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To aid St. Paul investigation, KSTP turns over unaired pothole probe footage

Usually, when governments try to get outtakes or notes from media outlets, there’s a fight. The journalists zealously protect their work product — at least the part the public hasn’t seen — so they won’t be seen as snitches. Sources, present and future, tend to notice these things.

But for the first time in news director Lindsay Radford’s seven years at KSTP-TV, the station disgorged nearly eight hours of unaired video and minute-by-minute logs to the city of St. Paul in a March 22 probe of loafing pothole-fillers.

KSTP's McNaney and a sheepish St. Paul worker
KSTP's McNaney and a sheepish St. Paul worker

There’s no denying reporter Bob McNaney’s investigation had impact: St. Paul public works director Bruce Beese resigned hours before the story aired, and the city officials proclaimed they would try to fire the pothole non-fillers.

That civil-service process (which isn’t criminal), prompted the city’s quest for evidence.

Typically, Radford says, KSTP makes lawyers get a subpoena if they want anything from the station, and then “we give them what aired. We don’t give them raw [footage], we don’t give that up.”

The pothole case, she notes, “is the first time in my tenure we’ve willingly handed over material. Bluntly, it raises the hair on the back of my neck.”

So why do it? Simply put, the station that shouted “Outrage!” found it hypocritical to sit out the clean-up.

 “The feeling, from [general manager] Rob Hubbard on down, is that we’ve documented some pretty egregious behavior in a city department,” Radford says. “The city can’t take a full course of action without the material. We felt strongly that this needed to be corrected, so we handed it over.

As to the charge KSTP has become an investigative arm of the government, Radford says the station would also turn over the footage to the workers’ union or lawyers, should they ask.

She notes an unusual circumstance with this particular information: nothing came from a source.

“It’s strictly material we observed, it all happened in the public eye, and didn’t go above and beyond what any citizen could have seen,” Radford says.

“You want to know how we came up with the story idea? Several years ago, I went to [an investigative reporters and editors conference] and saw a story done by a reporter in Houston. Part of what the workers were doing was sleeping, driving to the end of cul de sacs, dumping asphalt, and logging the potholes as filled.

“So when the potholes got bad here, I asked if there was any kind of tracking system. Bob said he’d go find out, and it turns out [St. Paul] doesn’t do anything to track them. So he went and followed a crew. He came back and said, ‘You’re not going to believe what’s going on.’ So he went back another day, followed a second crew, and when he kept seeing the same thing, we said, ‘Really?’”

Radford emphasizes KSTP preserves its right under shield laws, should the city or workers seek additional information or testimony from station personnel.

“We did spend about an hour, meeting with [St. Paul’s] head of Human Resources. We were curious to know, by handing over the material, what their intentions were, who was viewing, and the path of the material. Would Bob McNaney or [producer] Mike Maybay become witnesses?

“Frankly, we don’t make very good witnesses for the city. We saw what we saw, and the material stands for what it is.”

But, she adds, talking with the city was “a way for us to document how the process works. It will take about another month before the disciplinary procedure and arbitration, from a news perspective, plays out.”

Media lawyer John Borger of Minneapolis-based Faegre & Benson says voluntarily surrendering material shouldn’t create a precedent that will make it easier for the next bureaucrat, or prosecutor, to obtain station information. Borger, who does not represent KSTP, recalls media organizations giving over raw footage in the 1990s, when journalists were attacked on Minneapolis’ north side.

Another unusual facet of KSTP’s decision is that city investigators are seeing footage viewers haven’t. Journalists’ first responsibility is to the public, and in cases where stations have been forced to give up footage, they first air it (sometimes in early morning hours) or put it on their website so everyone can see it.

Radford says KSTP discussed uploading the full footage on KSTP.com, but that a redesign that was being unveiled around the same time complicated the video transfer. “It’s something we’re still debating.”

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Comments (10)

I disclose that I now work for the Ramsey County Attorney's Office after being a Strib reporter for 27 years.

This seems like a well-calibrated offer of information sharing - and KSTP offers it to both the city and the unions.

The truth is, KSTP could seem to be a part of the problem if they did not make such an offer. I think they wisely did this. And, it sure doesn't hurt them in the public eye.

It should be noted that this is - as I understand it - pure video footage. There's little or no interpretation needed. It speaks for itself.

Now, that's far different from an investigative story that is not image-based. I'm sure KSTP would take a different stance on other investigative stories - as would most if not all reputable news operations.

I'd like to share a couple of interesting facts.

The city of St. Paul has cumulatively raised property taxes 42% in 4 years. And they have raised just about every tax they can think of on their local businesses.

Mayor Coleman has warned, on countless occasions, that he’s going to be forced, forced mind you, to cut street maintenance, police and fire services if the state doesn’t step in to pad the city’s budget.

After being re-elected with 68.7% of votes, Mayor Coleman told MPR that "I think the voters have totally rejected anyone that would suggest we're in a 'downward spiral."

Indeed.

I think that the people of St. Paul are getting exactly, precisely, the service they deserve. The Democrat party has worked damned hard to get the crew they've got into city hall.

I'm not one that is sitting here demanding the heads of the street maintenance crews either....they're doing what union public works crews have always done, just as their former boss was following a well trodden path of government management.

No indeed, count me as one who sincerely congratulates them, and wishes them joy.

But also count me as one who promises to work like a private construction laborer facing a pink slip to unseat my state representative if he gives the Mayor of St. Paul the time of day next time he (or the Mayor of Minneapolis, for that matter) shows up at the capital with his hat in his hand.

Of course John Borger is absolutely correct when he says that KSTP's decision doesn't set any legal precedent. But it still seems like a bad decision to me.

KSTP is providing its raw video to the government, and without even the formality of a subpoena. The station is not the government's investigatory arm, but even though it is willing to share the material with the other side, it's still allowing itself to become part of the government probe.

The fact that this is "not a criminal matter" doesn't make it better, from my perspective. As incensed as people got about the pothole-filling scandal, it's hardly the kind of life-or-death matter that is of such compelling public interest that the station's decision could, perhaps, be better justified.

When I headed up the Reporters Committee for Freedom of the Press and we started surveying the incidence of press subpoenas in the early 1990s, we found that broadcasters received many more than the print press. One of the obvious reasons was that, at least in those days, broadcasters had "video" and print organizations didn't. I recall, though, that newspapers reported that when their local TV stations turned over video without at least requiring a subpoena, it made it more difficult for the newspapers to persuade the judges to quash subpoenas issued to them. After all, the broadcasters were being "good citizens," so why were the newspapers being such obstructionists?

It comforts me not at all that government lawyers think KSTP "did the right thing." I suspect that most members of the public would agree.

But what that tells me is that neither one appreciates the need for preserving the independence of the news media from the government, or from interested litigants of any stripe. And most likely that's because those of us who are part of the news media (or who represent them) haven't done a good enough job explaining why that independence benefits the public interest in the long run.

I wonder if Ms. Kirtley has any thoughts about the example John Borger mentions: the media voluntarily providing authorities with images of the N. Mpls attack on journalists. Was that wrong? Wasn't that helping the government?

Just to make things clear.

My comments are my own, and do not reflect any position of the Ramsey County Attorney's Office. I am a part-time employee of that office. And, I am not a lawyer.

But, I did cover courts and public safety as my primary beat in the St. Paul buro at the Strib for 17 years.

In response to the question about raw footage being surrendered to authorities in the 1990s -- that was before I came to the Twin Cities, so I don't know the details. But if the footage was shot as part of the news gathering process, my answer would be the same as above.

And although I didn't go into it in my earlier post, I would agree that an alternative would be for the media organization to publish, broadcast or post the raw video first.

With all due respect, that begs the question.

So, it's OK to cooperate with the government if you show all the video to the public before you give it to the government? What if that's just bad TV? No one will do that. Then what, Ms. Kirtley?

My point is that, like many black and white standards, a media standard of "give them nothing without a subponae" is not smart. And not defensible. And, not necessary to uphold journalistic integrity.

I suppose we'll have to agree to disagree, Mr. Gustafson.

I'm a lawyer (though not admitted to practice in Minnesota -- just NY, DC and VA), and the canons of ethics for lawyers do speak in those types of absolutes. Of course journalism isn't a regulated or licensed profession, and reasonable people can differ on what the standards should be.

But whether one agrees with a standard or not, I think that a black-and-white standard is more easily defended than, "We'll turn it over if we think the situation is serious enough," or "If we like the plaintiff," or "If it is expedient to do so." That's what makes judges and members of the public think that journalists are arbitrary creatures who are accountable to no one.

This is similar to the reasoning of some media lawyers who advise their clients to either retain, or destroy, all notes, drafts, outtakes. There are obviously independent journalistic reasons why you might want to hang on to one set of notes and not another. But from the perspective of a judge (or jury), it's a lot more palatable to say you no longer have the notes from a story you wrote 6 months ago because you routinely destroy notes after 3 months, than to say "I no longer have the notes" relevant to this particular libel lawsuit.

Insisting on a subpoena in all cases is part of maintaining that arm's-length relationship, and again, helps to dispel accusations of favoritism or partisanship.

And regarding the point of "showing all the video" -- which I concede may seem artificial -- it is a way of reasserting that the reason you shot it in the first place was to inform the public, not to act as a government investigator. I recall that when Michael Gartner was at NBC, he put some footage that he expected to be subpoenaed on the network's satellite feed to its affiliates, so they could use it in any way they chose. At that point, it was "published," and most news organizations don't have a problem with making "published" material available -- although there are actually a few state shield laws that protect even published information from compelled disclosure.

It's easier to make this material available today with the advent of Web sites, and in fact, increasingly news organizations are providing their readers this kind of access as part of facilitating transparency of the editorial process. David makes reference to this practice in his original blog post, and I was simply endorsing it, not thinking I had to repeat it.

It always strikes me that when municipal employees get stung by tv news reports, that the management team has let down the citizens even more than the slacker employees. Asking the tv station to provide "evidence" to them only compounds the management inadequacy. Was there no verification method of work completion or even hourly work flow? Why not? Even after the waste has been documented, firing the offenders and hiring new people doesn't really solve anything if management doesn't know what it's people are doing. I think it is unconscionable for the news department to give up footage, and it's NOT hypocritical to keep it. The message to the city on behalf of the citizens, "Get a hold of your public works department. That's our hard-earned tax money you're spending!"

Ms. Kirtley agrees to disagree with me. But then goes on at some length.

A couple of points.

The canons of ethics for lawyers do speak in absolutes. So do criminal laws. Like, it’s not OK to murder people. But those canons and laws are applied to Real World facts – not in a vacuum. If it were as simple as absolute standards - black and white - we would not need lawyers or courts.

Journalists and lawyers know that the truth often is not so simple to discern. Applying the law then becomes a complex undertaking.

Ms. Kirtley would not have given over media-captured images of the N. Mpls attack on journalists without subponae.

Clearly, major news organizations in this town – undoubtedly with advice of very experienced media lawyers – disagreed with her position. So, who’s in the mainstream of legal and journalistic thinking here?

Sure, the media can throw up raw video on a website and say, “See, we published it.” I think that many of the judges I know in 17 years of covering courts on a daily basis would not be impressed with that gambit.

That’s like – in Old Media terms – throwing some news stuff into agate type on a page of Want Ads (remember those?) and crowing about how you published it for the public to see.

Think a judge would be impressed with that? I doubt many judges I know would find that persuasive proof in an argument by the media that “We only give up what we publish without subponae.”