As journalists file fewer lawsuits, citizens fight for open records

On Tuesday, the U.S. Supreme Court will hear arguments in what could be a pivotal First Amendment case: the FCC v. Fox. What the Court decides will affect what we see on TV and hear on radio for years to come.

It is an important lawsuit that revolves around the Federal Communication Commission's attempt to enforce new regulations that even "fleeting" obscenities that occur on the air, in live coverage, for example, could result in severe penalties and fines. The case has attracted amicus briefs comments from networks, professional journalism organizations including RTDNA and NAB, 11 state broadcasting associations, public broadcasters and many more.

If the FCC's rules stand, broadcasters worry that they might have legal exposure every time they air anything live, even in news stories; although the FCC says news is an exemption it would consider, there are no guarantees.

This case serves as a reminder that it is important for media companies to get involved in court cases, sometimes to file lawsuits. But media companies are backing away from legal fights and that is something that should worry us all.

Stepping back from a fight

In a 2010 study called "Litigation, Legislation, and Democracy in a Post-Newspaper America," Brigham Young professor RonNell Andersen Jones points out that journalists have shaped crucial policy by going to court. She writes, "In literally every state in the union, the major force behind the adoption of open-meetings acts and open-records laws, and the entities that overwhelmingly invoke them for public-serving purposes after their adoption, are newspaper companies."

Professor Jones calls media companies "legal instigators and enforcers."

"They have funded the drafting of virtually every piece of open-government legislation on both a federal and a state level. They have also funded litigation efforts to ensure that these statutes, once passed, are obeyed by government officials."

And she said, while other new media sources may fill the roles of gathering and reporting the news, "there is no apparent successor to the role of legal instigator and enforcer."

To get a case before a state Supreme Court, much less the U.S. Supreme Court, litigants have to be willing to fight for years and spend copious amounts of money -- money news organizations say they no longer have.

In August 2011, The National Freedom of Information Coalition (NFOIC) found that while the public has a growing interest in government transparency, media companies are less likely to get involved in lawsuits these days. The study said:

"60 percent of media lawyers surveyed noted a decrease in open government lawsuits by media organizations over the past five years, 20 percent said the number of lawsuits stayed about the same, and 20 percent reported an increase in lawsuits by media."

Case study: Why the exceptions matter

WGAL in Lancaster, Pennsylvania is an exception to that trend. For two years, the TV station, owned by the Hearst Television group, has fought a legal battle over autopsy records involving a local college student. News Director Daniel O'Donnell told me, "For years it has been standard practice for us to be able to get the cause of death from our local coroners. But in this case, the coroner imposed an old Coroner's Act statute that said he would not release the cause of death in a case until 30 days after the new year."

WGAL appealed the case to the state's open records office and lost. When O'Donnell turned to his company's lawyers, they told him to press on, even though it would be costly and time consuming. "Now, two years later, we are not even fighting over the information itself. That is already known," O'Donnell said.

Open records are crucial for all of us. It is hugely important in our business, we are a journalism company. But I know if I was not part of a company like Hearst, if this newsroom had to go it on our own, we would have been making a choice about whether to wage a legal battle over principle or lay off staff.

O'Donnell said the Pennsylvania Supreme Court has agreed to hear the case.

We simply cannot allow public officials to dictate the timing of the release of details of something as important as the cause of a person's death. We are not trying to get autopsy details or photos, we have no interesting in dragging the students name back into the news. This is purely about legal access to vital and we believe, public, information.

How to get legal help

"I get at least a call at day from journalists who need help fighting for some open government issue," Mark Caramanica, the Freedom of Information Director for the Reporter's Committee for Freedom of the Press told me.

The Reporter's Committee has been a vital resource for journalists who once might have turned to their newsroom's legal counsel.

"We can help them get their FOIA request in order and help them appeal requests when they are denied ... We also have a network of lawyers who are willing to volunteer to help journalists," Caramanica said.

The lawyers are most willing to help in states that allow litigants to recoup legal fees and expenses if they win their open records case. But even the Reporter's Committee has found that lawyers are less likely to work for free when the lawsuit involves the journalist as plaintiff. "We have a lot more success getting free help when the journalist is in a defensive position," Caramanica said.

So, who is fighting for open records?

At the same time, media lawyers say citizen groups are stepping up to fight the battles media companies once fought. "One top editor told me, 'We don't have the deep pockets we used to have,' " says Frank Gibson, the founder of the Tennessee Coalition for Open Government.

Gibson told me his group is backed by both media companies and private citizens and fights for open records and meetings laws in his state. The National Freedom of Information Coalition study found that trend is growing:

41 percent of media lawyers surveyed and 46 percent of NFOIC members said open government lawsuits brought by others beside news organizations had increased over the past five years. Overall, 44 percent of media lawyers and 68 percent of NFOIC members thought that citizen and media expectations for more government "openness, transparency, and accountability" had increased.

The NFOIC study quoted one lawyer who said it is clear that lawmakers and government officials are becoming less concerned about complying with FOI laws because they know media companies are less likely to sue these days.

BYU's Professor Jones added, "The first newsroom personnel cuts have been investigative reporters, who tend to file the most requests under open-government laws; when these roles are eliminated from newspapers, the legal instigator role goes with it."

What can you do?

Even if newsrooms cannot afford to file lawsuits, journalists should put up a good fight to force open records and open meetings. To do that, they have to know their rights and raise a stink anytime they are shut out of meetings, hearings and government files. The Reporter's Committee has a big collection of legal guides to give journalists the muscle they need to gain access. The Citizen Media Law Project offers a free legal referral service and other resources.

When I teach journalists from places like Afghanistan and Egypt, I see the awe in their faces when I show them the open records and describe the open meetings laws and campaign finance disclosure laws that we American journalists have come to take for granted.

Professor Jones reminds us that before the Federal Freedom of Information Act passed, 27 federal agencies opposed it, three presidents stalled it and Lyndon Johnson, under pressure from journalists, finally said he would sign "the damned thing." Today, the Act that took 10 years to pass, is the centerpiece for American's right to know what is going on in their government.

I know news organizations are pressed for money. I hope in 2012 they will press harder for open records, set aside even a little money to wage FOI battles and support non-profit groups that are picking up the work once done by media lawyers.

Sometimes, the role of the journalist is to fight, sue and raise hell to keep government open and at least increase the chances that it will be honest.

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    Al Tompkins

    Al Tompkins is The Poynter Institute’s senior faculty for broadcasting and online. He has taught thousands of journalists, journalism students and educators in newsrooms around the world.


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