File an FOI request? You could get sued!

September 20, 2017 01:30

By Dan Shelley, RTDNA Executive Director
Last week, my first week as your new Executive Director, I spent some time at my alma mater, Missouri State University in Springfield, which has a thriving journalism program that I think – from my biased perspective as an alum – could rival those of universities traditionally lauded as having the best J-schools in the country.
One of the things that really impressed me was MSU’s The Standard, the weekly student newspaper. There were two stories on the front page: One reported on a student walkout in support of DACA recipients (“Dreamers”), and the other was a well-reported story about an alleged rape in one of the school’s dorms.
Wow, I thought. That never would have happened when I was a student here. At that time, The Standard was nothing more than a public relations rag for the university and, especially, the university president’s office. Reporting on a student walkout would have been discouraged, to say the least. Covering a rape on campus would have been strictly forbidden.
I was even more impressed when Dr. Shawn Wahl, the interim dean of MSU’s College of Arts and Letters, told me that it is written into the newspaper’s bylaws, with the approval of the administration, that the university may not exercise any editorial control over the publication. The student journalists, assisted by a faculty adviser, are free to cover whatever they choose, however they wish, but they face the same public scrutiny as any professional news organization.
I’m sure MSU’s editorial hands-off policy isn’t unique. But I’m extremely concerned by the apparently growing number of colleges and universities that are suing their own student newspapers when those papers – and, in some cases, university-owned radio and television stations – file Freedom of Information requests.
And it’s not just universities suing their own student-run news outlets. It’s government bodies and agencies across the country that are adopting the modus operandi of filing lawsuits against journalists, and members of the general public, who have the audacity to submit FOI requests.
In a lengthy Associated Press story that’s getting a lot of attention in FOI circles this week, correspondent Ryan J. Foley reports:
Government bodies are increasingly turning the tables on citizens who seek public records that might be embarrassing or legally sensitive. Instead of granting or denying their requests, a growing number of school districts, municipalities and state agencies have filed lawsuits against people making the requests — taxpayers, government watchdogs and journalists who must then pursue the records in court at their own expense.
The lawsuits generally ask judges to rule that the records being sought do not have to be divulged. They name the requesters as defendants but do not seek damage awards. Still, the recent trend has alarmed freedom-of-information advocates, who say it’s becoming a new way for governments to hide information, delay disclosure and intimidate critics.
Count me as one of those “alarmed freedom-of-information advocates.” You should be alarmed, too.
In May, according to the AP report, Michigan State University sued ESPN, which had the temerity to seek police reports concerning an investigation of alleged sexual assault involving members of the football team.
In April, the Portland, Oregon, school district sued a journalist and a parent who sought records about alleged employee misconduct.
In January, a judge ruled in favor of the University of Kentucky, which sued after its student newspaper requested records related to an investigation of a professor who’d resigned after allegedly groping students. The case is on appeal.
At the same time, Western Kentucky University is suing its student newspaper, which is seeking records on alleged sexual impropriety among some university employees. That’s despite the fact the state attorney general has issued an opinion stating such records should be public.
RTDNA has always been a fierce champion of journalists’, and others’, right to access public documents. Today, our Voice of the First Amendment Task Force is condemning the efforts of some government and other public institutions to use the courts to intimidate and harass reporters and members of the general public who are merely attempting to exercise their lawful rights to obtain public information.
If you encounter obstacles gaining access to open public records, please let us know by sending the information to We stand ready to support you in any way we can.
In the meantime, here’s a message to public officials all across America: Why don’t you follow the lead of my alma mater, MSU, and let student journalists be journalists. And oh, by the way, why don’t you stop suing journalists and others simply because they have the courage to ask you for information that should be public.
RTDNA formed the nonpartisan Voice of the First Amendment Task Force early this year to defend against threats to the First Amendment and news media access, and to help the public better understand why responsible journalism is essential to their daily lives. It is a founding partner of the U.S. Press Freedom Tracker, the archive of record for threats to press freedom in America.