By: Jim Rosenberg
About 90 minutes after police seized a DVD containing more than 100 photos from the Anchorage Daily News last week during a search of the newspaper, the same judge who signed the warrant sent the officers back to return the disc.
The police already had gone to a local television station to obtain video footage when the judge, after hearing from a Daily News attorney, confirmed that the search was not permissible, according to Editor Patrick Dougherty. Specifically, it violated provisions of the Privacy Protection Act, a federal law that allows newsroom searches only under certain unusual circumstances.
John McKay, the Daily News’ local counsel, explained that the law permits searches when a news organization has failed to comply with a valid subpoena and where there is probable cause a person may be harmed, evidence may be destroyed, or a staffer was involved in a crime related to the sought-after material – but that the crime may not be the possession of the material. (National security and child pornography are exceptions to that last exception.)
The police sought unpublished photos from the scene of a shooting several nights earlier. “I was surprised by it,” said Dougherty. “Faced with a police officer with a warrant, there isn’t debating opportunity.”
Dougherty said that “within 40 minutes I called our attorney,” who told the editor the warrant was illegal and that he would call and inform District Court Judge Jack Smith.
Prosecutors may subpoena newsroom material, but a newspaper may at least challenge a subpoena. Ordinarily at a local level, charges would be filed or a grand jury convened before a subpoena is issued.
“We fully anticipated” a subpoena, Dougherty told E&P, calling it “fine… sort of a normal day at the office.”
Through an assistant, Judge Smith declined to talk about the search warrant and the subpoena process for a newsroom search.
“When the [unexamined] DVD was returned, I offered to give the officers a DVD with the photos that were published.” Dougherty said. The police declined the offer. On Friday, however, Dougherty made the same offer to the outgoing and incoming police chiefs. “That was the first time they learned that I had offered” the disc, he said, attributing it to “less-than-ideal” communications within the department at the time.
This time, he added, “I offered, and they accepted.”
Generally attributing the search to ignorance of the law, Dougherty remarked: “I think their intentions were relatively benign. But it’s a big threshold they crossed.” He said both the new and former police chiefs were “very apologetic” and acknowledged not knowing the law.
“Usually,” said Dougherty, “they’re on the other side of that conversation.”
Though the law permits damages of not less than $1,000 and recovery of attorney’s fees and litigation costs, Dougherty seemed more cooperative and combative, persuaded that “all the constructive results” possible under the circumstances had been achieved.
McKay similarly assessed the outcome, saying city officials were “very cooperative throughout the whole thing.” They agreed to train police officers and ask the presiding judge to see that other local judges are aware of the applicable law. Dougherty and McKay said they were told to expect no more visits from the police, but that a subpoena for documents is possible I the future if and when charges are filed.
Late this afternoon, McKay reported that city officials “have agreed to pay attorney’s fees, and we’re agreeing that we won’t pursue any civil action arising from the search.”