CRISIS COMMUNICATION – LEGAL GUIDE

This reference guide is designed to increase your awareness of some of the laws that may affect you as a crisis communication professional. Knowledge of the law can prevent you and your agency from facing future legal problems, which can be costly and time consuming. Laws often vary from state to state – know what your state’s laws are. Anytime you are faced with a legal question or issue, you should immediately seek the opinion of your agency’s legal counsel.

SURREPTITIOUS RECORDING

The vast majority of states allow you to record a conversation to which you are a party without informing the other parties you are doing so. Most of these states have copied the federal law. Some expand on the language of the federal law and prohibit all surreptitious recording or filming without the consent of all parties. Some state statutes go even farther, prohibiting unauthorized filming, observing and broadcasting in addition to recording and eavesdropping, and prescribing additional penalties for divulging or using unlawfully acquired information, and for trespassing to acquire it. In most states, the laws allow for civil as well as criminal liability. Most state statutes do permit the recording of speeches and conversations that take place where the parties may reasonably expect to be recorded.

SUNSHINE LAWS

All states have some form of sunshine law on the books. Generally, sunshine laws require formal public notice of government meetings, that all government meetings where formal action is taken or discussed be open to the public, that minutes be maintained and that executive session be permitted under certain circumstances, including:

• Personnel matters, particularly if the agency is firing, hiring, or disciplining an individual employee (in some cases, the employee has the right to request a public hearing);
• Collective bargaining sessions;
• Discussions with agency attorneys regarding pending or imminent litigation involving the agency; and
• Acquisition or sale of public property.

HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT (HIPAA)

• No patient conditions released to the media;
• No e-mail transmission of a patient’s history;
• No sharing of patient health information with colleagues; and
• Protection of medical information as proprietary.

LIBEL AND SLANDER

• Libel and slander are legal claims for false statements of fact about a person that are printed, broadcast, spoken, or otherwise communicated to others. Libel generally refers to statements or visual depictions in written or other permanent form, while slander refers to oral statements and gestures. The term defamation is often used to encompass both libel and slander. It usually occurs from news stories that allege crime, fraud, dishonesty, or immoral or dishonorable conduct. Defense from libel includes:
  • When facts are “provably” true, which is the primary defense;
  • Privilege; certain people under certain circumstances can state, without fear of being sued, material which may be false, malicious, and damaging. The statement was privileged (and thus not public). Judges, legislators, doctors, lawyers, psychologists or individuals (chiefly a spouse) can maintain that privilege. Privilege also includes public officials and public figures while talking about public issues. Public and official proceedings, and the contents of most public records are also privileged;
  • Qualified; courts have held that when applied to the media, privilege is not “absolute.” Protection from libel action may be lost or diluted by how a journalist handles the material. This includes errors in reporting and proof of malice.

SARA TITLE III - RIGHT TO KNOW ACT

Created in response to the Bhopal, India, chemical disaster, this legislation was passed in 1986 with staggered implementation beginning in 1987. It provides for each emergency response plan, material safety data sheet, inventory form, toxic chemical release form, and follow-up emergency notice to be made available to the public upon request. Each local emergency planning committee shall annually publish a notice that the emergency response plan, material safety data sheets and inventory forms have been submitted and are available.

FREEDOM OF INFORMATION ACT (FOIA)

The Freedom of Information Act provides public access to federal files. Agencies have ten working days to respond to FOIA requests and most states have similar laws. Standard fees can apply for search and copying costs. A request for records may be denied if the requested record contains information that falls into one or more of the nine categories listed below:

1. National defense or foreign policy
2. Internal personnel rules and practices
3. Records specifically exempted from disclosure by statute, provided that such statute requires that the matters be withheld from the public or establishes particular criteria for withholding or refers to particular types of matters to be withheld
4. Trade secrets and commercial or financial information that is privileged or confidential
5. Interagency or intra-agency memoranda or letters that would not be available by law to a private party in litigation
6. Personnel, medical, and similar files (including financial files) that constitute a clearly unwarranted invasion of personal privacy
7. Records compiled for law enforcement purposes that interfere with enforcement proceedings, deprive right to a fair trial, are an unwarranted invasion of privacy, disclose the identity of a confidential source, would disclose techniques and procedures for law enforcement to facilitate circumvention of the law, or endanger the life or physical safety of any individual
8. Records for regulation or supervision of financial institutions
9. Information, including maps, concerning the placement of wells
   

FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT (FERPA)

FERPA gives parents access to their child’s education records. Parents have the right to inspect the student's education records maintained by the school. Schools must have written permission from the parent to release any information from a student's education record. However, FERPA allows schools to disclose those records, without consent, to the following parties or under certain conditions, including:

• School officials with legitimate interest
• Other schools to which a student is transferring
• Specified officials for audit or evaluation
• Organizations conducting studies for the school
• To comply with judicial orders or subpoenas
• Appropriate officials in health and safety emergencies
• State and local authorities, within a juvenile justice system

Schools may disclose, without consent, "directory" information, such as a student's name, address, telephone number, date and place of birth, honors and awards, and dates of attendance. However, schools must inform parents of the release of directory information and allow parents a reasonable amount of time to request that the school not disclose directory information.

TEMPORARY FLIGHT RESTRICTIONS (TFR)

Public safety officials may close down airspace for many reasons including :

• Toxic gas leaks or spills, or fumes from flammable agents that could endanger persons or property on the surface or in other aircraft;
• Hijacking incidents that may endanger persons or property on the surface, or airborne aircraft and occupants;
• Aircraft accident/incident sites;
• Aviation or ground resources engaged in wildfire suppression;
• Aircraft relief activities at a disaster;
• Aerial demonstrations or major sporting event; and
• Reasons of national security.

However, exemption to a TFR is granted to an aircraft carrying “properly accredited news media” if a flight plan is filed and the aircraft flies above the altitude used by disaster relief aircraft.

HOMELAND SECURITY ACT- PROTECTION OF CRITICAL INFRASTRUCTURE INFORMATION

Critical infrastructure information (including the identity of the submitting person or entity) that is voluntarily submitted to a covered federal agency for use regarding the security of critical infrastructure and protected systems, analysis, warning, interdependency study, recovery, reconstitution or other informational purpose shall be exempt from disclosure under the Freedom of Information Act.