It likely will come as no surprise that I favor the release of court documents related to the seizure of materials from former President Donald Trump’s Palm Beach mansion.
Journalists typically fight for government transparency and that includes open courts. Oregon has a particularly strong protection for open courts in its constitution, which says “no court shall be secret.” That provision has led to numerous decisions favoring the release of records filed in Oregon courts.
In the Trump matter, a judge allowed release of some documents, including property receipts that showed the FBI took 11 sets of classified documents from the Mar-a-Lago estate. The judge also unsealed the search warrant, which revealed that agents were investigating potential crimes under three federal laws.
Both of these disclosures, which Trump said he supported, provided important information for the public about the investigation and its aims. Typically, such materials would remain secret as an investigation is underway.
“The public’s clear and powerful interest in understanding what occurred under these circumstances weighs heavily in favor of unsealing,” the U.S. Department of Justice acknowledged in its court motion.
But other significant material still remains secret.
The Associated Press and several other news organizations have gone to court to try to unseal the underlying affidavit that supported the search warrant. In such an affidavit, investigators lay out, under oath, the findings that led them to request the search.
The Justice Department is fighting release (which Trump said he favors in the interest of transparency), arguing the information is “highly sensitive” and disclosure to the public would “cause significant and irreparable damage to this ongoing criminal investigation.” The judge signaled last week he was inclined to release the affidavit with redactions.
This tension between journalists fighting for the public’s right to know and investigators who are concerned about the integrity of an investigation is common. It plays out routinely in Portland and Oregon for journalists with The Oregonian/OregonLive or other news organizations.
In some cases it involves physical access to newsworthy events.
This month, three dozen news organizations signed a letter sent by the Reporters Committee for the Freedom of the Press to the city of Medford, urging the city to dismiss a criminal charge against reporter April Ehrlich, who was arrested while reporting on a homeless encampment sweep in a public park.
The “prosecution for routine newsgathering—documenting the clearing of an encampment in Hawthorne Park—threatens to have a chilling effect on all Oregon journalists who cover housing policy, the management of public land, and issues affecting individuals who live outdoors on public property,” the letter said.
Erhlich was working at the time as a reporter for Jefferson Public Radio.
The Reporters Committee is also fighting for the public’s right to know in a public records case in The Dalles. The Oregonian/OregonLive’s reporter Mike Rogoway sought city documents related to Google’s water use and was denied access to them. The city argued they were a “trade secret.”
Rogoway appealed to the county district attorney under Oregon’s public records law, and the district attorney agreed with the newsroom and ordered the city to release the records. Instead, the city decided to sue The Oregonian/OregonLive to fight disclosure.
The Reporters Committee is representing our newsroom in the lawsuit.
We also routinely press for information related to Portland homicides. We’ve had a record number of violent deaths in Portland last year and are on a similar pace this year.
The Portland Police Bureau releases limited information – in some cases, not even an acknowledgment the homicide occurred or basic information such as the name of the victim.
Reporters normally would find more information in the probable cause affidavit, a sworn statement filed in court to support an arrest warrant. But often, the prosecutor’s office has requested those affidavits be sealed from public view.
Their reasons are similar to the Justice Department’s arguments against release of the affidavit in the Trump case: the fear witnesses might be intimidated or that details would compromise the integrity of the investigation if they became public.
A classic example of such a detail would be “something only the killer would know.”
Reporters definitely want to inform the public about significant matters, such as local homicide. They also have, very rarely, withheld specific details that have insignificant news value but could jeopardize the investigation, such as the exact position of the body.
The tension between journalists, law enforcement and the courts will exist as long as we’re all fulfilling our independent roles. To be sure, we don’t go out of our way to make police investigators’ jobs even harder, though some of them might be surprised to hear that.
Note: The application window is now open for nonprofits in Oregon and Southwest Washington to apply for The Oregonian/OregonLive’s 2022 Season of Sharing campaign.
The annual campaign sends reader contributions to nonprofit organizations that provide social and human services locally. The board of Oregonian Publishing Co. Public Benefits, a 501(c)(3) nonprofit, choose several nonprofits each year to profile in The Oregonian and on OregonLive.
Longtime newsroom editor Grant Butler is overseeing the 2022 fundraising campaign. You can reach him at [email protected] with questions. Nonprofits can apply here for consideration. The deadline to apply is 5 p.m. Sept. 9.
