New legal support will help reporters fight for public records in Tennessee

Tennessee has a rich news media environment with more than 120 traditional subscription-based weekly and daily newspapers, several free newspapers, alternative press, an established black press, 34 television news stations, public and commercial radio stations, niche news outlets focused on single topics like education or the legislature, business journals, a new nonprofit news organization in Memphis, a new university-based Institute for Public Service Reporting also in Memphis, independent student-run college newspapers and TV stations, and a variety of one- or two-person digital-only shops run on grants, grit or both. 

All of these news outlets utilize our public records laws, open meetings laws and rights to court records and proceedings for investigative reporting and to simply report on public business. 

They are the public’s eyes and ears. However, most do not have funds for legal support when denied access to government information or when asked to pay unreasonable fees, even in obvious cases.  

But this about to change.

Reporters Committee will fund free legal support for journalists

The Reporters Committee for Freedom of the Press, a 50-year-old national organization known for its leadership in supporting journalists, announced this week that it will fund an attorney in Tennessee to provide local newsrooms with direct legal services, including fighting for access to public records.

Tennessee was one of five states selected for RCFP’s Local Legal Initiative program, which is funded by a $10 million investment by the John S. and James L. Knight Foundation to strengthen local journalism. 

TCOG, along with some news organizations in Memphis, made the application for Tennessee. (TCOG’s membership includes major news associations, including the Tennessee Press Association, the Tennessee Association of Broadcasters and local chapters of the Society of Professional Journalists.)

Litigation needed to force government to honor public records law

One of the reasons the Reporters Committee chose Tennessee among 45 applicants from 30 states, regions and territories is because enforcement of the public records law here is so difficult. In Tennessee, the only way to enforce the public records and open meetings law when a government entity refuses to follow it is to file a petition in the courts. Unlike in other states, there is no administrative appeals process and no automatic attorney fee award even if a journalist prevails. This makes the process an expensive option for journalists and citizens alike.

The news media has gone to court for decades to defend the public’s right to know and to gain valuable public information for reporting. Some recent notable cases have included fighting for access to state agency travel and credit card records by NewsChannel 5 in Nashville, for death records of children under state supervision by The Tennessean, and to court filings in opioid-related litigation by the Knoxville News Sentinel.

But I’ve also talked to many journalists who walk away from what is likely a winnable court fight simply because they don’t have the funds to challenge the government entity. Even those news organizations with legal resources have to pick and choose the fights they can fund.

Some government entities, on the other hand, seem to operate as if they have seemingly endless resources. 

The Sumner County Board of Education spent almost $250,000 of taxpayer money defending a public records lawsuit after refusing to turn over an essentially one-page policy document because the requester made his request by email and a followup phone call instead of appearing in person or sending the request via U.S. Postal Service. Such unreasonable antics were rejected by the local court and the Court of Appeals, but the entrenchment demonstrates the lengths some government officials will go to get between the public and public information. The requester? He had to pay all of his own attorney fees to win the point for the public.

Journalists must challenge interpretations keeping government records secret

These factors are why access to pro bono legal support is so critical. Journalists need public records and court records to do their job, yet the obstacles are many.

Some of the top public records problems faced by journalists in Tennessee are government entities’ overly broad interpretations of statutory exemptions, including by the state attorney general’s office; overuse of the “investigative exemptions” to shield what should be ordinary administrative public records; excessive delays in production of public records; the refusal to provide access to government electronic data in data format; unreasonable fees for copies of public records; and, recently, application of a “deliberative process” exception to shield state agency records, including written recommendations by these agencies on top public issues to the governor.

Our organization also has noticed questionable claims of trade secrets to keep secret how much government is paying for services or giving away in economic development contracts.

News organizations need resources to fight for the public’s right to know.

The Reporters Committee for Freedom of the Press has the experience, history and heft to make a difference in our state.

Deborah Fisher is executive director of Tennessee Coalition for Open Government, a nonprofit which provides education and advocacy for the public records and open meetings laws.

What do you think?