From the Fall 2009 issue of The News Media & The Law, page 16.
When the District of Columbia denied WTOP Radio reporter Mark Segraves’ Freedom of Information Act request for mayoral expense and travel records in February, the investigative reporter would have welcomed some assistance in appealing the denial.
“Recently it has become apparent that there is a need to litigate FOIA more now than there was before, but there just isn’t the money to do that,” Segraves said.
As circulations decrease and newsroom and radio station budgets dwindle, it’s become increasingly difficult for news organizations to pursue what can often be protracted and expensive disputes over refused public records requests. In response, a few law schools have stepped in to guide citizens and groups through the open records process.
“Other institutions have to pick up the slack and one of the alternatives is NGOs and law schools,” said Terrance A. Norton, the director of an open government clinic at Chicago-Kent College of Law.
A full-blown clinic is already up and running at Chicago-Kent College of Law. The Center for Open Government — the brainchild of Clinton Krislov, an adjunct professor and plaintiffs’ class-action attorney — is a part of the school’s clinical education program that helps citizens gain access to local and state government records and proceedings.
Chicago-Kent law students, with the help of supervising professors, will represent records requesters free of charge. The center will primarily handle cases dealing with violations of the state’s open meetings and public records laws, which were revised earlier this year after a spate of recent state scandals that showed a lack of government transparency, according to the law school’s press release.
“If laws are there for our benefit, we should be able to get all information necessary to find out what appointed and elected officials are doing with our tax dollars,” Norton said.
Though the center just opened in September, students already have several cases in the works. One woman from a local suburb sought help from the center after the village board of trustees, in a closed session, laid off 11 employees including her husband, a firefighter. The center will help her litigate what it argues is a violation of the state Open Meetings Act. Another client is a man seeking access to financial records from the Illinois High School Association to determine whether there are gender disparities in the funding of sports programs. IHSA, like the National Collegiate Athletic Association, has claimed it is not a public body and therefore not subject to open records laws.
Norton, a former Chicago-Kent professor who has handled open government cases for more than a decade, says that in addition to supplementing the open records lawsuits filed by media organizations, the clinic will close a gap in the nonprofit world. Eventually, it could expand to take on other issues, like whistleblower cases.
There are lawyers for minority groups, for those who are evicted from their homes, the developmentally disabled, victims of age discrimination, “but no lawyers to represent citizens who want to play a proper role in democracy, to move the levers of power,” Norton said. “I think there is a need for citizens to have representation in whatever context.”
The concept is promising, said David Tomlin, associate general counsel for the Associated Press. “Everyone is concerned now with pressure on budgets, and on personnel and staff time, that news organizations are going to do less litigating and less pursuing legal remedies in the area of First Amendment, open records and open meetings,” he said. “It is clear that creative solutions are called for and this could be one of them.”
Though Chicago-Kent’s legal clinic is currently the only of its kind, other schools are also preparing students to litigate public records cases. At Yale Law School, students in its pracicum on media freedom, which is offered as an externship, are paired with practicing media lawyers and prepared to handle both state open government and FOIA cases at the federal level. “We are hoping it will be a really important institution for promoting media access to government information,” said Jack M. Balkin, Yale’s Knight Professor of Constitutional Law and the First Amendment and an adviser to the practicum.
Yale law student Nabiha Syed developed the idea for the practicum with a colleague after participating in a Yale clinic on balancing civil liberties and national security after 9/11. Balkin helped establish the program and connect students with media-law mentors.
“I care about the growing culture of secrecy in the law and this is what we need to go after. That was the push we needed to create the project,” Syed said.
David Schulz, of Levine, Sullivan Koch & Schulz LLP in New York, supervises Syed’s work and says that all types of journalists, from the solo blogger to the mainstream media, have shown an interest in working with the law students to resolve their disputes.
“The Yale program is very encouraging because there is a huge need for legal expertise as more and more journalists are working as independent bloggers or for online sites where they lack the resources of a larger organization,” Schulz said.
As with Chicago-Kent’s program, Yale’s externship practicum is new this school year. Yet Syed has already been involved in four cases, including a whistleblower’s appeal contesting a motion to seal exhibits in the case. She hopes other universities follow suit and get students involved in FOIA issues.
“There is a pressing need for law schools to take up this mantle,” Syed said.
William G. McLain, an associate professor at the University of the District of Columbia’s law school, agreed that law students can play an important role in FOIA litigation.
McLain first introduced his students to public records issues during a class on disaster and the law that dealt with the aftermath of Hurricane Katrina, including examining the issues surrounding the drowning deaths of inmates at a prison in New Orleans.
McLain’s students filed a FOIA request with the District of Columbia’s corrections department to find out whether Washington was any better prepared if a similar disaster occurred. The request was denied, citing homeland security concerns, and the appeal is pending in the D.C. Superior Court.
“These agencies [in the district] know that they can just stiff requesters and they’ll just go away because they don’t know what else to do. There is a need for representation and someone needs to step in and fill it,” McLain said.
So McLain is preparing to meet the need and open a full-fledged public records clinic. Though the plan is still in its formation stage, he anticipates a strong interest from both colleagues and students — and estimates that given the district’s high rate of records denials, there could be more cases than the clinic can even handle.
“It’s really an idea that’s time has come and if it hasn’t come, it ought to immediately,” McLain said.