Permission needed to re-purpose news photos for advertising 

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Send your questions to Steve Key, HSPA executive director and general counsel, skey@hspa.com.

 

The following questions were submitted by AIM Indiana Media, Ripley Publishing Co., Daily Journal (Franklin): 

Permission needed to re-purpose news photos for advertising 

Q: A local high school baseball team will play for the state championship and the newspaper is creating community support pages. I would like to re-purpose previously published photos of the team, but am told there are legal ramifications surrounding the use of those photos without a release from individuals in the photos. Can you shed any light on this? 

A: If you are doing a special section on the state championship team, you can use the photos published from earlier in the season or unpublished photos. Where you can get in trouble is if you connect the photos into advertising without permission from those in the picture. It can create both a right of publicity problem by making it appear the person is supporting the advertiser and since we’re talking about high school athletes, it could pose a problem with eligibility if it appears a student athlete is hawking a product. 

This doesn’t mean you can’t have photos on a page and at the bottom of the page is an ad supporting the team or child or several ads of support, but there must be a clear delineation between news content and advertising. 

Burden is on sheriff to provide a statutory basis for denying access to inmate conversations

Q: Are conversations between inmates and someone outside the jail public record? If so, could you refer me to the Indiana Code? We have a situation in Ripley County that needs attention and the newspaper needs to hear that recorded conversation. 

A: This is an interesting question. We always start with the presumption of a public record being disclosable unless there’s a statutory provision that mandates confidentiality or gives the government unit the discretion to make the record confidential. 

The recording system as I understand it automatically records all inmate calls, so it’s not a record created as part of a criminal investigation. I don’t believe it falls under that provision that would allow a sheriff to keep the record confidential. 

I also don’t recall a specific statute that addresses the recordings of inmate calls in the county jail. (If we were talking about a state prison there is a provision that allows the Department of Corrections to determine what records are confidential or not.) 

Unless a Public Access Counselor opinion convinces me otherwise, I’d suggest the newspaper make the records request. The burden rests with the Sheriff to provide a statutory basis for denial. If that happens, we can look at the statute and see whether we agree it would apply in this situation. 

(Note: Public Access Counselor doesn’t appear to have addressed this question directly.) 

Community hospital subject to Open Door Law but with some special provisions

Q: Our local hospital system, Johnson Memorial Health, is owned by the county. A few months ago, the president and CEO resigned suddenly without explanation. The board would not share any details about why, or give us a copy of his resignation letter or details of his severance. The search for a new CEO was conducted entirely behind closed doors, and the hospital isn’t willing to share any information about the new CEO’s salary, benefits, etc., or why he was chosen. Just who he is and that he has been with the hospital for years.  

 I am not sure if any tax dollars funnel to them – does that matter because it is a county property?.  

A: As a county hospital, it is subject to the state’s Open Door Law and Access to Public Records Act. Board meetings should be properly noticed and records generally can be obtained.  

The sticking point is that the legislature agreed to give county hospitals some special provisions (to help them compete against privately-owned hospitals). 

  IC 16-22-2.5-2 says “all proprietary and competitive information concerning the county hospital is confidential.” 

  IC. 16-22-3-28(c) lists five items they can discuss in executive session and (e) again says they can keep confidential until announced to the public: records of a proprietary nature that if revealed would place the hospital at a competitive disadvantage …” 

So you can ask, but be prepared to argue that the information sought does not put them at a competitive disadvantage if publicly revealed.