Media companies involved in fewer FOI legal actions.
Columbia, Mo. (January 4, 2010) – We are delighted to announce that the John S. and James L. Knight Foundation has approved a new $2 million, three-year grant to the National Freedom of Information Coalition to launch the Knight FOI Fund and support state open government groups.
The Knight FOI Fund will fund up-front costs such as court costs, filing fees, depositions and initial consultation fees, if attorneys are willing to take cases that otherwise would go unfiled. In addition to the Knight Defense Fund, NFOIC will continue to offer sustainability and project grants for state FOI coalitions. (A call for new grants will be made in the spring of 2010.)
The need for such a fund arose from the realization that the economic crisis and the evolution of the news media has resulted in declining levels of FOI advocacy. The Knight Foundation and the NFOIC had a hunch that that support for litigation and for the work of FOI coalitions themselves was threatened by the media economy. So, in the summer of 2009, we asked NFOIC members to respond to a brief informal survey.
An online survey was sent to all NFOIC member coalitions, and the results were convincing: When asked whether, in the past five years, the number of open government lawsuits filed by the news media in their state had fallen to varying degrees, 60 percent of groups, or 23 states, reported that litigation had “fallen dramatically.” Another eight states reported that litigation had fallen slightly, meaning that nearly 80 percent of respondent coalitions reported decreasing litigation levels.
More ominously, 85 percent of respondents said that they expected FOI litigation to decline more dramatically in the next three years. The open-ended responses really tell the tale here, as coalition members all said that they expect the slowdown in litigation to worsen in the immediate future. And it’s not just litigation: many of the responses indicated an unwillingness by the news media in their state to even turn to the lawyers for an angry letter demanding access to information that clearly is public.
"We don’t even ask anymore for some papers to get the lawyers to call the city attorneys or write a letter, because they won’t authorize the $250 it will cost," one respondent said.
One major law firm in the state of Florida has seen its fees invested in access issues drop from $300,000 in 2008 to less than $225,000 this year.
A media attorney in Texas reported that litigation activity on FOI is "way, way down."
"We are seeing almost nothing on records and meetings, and this is in a state in which we typically had a half-dozen cases underway at any given moment for years," the attorney continued. "We had a client decide not to move forward with an egregious FOI case that we would have won easily because it was going to require $15,000 or so in costs. They felt confident they’d ultimately win the fees but just couldn’t part with the money."
We received similar responses from 30-plus states, all with the same theme: where once the news business stood ready to defend openness, it now faces such relentless corporate cost-cutting pressure that litigation often is out of the question.
What we found convinced us that we needed to move forward with a more rigorous look at the issue, so we followed that survey up with a survey sent to the membership of the Media Law Resource Center, the nation’s media lawyers.
In July 2009, MLRC sent the attorneys of its Defense Counsel Section an electronic questionnaire developed in conjunction with the National Freedom of Information Coalition to collect information on the effect of the changes in journalism on the intensity of the battle for access to government records and proceedings.
Tallied results from the survey find that:
- 53 percent of respondents said that the frequency of open government violations has increased in the past two to five years, while less than a third said that reporters in their jurisdiction have increased the number of FOI requests they are making.
- When it comes to the resources devoted to seeking legal compliance with open government laws, the survey clearly illuminates the erosion of the media economy, as 53 percent of respondents said that resources have decreased, with 34.9 percent reporting that resources have decreased substantially.
- A majority of respondents cited an average decrease of 35.9 percent when asked to assign a percentage of the increase or decrease in open government-related activity.
It's a real problem. First, access is lost. Then, misconduct goes unchallenged, and openness and accountability are illusory. Ultimately, the public is deprived of important information.
Longer term, without the press serving as the enforcement arm for the sunshine laws, more government officials will deny access with impunity, especially because government seldom enforces the access laws against public officials who violate them.
Soon, stern letters from journalists and their lawyers will be mere cries of wolf, and while journalism struggles to figure out "what’s next," this much is certain: government grows more secretive at the state and local level, with less pushback than ever before.
Without another source to fund access fights—to finance the private attorneys' general function formerly served by the fourth estate—we will see that sunshine laws will themselves be paper tigers.
The Knight FOI Fund will be that source.
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The John S. and James L. Knight Foundation advances journalism in the digital age and invests in the vitality of communities where the Knight brothers owned newspapers. Since 1950, the Foundation has granted more than $400 million to advance quality journalism and freedom of expression. Knight Foundation focuses on projects that promote community engagement and lead to transformational change. For more, visit http://www.knightfdn.org/.
This fall the Knight Commission on the Information Needs of Communities in a Democracy released its national report. It concluded that information is as vital to the healthy functioning of communities as clear air, safe streets and good schools. For details, see http://www.knightcomm.org/.
The National Freedom of Information Coalition is a national network of state freedom of information advocates, citizen-driven nonprofit freedom of information organizations, academic and First Amendment centers, journalistic societies and attorneys. A unit of the Missouri School of Journalism, the NFOIC is an affiliate of the Donald W. Reynolds Journalism Institute. Its mission is to foster government transparency at the state and local level. NFOIC is based at the University of Missouri, home to the nation’s oldest Freedom of Information Center. For more, visit http://www.nfoic.org/.