While the economic meltdown has proven painful for journalists nationwide, the sting might be felt more acutely in freedom of information fights, where news outlets are spending less on investigative projects.
Those who know the Freedom of Information Act best say there has been a steep plunge not only in the number of requests being made, but also in the number of lawsuits filed, though no national statistics are available.
Media lawyers have noticed the trend and find it alarming, not merely for the sake of their business but for the public’s right to know, said Mark Anfinson, a Minneapolis-based First Amendment attorney. For the past 25 years, Anfinson has represented nearly every type of media in the state, including the Minnesota Newspaper Association and the Star Tribune in Minneapolis.
Though it is difficult to pin down exactly how much FOI litigation has been stifled by newsroom budgets, Anfinson said there has been a dramatic decrease in the number of newsrooms that can afford to take a FOI denial to court.
“It’s hard to say how much the reduction has been,” he said. “There was never a steady number of access cases in any given year. But there were always a few, and now there are not very many at all.”
Important FOIA victories have resulted in major changes in legislation and brought to light government wrongdoing. But with significant cuts being made across the board in newsrooms around the country, media organizations may begin to see a decrease in the number of FOIA battles fought and won.
More than 25,000 journalists have been cut from newsrooms in the past two years, according to Laura Frank, a former Rocky Mountain News investigative reporter who wrote the online report “The Withering Watchdog” for PBS after her newspaper closed in February. Frank examined the newspaper crisis and says the industry began struggling when media companies cut personnel to pad profit margins.
Employment at daily newspapers dropped from 52,600 in 2008 to 46,700 in 2009, the lowest it has been since 1981, according to the American Society of News Editors’ Web site.
Frank found that the first newsroom cuts were usually investigative reporters, who also tend to file the most FOIA requests.
“You can’t cut the reporter who’s producing (content) every day, or you have blank space in your paper,” Frank said. “Investigative reporting is a prime target when cuts come. The reporters that do it tend to be the most experienced and skilled and thus most expensive.”
Charles Davis, executive director of the National Freedom of Information Coalition and a member of SPJ’s FOI committee, said he’s concerned that shrinking newsrooms will inevitably result in more government corruption.
“There are fewer eyes on the ground now,” Davis said. “There are fewer reporters doing enterprise work that involves FOIA. It’s scary when you think about it.”
Frank said she has seen a shift in the kinds of stories being produced for newspapers across the country. Reporters feel more pressure to produce more stories on a shorter time frame, she said, which means stories that might take longer to unravel often get pushed aside.
“For the public, it means there are stories that are out there that are going untold. Things that could affect the decisions we make in a democracy, the way we protect our families,” Frank said. “I don’t think any of us really know for sure what the effect of that will be. But it’s not good.”
Although nonprofit watchdog and citizen groups have largely filled any slack on the federal level, Davis and other journalists fear local newsrooms won’t have the dollars or manpower to use FOIA effectively. And there’s no doubt in Davis’ mind that less media scrutiny will result in greater corruption.
Journalists have already reported anecdotally that more records requests have been denied than before. David Cuillier, chairman of SPJ’s FOI committee, said many newsrooms can no longer afford to pursue legal action when a FOIA request is denied, and some government officials have recognized this. The result, he said, will be more secrecy and denials.
Frank said that when she was a reporter at the Rocky Mountain News, she noticed that the threat of a lawsuit didn’t have the same effect on government officials as it once did. Those who formerly may have buckled under the possibility of legal action when withholding public documents now challenge the reporters who threatened to sue, she said.
“They knew media organizations weren’t spending the money,” she said.
But even though newsrooms may not feel they have the funds to pursue a legal battle, it’s more important than ever for journalists to continue their watchdog role in government, Cuillier said.
Sarah Cohen, a former database editor at The Washington Post and journalism professor at Duke University, said that if news organizations fail to place an emphasis on open-records fights, they lose their value as the public’s watchdog. Cohen said she thinks most editors are hesitant to commit to an expensive legal battle, although few would admit it.
“In the newspaper industry, everyone has pretty much acknowledged it’s really hard to sue right now,” Cohen said. “When you’re laying people off, (finding funds to litigate) is hard.”
Anfinson said conversations with media executives lead him to believe that media organizations are not hesitant about pursuing FOI battles. Rather, the option to litigate largely has been taken off the table.
“It’s a reluctant sacrifice, but it’s a necessary one,” he said. “Although every news organization I have ever worked with regards public access as an extremely important priority, in a world of limited budgets, something has to give.”
Attorney Jacqueline Klosek, author of a citizen’s guide to U.S. FOI laws, said it’s disconcerting for her to see media organizations failing to pursue open-records denials.
“Now is precisely when the public needs more information,” she said. “We are facing historically significant, challenging times. There is lots of money flowing all over the place. People need accountability from the government.”
For journalists tight on time and dollars, Cuillier suggests keeping a running list of records to request each month, such as expense reports, budgets and inspection records. Although he knows it’s difficult to persuade time-strapped reporters to make FOI a priority, it doesn’t take long to file basic requests — and can provide weeks worth of material.
“It’s a reality that there are a lot of obstacles to good, in-depth reporting,” Cuillier said. “But I think journalists can do some great reporting and help their community by getting in the habit of requesting records.”
Davis said he views FOIA requests as a cost-effective way to produce news, while providing the level of scrutiny required of the media.
“Some of it isn’t very exotic; it’s very nuts-and-bolts beat coverage,” he said. “But it’s good hard-news stuff. It doesn’t necessarily have to be god-awful boring stuff. It gets us back to the sweet spot on what we ought to be doing anyway.”
Anfinson agrees, saying that although the money may have disappeared, the law still exists. It is up to journalists to know their legal rights and be prepared to fight for what they know is legally theirs, he said. If they don’t, government officials will continue to become increasingly emboldened to deny requests.
“That can’t happen,” Anfinson said. “The public will be the loser.”
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