Amid decline, newspapers press less for records in court
Shane Fitzgerald has pushed for public records in court to help his reporters uncover details of a destructive school fire, the police shooting of an inmate and a public defender who wasn’t doing much work.
But there are many instances where his newspaper group in suburban Philadelphia has not, especially since the declines in the news industry walloped the budgets for local news coverage and left little to cover the costs of court fights for public access.
“You really have to assess your risk there, and, do you really have a shot at getting it?” said Fitzgerald, executive editor for the Bucks County Courier Times, The Intelligencer and the Burlington County Times. “It used to be you could go and file for open records and fight it a little bit on a hunch or on a theory or on some premise. That doesn’t really happen that much anymore.”
Newspaper industry declines have led to widespread mergers, massive layoffs and shrinking local coverage. According to an Associated Press analysis of data compiled by the University of North Carolina, more than 1,400 towns and cities in the U.S. lost a newspaper over a 15-year period.
Industry experts said they fear the demise also has taken a toll on public access to records and government transparency, as beleaguered news organizations are pursuing fewer challenges in court. Often, government agencies are treating public records as private property and disclosure as optional rather than a requirement, said David Snyder, executive director of the First Amendment Coalition in Northern California.
“There’s a lot fewer instances where newspapers or anybody are willing to actually go to court and force an agency to comply,” Snyder said. “So what happens on a stretch of highway if the speed limit is 55 if everyone knows there’s never a cop on that stretch of road ever, or very rarely? They’re going to drive fast.”
Katie Townsend, legal director for the Reporters Committee for Freedom of the Press, said she can’t quantify the drop in media cases, and it’s not easy to assess its impact. But she points to her job as proof of the problem, adding she was hired five years ago to help provide legal support to news organizations grappling with the issue.
Last year, her organization started an initiative to place attorneys in five states to support investigative reporting. Scores of news organizations filed proposals for how they could use the help, and committee lawyers this year will start working in Colorado, Oklahoma, Oregon, Pennsylvania and Tennessee.
“In some respects, it doesn’t matter what the law says if you can’t enforce it,” Townsend said. “There are lots and lots of stories that come out of public records that I think oftentimes required some form of a lawsuit.”
For years, newspapers led many legal battles that paved the way for public access to records and official proceedings. Two cases brought by The Press-Enterprise of Riverside, California, in the 1980s went to the U.S. Supreme Court, which ruled that the public should have access to jury selection and preliminary hearings.
At the time, the publisher of the Southern California newspaper was a resident who was passionate about his community’s right to know, said Mel Opotowsky, a former editor. When the newspaper won a battle over records in court, it would run a story letting readers know an agency had wrongly withheld the documents, and the legal fees owed as a result, he said.
Once the paper was sold to a series of media companies, he said it became tougher to make the case to spend money on these local court battles. Now, there are fewer journalists doing this kind of work at all, he said.
“When somebody refused to get a record, the reporter would go to his editor. The editor might call the public agency and say, ‘Why don’t you cough that thing up?’” Opotowsky said. “Now, it is a little harder to do that because the papers are not so willing to jump into every case that comes along.”
In some cases, news organizations have coped with the shift by banding together. Newspapers that saw previously saw each other as competitors have joined to press for access to records in the courts, cutting the cost of litigation and amplifying the impact, said Cate Barron, president of PA Media Group, which publishes the Patriot News.
“A couple of years ago when the need to keep fighting these right-to-know cases came up, we started calling each other and saying, ’Hey, do you want to join my case?” she said.
That happened when the media wanted to get coroner records detailing the cause of fatal overdoses in Pennsylvania’s Lancaster County — information that was vital to reporting on the opioid crisis, she said. In another instance, news organizations pressed for public utility records after hearing the streets where utility company officials lived reportedly received preferential treatment during a snowstorm, she said.
But challenges remain, especially in some states.
James Neff, deputy managing editor for investigations at the Philadelphia Inquirer, said he was involved in cases in Washington state that paid for themselves because government agencies ended up being on the hook for newspapers’ legal fees after wrongly withholding records. That doesn’t happen in Pennsylvania.
And that doesn’t appear to be lost on government agencies, which often sue news organizations in Pennsylvania to block them from obtaining records deemed to be public by a state open records office, he said.
“When things are tight, you don’t have the resources to fight these even though they’re a winner at the end of the process,” Neff said, “and the other side often knows it.”