After incidents in which phone conversations with Chicago Tribune reporters were recorded without their consent by City Hall officials, a city attorney has insisted that there is no widespread practice of such taping and that steps have been taken to ensure it does not happen again.
Recording a conversation without the consent of all parties is a felony in Illinois.
“This failure was due to inadvertence — not some practice or plan to record interviews without consent,” Stephen Patton, the city’s corporation counsel, wrote Saturday in a letter to the Tribune, which had sent a letter to the city Friday demanding that such recordings cease.
The issue reached a public forum last week when a court filing in a wrongful death lawsuit against the city raised questions about whether a city spokeswoman had recorded Tribune reporters without their consent as they conducted a phone interview with Chicago police Superintendent Garry McCarthy in October 2011.
And in separate incidents this past September, city spokespeople twice recorded a Tribune reporter as he conducted phone interviews with a top city official involved in Mayor Rahm Emanuel’s controversial speed camera program. The spokespeople acknowledged that they independently recorded the interviews without asking the reporter for consent.
Gerould Kern, senior vice president and editor of the Tribune, declined to comment Friday about the recordings. Instead, he cited the letter sent by Tribune Co. attorney Karen Flax to Patton, demanding that city officials cease recording Tribune reporters without consent. The letter also asked that the city preserve copies of all recorded conversations and turn them over to the Tribune.
In its response Saturday, the city said it was unclear whether there would be any tapes to turn over. While City Hall acknowledged the two improper September recordings, it insisted they were mistakes.
“What we have told city employees is that our position is that you follow the law,” City Law Department spokesman Roderick Drew said Friday. “And when this issue was brought to the city’s attention, we reminded employees to continue following the law.”
Top Emanuel press aides have acknowledged it is their practice to record media interviews of city officials on controversial topics, though often it is obvious because it happens in person. Emanuel communications director Sarah Hamilton said in September that she always informs reporters when she is recording them on the phone.
But doubts have been raised about whether Hamilton indeed followed the law last year when she was top spokeswoman for the police department, which was dealing with controversy over police Officer Gildardo Sierra.
In October 2011, the Tribune wrote about Sierra after he shot three men — two fatally — in three separate incidents over six months. McCarthy told the Tribune that the first two shootings were justified but that Sierra should have been taken off the street before the third shooting.
The victim of that third shooting, Flint Farmer, was killed. His girlfriend and others are suing Sierra and the city.
In a deposition in that suit, McCarthy said he and Hamilton had a conference call with two Tribune reporters, Jeremy Gorner and Steve Mills, who were investigating the Sierra shootings. Gorner and Mills were in a conference room, talking on a speakerphone. A third Tribune reporter, Stacy St. Clair, was also in the room, listening to the interview.
Last month, the city turned over to the plaintiff’s lawyers an audio recording and transcript of the conference call showing no evidence that McCarthy or Hamilton sought consent to record the Tribune reporters.
“Absent from the audio and the transcript was evidence of the parties’ consent,” according to a court filing last week by the plaintiff’s attorney, Craig Sandberg. The filing also notes that during the deposition, McCarthy was asked about the circumstances surrounding the recording.
“Supt. McCarthy testified that Sarah Hamilton (now press secretary for Mayor Rahm Emanuel) made the audio recording,” the motion states. It continued, “Supt. McCarthy confirmed that he (personally) did not obtain consent to record the telephone conference from Messrs. Mills and Gorner. He did not know whether Ms. Hamilton obtained consent from Messrs. Mills and Gorner.”
The three Tribune reporters said Friday they do not recall any request for consent to record the interview
“I don’t remember them saying that, and I would have because it’s an unusual request,” St. Clair said. “I don’t think anyone has ever asked me to record a phone conversation.”
The three Tribune reporters also said they did not record that interview.
Hamilton did not respond to a request for comment Friday, deferring to Drew, who said that while it was her normal practice to ask for consent before recording, she could not say with “absolute certainty” whether she did so in this case.
Speed camera story
In September, two city spokespeople acknowledged that they recorded Tribune reporter David Kidwell’s phone interviews with Scott Kubly, Chicago’s managing deputy commissioner of transportation, without Kidwell’s consent.
After the story about the city’s speed camera initiative was published on Sept. 11, Kidwell received a voice mail message from city spokesman Peter Scales disputing the accuracy of a Kubly quote, and saying he had a recording of the conversation.
Kidwell then called Kathleen Strand, a spokeswoman involved in the earlier Kubly interview, and she acknowledged recording that conversation as well.
Kidwell said he was not asked for his consent to record either interview.
Hoping to set the record straight regarding the disputed quote, Kidwell requested a copy of the tape from Strand.
“Kathleen calls me back about a half-hour later and says that portion of the tape had been inadvertently erased — it was gone,” Kidwell said Friday.
Kidwell said he did not record either interview.
Both Scales and Strand later admitted to another Tribune reporter that they had recorded the conversations without permission, but they said their aim was to record Kubly, not Kidwell.
Firing back against the Tribune’s complaint, City Hall said the newspaper had failed to get consent for a taped interview with a city official Friday.
Tribune transportation reporter Jon Hilkevitch recorded a phone interview Friday with Oswaldo Chaves of the Chicago Department of Transportation. Scales and one other person were also present, according to Drew.
Hilkevitch sent a follow-up email to Scales to confirm the spelling of Chaves’ name, noting that it wasn’t clear on his recorder. City officials contend that the recording was made without their consent.
“They are 100 percent certain, the three people that were involved in the interview, that they were not asked, nor were they aware, it was being taped,” Drew said.
In an email Friday to Tribune editors, Hilkevitch said that while there was no evidence on his tape that he asked for consent, he routinely tells subjects when he is recording, and believes he did so in this case. He also noted that he conducted the interview by cellphone and that the initial call dropped out and had to be re-established, suggesting that the notification might have been lost in transmission.
While federal law permits the recording of telephone calls and conversations with the consent of at least one of the parties, Illinois is one of 12 states requiring two-party consent, according the Reporters Committee for Freedom of the Press, a Virginia-based nonprofit organization.
Don Craven, a Springfield-based media attorney, said the city recordings appear to be a violation of the law. He said eavesdropping violations are considered minor offenses in many states, but not in Illinois.
“They occasionally get prosecuted, but in many places other than Illinois it’s not a felony,” Craven said.
An exemption might offer some cover for the city in the McCarthy taping. The Illinois statute allows police officers to record conversations while engaged in a variety of law enforcement duties, such as traffic stops. Recording journalists who are interviewing a police superintendent, however, is fuzzy at best, according to Clay Calvert, a journalism professor at the University of Florida.
“While there is an exemption for recording by police officers, they have to be acting within the scope of their law enforcement duties,” Calvert said. “I really wouldn’t think that would apply to that particular case.”
Tribune reporter John Chase contributed.