FOI Summit: FOI Litigation

Lucy Dalglish, executive director of Reporters Committee for Freedom of the Press (clockwise from top), Andrea Flynn Mogensen, sole practitioner specializing in open-government litigation, Ashley Messenger, media lawyer, and Ginger Stanley, executive director of Virginia Press Association/Virginia Press Services, Inc., spoke about the state of the news media economy and the cost of litigation. (Photo by Michael T. Martinez)

The FOI Summit session "FOI Litigation" discussed the state of the news media economy relative to FOI advocacy and the Knight FOI Fund. Here are notes from the session:

• Dalglish expressed the concern that news organizations aren't paying for litigation and precedent now, but are simply trying to stay alive. She is concerned that local governments have figured out that the news media cannot afford to fight for public records. Dalglish reminded attendees, "You have to get involved in the process, nobody else is going to take care of it."
• Stanley said she works to help build coalitions of organizations that will fight for FOI access and share litigation expenses. Stanley said the true danger of not challenging public bodies on their interpretations of the law is that we end up with law with no teeth.
• Messenger said reporters still find it is easier to get a document leaked from an internal source than to request the same document through a public records request.
• Messenger challenged news organizations to fight for access on principal as a way of establishing credibility for the organization. She commended the Fredericksburg Free Lance-Star for training its reporters on the law, encouraging reporters to make public records requests, and backing up its reporters when requests are denied. Messenger said thinking of FOIA as part of the business plan not only establishes credibility, but it also minimizes fights on future responses as the governmental entities know that the news organization will fight for public records access.
• Messenger said the most common error she sees are poorly drafted public records requests. She said requests must be strategically planned and narrowly defined. She said reporters and news organizations must be mindful of the costs associated with requests for e-mails and text messages.
• Mogensen acknowledged that the battle of resources is often what is at stake in FOI litigation. She said fee-shifting statutes are a powerful tool for citizens. The panelists discussed the need for lobbying efforts to allow for fee-shifting in states where it is not required or in Louisiana, where the unsuccessful FOI litigant must pay for the government's litigation expenses as well.
• Regarding privacy concerns in public information, Stanley suggested government does not need to collect so much information about people; instead, the government should collect only information that is necessary and required by law, she said. As a press association, Stanley said she tries to ease fears that the media will help identity thieves, but said governmental agencies should keep basic information like names, addresses, and partial social security numbers open to the public.
• Dalglish urged news organizations to include daycare center operators, employers, landlords, and information businesses like Lexis and Westlaw in suits where the practical obscurity argument arises.