using
ORS 192.660(4) to gain access to confidential attorney-client discussions about litigation to which
they are parties whether or not the media organization that they represent is a party. ,

2. Employee, agent or contractor of a news media organization

The prohibition on admitting “an employee, agent, or contractor of a news media
organization that is a party to the litigation” precludes a news media organization from gaining
access through their representative to confidential discussions about litigation to which the
organization is a party. An “employee” is “one employed by another usually in a position below
the executive level and usually for wages.” Jd. at 743. The pertinent definition of “employ” in
this context is “to provide with a job that pays wages or salary or with a means of earning a
living.” Jd. An “employee of a news media organization” would mean a person who has a job
with a news media organization that pays the person wages or a salary. The pertinent definition
of “contractor” is “one that contracts: a party to a bargain: one that formally undertakes to do

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something for another * * * one that performs work according to a contractual agreement.” Jd. at
495. A person who contracts with a news media organization to cover stories or to report on
matters specified in a contract would be a contractor of a news media organization. An “agent”
is a person “who is authorized to act for or in the place of another.” Jd. at 40. “Agent” is a broad
term and may include representatives who are not “employees” or “contractors.” The legislature
likely specified all three of these terms to ensure that everyone who might qualify as a
“representative of the news media” for purposes of gaining admittance to a meeting where the
governing body discussed litigation with its counsel would be barred from attending if the news
media organization that they represent is a party to the litigation.

II. Question 2 - Permissible Grounds to Exclude News Media Representatives

The commission next asks whether governing bodies may exclude representatives of the
news media from executive sessions for any reason other than those identified in ORS 192.660(4)
(exclusion from deliberations with labor negotiators and meetings to consider confidential student
records or expulsion) and ORS 192.660(5)(exclusion for parties to litigation being discussed with

counsel).

A. Limit attendance to one representative from each news medium

The Manual states:

[a] governing body probably would be able to limit attendance to one
representative of each medium wishing to be represented. The body should be
able reasonably to limit total attendance to a number that would not interfere with

deliberations.

MANUAL at J-5. Although this is a sensible policy and would not thwart the apparent purposes of
the requirement, no statutory language supports it. The statute requires governing bodies to
admit “representatives of the news media.” That requires governing bodies to admit any person
who qualifies as a representative of a news medium and who is not subject to exclusion under

ORS 192.660.

An alternative interpretation would require us to insert language into the statute to specify
that governing bodies are required to admit “one” representative from each medium. A
governing body could request that a news medium send only one representative, but, in the event
that the request is ignored, the governing body should admit representatives who ask to attend.

B. Representatives with a personal interest in the matter discussed

The Manual also states that, with the exception of ORS 192.660(5) for parties to litigation
being discussed with counsel, ORS 192.660 does not permit a governing body to exclude
representatives who have a personal interest in the matter being discussed or a close relationship
with someone who does. But we say that “[i]f the attendance of a reporter with a direct personal
interest would frustrate the purpose of the executive session, a governing body could justify

17

barring the individual. A reporter’s mere relationship to someone with a personal stake in the
matter is probably not sufficient justification.” MANUAL at J-6.

On reconsideration, we conclude that a governing body has no authority to exclude a
reporter who has a direct personal interest in the matter being discussed other than as provided in
ORS 192.660(5). ORS 192.660(4) requires governing bodies to permit representatives of the
news media to attend executive sessions. While the scope of the statutory phrase
“representatives of the news media” may be ambiguous, the requirement to admit those who
qualify is not. ORS 192.660(5) states the only ground on which a governing body may exclude a
representative who has a direct personal interest in the matter being discussed. The legislature
could have specified other grounds, but it did not.

C. Exclusion for failure to agree to nondisclosure or for disclosing confidential
information from a prior executive session

The commission next asks whether it is lawful for a governing body to exclude a reporter
who disclosed information from an earlier executive session that the governing body had
specified should not be disclosed. ORS 192.660(4) requires governing bodies to allow media
representatives to attend, but permits the body “to require that specified information be
undisclosed.” “Require” means “to ask for authoritatively or imperatively : claim by right or
authority : insist upon usually with certainty or urgency : DEMAND, EXACT.” WEBSTER’S at
1929. Although the provision does not state that a representative who refuses to agree to
nondisclosure may be excluded from the meeting, one plausible interpretation is that the
authority is necessarily implied from the governing body’s authority to “require” that specified
matters not be disclosed.

But the provision’s amendment history does not support that interpretation. See
Krieger v. Just, 319 Or 328, 336, 876 P3d 754 (1994) (amendment history is context for present
version of statute); Strunk v. Public Employees Ret Bd., 338 Or 145, 189-90, 108 P3d 1058
(2005) (applying presumption that material changes in language create material changes in
meaning). As enacted in 1973, the provision required governing bodies to allow representatives
to attend “under such conditions governing the disclosure of information as may be agreed to by
the governing body and the representatives of the news media prior to executive session.”
Or Laws 1973, ch 172, § 6(4). That language generally was construed to allow governing bodies
to exclude representatives who refused to agree to nondisclosure and to bar attendance at future
sessions for violating an agreement. 38 Op Atty Gen 2122, 2124 (1978). That interpretation was
consistent with the legislative history of the 1973 version of the statute discussed above.

But the 1975 Legislative Assembly amended the statute to remove the language that had
been construed to allow governing bodies to condition attendance on a nondisclosure agreement
and to bar future attendance for violating an agreement. Or Laws 1975, ch 664, § 3. This office
explained that: :

The purpose of this amendment was evidently to make clear that news media
representatives must be allowed to attend executive sessions * * * . At the same

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time, the governing body is given specific authority to require that specified
information be undisclosed. However no specific statutory sanction is provided
for use against a reporter who violates the nondisclosure requirement. The
legislature apparently chose to rely upon the good faith of reporters in complying
with the requirement. ;

38 Op Atty Gen at 2125.

In 1981, we specifically addressed whether a governing body could exclude a reporter
who had disclosed confidential information from an earlier executive session until the reporter
agreed to nondisclosure. Letter Opinion of the Attorney General dated March 30, 1981, to
Representative Ben ‘Kip’ Lombard. We concluded that the statute provided no means of
enforcement and we refused to imply one:

While it is possible that a court will hold that the right to impose an appropriate
sanction is implied, we decline to read into the statute something not placed there
by the legislature. It is quite conceivable that the legislature did intend to rely
only on the good faith of media representatives. We accordingly construe the
statute as it reads, and it reads ‘[r]epresentatives of the news media shall be
allowed to attend executive sessions.’ We conclude that such a representative,
who has arguably or actually violated a valid instruction not to disclose, cannot be
barred from attending a later executive session.

In a 1982 opinion, we were asked whether a governing body had any method to ensure
that the media does not disclose confidential information. In light of that question “we
reconsidered [the 1981 opinion] but f[ound] no basis for modifying it.” 42 Op Atty Gen 392
(1982). We opined that a governing body “has no method of insuring that the media will not
disclose confidential information. It can only request nondisclosure and rely on the good faith
cooperation of the media, or drastically limit its own use of confidential information.” Jd. at 398.
We continue to hold to the conclusion in those opinions.

IV. Question 3 - Commission’s authority to adopt rules to carry out its duties

We are next asked whether the commission has authority to adopt administrative rules to
‘carry out its duty to review and investigate alleged violations of the executive session law. At
the time the commission asked the question, it did not have explicit statutory authority to make
rules. But since the commission asked the question, the Legislative Assembly has amended
ORS 244.290, which gives the commission express rulemaking authority. Section (2) provides:

The commission shall adopt rules necessary to carry out its duties under
ORS 171.725 to 171.785, 171.992, 192.660 and 192.685 and this chapter.

But the legislature simultaneously amended ORS 192.660 to exclude from the commission’s

rulemaking authority the ability to determine by rule who qualifies as a representative of the
news media:

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(10) Notwithstanding ORS 244.290, the Oregon Government Ethics Commission
may not adopt rules that establish what entities are considered representatives of
the news media that are entitled to attend executive sessions under subsection (4)

of this section.

Hence, the legislature has given the commission express authority to adopt rules necessary to
carry out its duties under ORS 192.660 and 192.685. However, the commission may not adopt a
rule that establishes what entities are representative of the news media.

We note that, in addition to its general rulemaking authority, the commission is required
by ORS 244.290 to adopt one particular rule. Specifically, ORS 244.350(2)(a) authorizes the
‘ commission to impose civil penalties of up to $1000 for a violation of ORS 192.660.
ORS 244.290(2) requires the commission to adopt certain rules to implement ORS chapter 244,
subsection (h) of which requires the commission to adopt a rule to “[s]et criteria for determining
the amount of civil penalties that the commission may impose.” ORS 244.350(2) is a provision
of ORS chapter 244 that authorizes the commission to impose civil penalties; therefore it must
adopt a rule setting criteria for determining the amount of those penalties pursuant to
ORS 244.290(2)(h).

Vv. Question 4 — Effect of policies adopted by governing bodies

The next question arises because local governing bodies have begun adopting
comprehensive policies establishing who they will consider to be “representatives of the news
media” and what proof they will require to prove that status. The commission asks about the
legal significance of such policies that: (1) impose screening criteria for determining who
qualifies as a representative of the news media; (2) require preapproval of media credentials;
(3) require advance notice that a representative of the news media will attend; or, (4) exclude
persons for failing to give advance notice of attendance.

The short answer to this question is that governing bodies are bound by the statutory
requirement to admit representatives of the media to executive sessions. To the extent that
enforcing a policy would result in the exclusion of a person statutorily entitled to attend an
executive session, the policy is inconsistent with ORS 192.660(4). In evaluating allegations that
an individual was wrongly excluded from executive session, the commission must assess
compliance with the statute regardless of a governing body’s policies.

Turning to the first particular type of policy the commission is concerned about,
governing bodies may adopt screening criteria for “representatives of the news media” that are
consistent with the meaning intended by the legislature as described in this opinion.

On the other hand, governing bodies are not required to accept a person’s mere assertion
that they qualify as a representative of the news media. Consequently, a policy requiring proof
of media status can be consistent with the Oregon Public Meetings Law. If the application of the
policy results in excluding a person who offers sufficient proof to demonstrate that the person is,
indeed; a representative of the news media, that outcome would be out of compliance with the

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Public Meetings Law. (This seems most likely to arise if a policy requires specific types of
credentials.) Similarly, the statute does not authorize excluding representatives of the news
media for failure to provide their credentials within certain deadlines. The same is true for a
policy requesting media representatives to notify the governing body in advance of their intent to
attend an executive session. While that might be a good idea, and a courtesy, it cannot be made a
requirement.

Finally, as discussed above, the Public Meetings Law does not permit a public body to
exclude media representatives who have disclosed confidential information from prior executive
sessions or who represent news media organizations that have done so. Enforcing a policy to the
- contrary would violate the statute.

CONCLUSION

-The law permits news-gathering representatives of institutional media to attend executive
sessions. The statutory term “news media” is broad and flexible enough to encompass changing
technologies for delivering the news. A governing body may not exclude a representative of the
news media from an executive session except as specifically allowed by ORS 192.660(4) and
(5). The commission generally may adopt rules to carry out its duty to enforce the executive
session law, but it is prohibited by ORS 192.660(10) from adopting a rule that establishes which
entities are considered representatives of the news media. Governing bodies may adopt policies
relating to the admission of media representatives to executive sessions, but those policies cannot
limit the statutory right of representatives of the news media to attend executive sessions. In
evaluating allegations that an individual was wrongly excluded from executive session, the
commission must assess compliance with the statute, regardless of a governing body’s policies:

¢
SY

ELLEN F. ROSENBLUM aN
Attorney General

AEA :nog/DM6782066

” The phrase was enacted by the 1973 Legislative Assembly. Or Laws 1973, ch 172, § 6. The
pertinent definitions in the 1971 version of Webster’s do not differ from the 2002 version so we cite to the

latter for ease of reference.

/ ORS 192.660(5), which excludes from attending certain executive sessions “members of the
news media” and an “employee, agent or contractor of a news media organization” does not shed light on
the meaning of ORS 192.660(4), because the latter was adopted by the 1973 Legislative Assembly and
the former was not adopted until 1997. Or Laws 1997, ch 596, § 1; See Stull v. Hoke, 326 Or 72, 79-80,
948 P2d 722 (1997) (stating that a later-enacted statute is not context for interpreting an earlier statute).

3’ “Blog” is not defined in the 2002 print version of Webster’s, but is defined in the online
version.

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