FOI attorney says SC arrests have ‘weird wrinkle’ because journos didn’t violate the law

Two journalists, Susan Ardis and Jenna Kurzyna, with Columbia WLTX 19, were at the door of the Columbia Housing Authority in Columbia, South Carolina, on Jan. 29, 2019, searching for information. Later they were handcuffed and arrested with no clear violation of breaking any law.

Above photo: Jenna Kurzyna and Susan Ardis, staff from WLTX -TV, were handcuffed and arrested as they attempted to leave a government facility’s parking lot.

By Hannah Lester, SizingUpTheSouth.com reporter, Auburn University

Ardis and Kurzyna had been pursuing a story about the Allen Benedict Court Apartments, part of the Columbia Housing Authority. Two residents had died of carbon monoxide poisoning in one of the apartment buildings.

In addition, 411 residents were displaced from their apartments. The reporters, interested in the full story, continued to dig deeper. They had already made a previous trip to the Columbia Housing Authority pursuing public records. 

Upon finding the door of the building locked on this day, the two turned to leave while calling their station manager. Rich O’Dell, president and general manager of WLTX, said the Columbia Housing Authority police blocked his journalists’ marked car, which identified their station, preventing them from leaving. Photo: Rich O’Dell

Next, Kurzyna said Ardis put their station manager on speaker phone and the authorities asked the two to exit the car and placed them in handcuffs.

Frank LoMonte, executive director of the Brechner Center for Freedom of Information said that government officials often stress things be kept secret. This means that conflicts may occur over information. He said he hopes this was an accident and that an apology is all the Columbia Housing Authority can do now. Photo: Attorney Frank LoMonte, executive director of the Brechner Center for Freedom of Information.

“I am hoping, based on what I have read, that is is just a misunderstanding or miscommunication by security guards who were overzealous in policing what they perceived to be a trespass,” LoMonte said.

“Because people have had that drilled into them, and because government agencies in particular are obsessed with promoting a positive public image, people feel like they’re justified in pushing journalists around.”

Frank LoMonte, Executive Director, Brechner Center for Freedom of Information

There are many cases where things can become murky and uncertain in terms of the law. If a journalist is in an area where they do not have access, the situation is different, he said.

After hearing that his journalists had been placed in handcuffs, O’Dell said he called the station’s attorney. Then station members drove to the scene to support Kurzyna and Ardis. Kurzyna said there were probably 15 people total who were out there together.

“Well I was appalled that they were arrested or that they were detained at all because our journalists – I knew exactly what they were doing,” O’Dell said. “They were going after records that they had had access to a few days earlier in the same building. We have never been told that we couldn’t go there, we have never been told that there was a problem with that.”

Before the station members arrived, Kurzyna and Ardis were released.

Jenna Kurzyna, reporter for WLTX -TV in Columbia, SC, was one of the two journalists handcuffed and arrested. LinkedIn photo

“To see the support of my news team was very overwhelming in a positive way, it was great to know in a situation like that, that they did have our backs and were there for us,” Kurzyna said.

O’Dell said former mayor Bob Coble released an apology statement on behalf of the Columbia Housing Authority and again apologized at a public meeting. Photo: Bob Coble

“The reason we use the word ‘arrest’ is because they had used it; the housing authority police said you’re being arrested because. They were not charged.”

Rich O’Dell, president and general manager, WLTX-TV, Columbia, SC

To avoid this incident in the future, O’Dell said that the Columbia Housing Authority retrained the security guards the night of the incident.

O’Dell said his journalists are not deterred and will continue pursuing the story.

There is nothing from preventing Kurzyna and Ardis to report from the Columbia Housing Authority building in Columbia, SC. Supplied photo

“As we dig deeper, we’re finding more and that makes us dig even deeper,” he said.

However, for Kurzyna and Ardis, there was nothing preventing them from reporting in that location.

“This one is a really weird wrinkle because it seems to be so cut and dry, that there was no violation of the law on the part of the journalists and that they had every right to be where they were and they weren’t doing anything in the least bit suspicious.”

Frank LoMonte

He said many cases involve a journalist interested in taking photos or videos. When journalists are outside of government buildings, LoMonte said they may often be run off the property.

He said he also believes that there should be better, more clearly labeled laws describing the rights of journalists.

“We need the courts to step up and more firmly protect the, the act of news-gathering,” LoMonte said.

The problems may occur with people and authorities who are unaware of public access. However, the situation can reverse itself when journalists enter areas where they are not allowed.

“There’s no question that I think generally people don’t have an adequate appreciation for how strongly the first amendment protects the right to gather news in public places,” he said.

If the case does arise where journalists finds themselves in this situation, LoMonte suggests calling an editor when something goes wrong.

“There is someone listening in so that you have a witness. If people’s stories do not align then you have an outside third party observer who can vouch for your version of the story, right?”

Frank LoMonte

According to LoMonte, this may also allow the editor to help communicate on a journalist’s behalf. Security or police may take a cellphone away, however, he said.

Additionally, he said journalists should not escalate or resist in any way, even if this means handing over personal belongings.

“Try to be the calm, voice of reason in the room, even when your pulse is racing and you’re very scared of going to jail,” LoMonte said.

Kurzyna said that both she and Ardis attempted to stay calm in their own situation.

“Know that you didn’t do anything wrong, because that kept being stated [by others] to me too,” Kurzyna said.

“Your mind is all over the place, you don’t think you’re going to work to be arrested or in handcuffs. Remain calm and know that what you did wasn’t in the wrong. This is why we do what we do – we were there trying to obtain public records for our report.”

Jenna Kurzyna

Journalists may be protected federally above non-journalists pertaining to one law: The Privacy Protection Act of 1980, LoMonte said. He said this law was enacted in the 1980s and so people generally forget about it. This act may allow a journalist to say no when an officer asks to search them or their property, LoMonte said.

The Privacy Protection Act of 1980 is legislation passed in the United States that protects journalists and newsrooms from search by government officials. The Act protects “work products” and “documentary materials.” A subpoena must be ordered by the court to gain access to the information.

“Make sure that it is clear that you identify yourself as a journalist,” LoMonte said. “Make sure the person who’s taking your phone out of your hand knows that you’re a journalist and that you have your unpublished work stored there.”

Ultimately, Kurzyna said that what happened to her and Ardis is not the story. She said they want to focus on the 411 displaced residents.

“The story is not about our journalists, you know,” O’Dell said. “The story is not about us getting detained or arrested, the story continues to be the two people who died, the 411 people that are displaced, they have no place to go. One hundred fifty are children and they’ve got nobody to speak for them. That’s the story.”

Hannah Lester is the 2019 SPJ Region 3 spring intern and reporter for SizingUpTheSouth.com. She will be graduating from Auburn University this spring with a major in journalism. hannah.lester.spj@gmail.com