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, crime 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 by 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. However, most do not have funds for legal support when denied access or when asked to pay unreasonable fees, even in obvious cases.
But this about to change.
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 an investment by the John S. and James L. Knight Foundation. The Tennessee Coalition for Open Government, along with some news organizations in Memphis, made the application for Tennessee. (TCOG’s membership includes major news associations, including the Tennessee Press Association and the Tennessee Association of Broadcasters.)
One of the reasons the Reporters Committee chose Tennessee is because enforcement of the law is so difficult. In Tennessee, the only way to enforce the public records and open meetings laws is to file a petition in the courts. Unlike 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, to death records of children in state custody by The Tennessean, to court filings in an opioid-related lawsuit by the Knoxville News Sentinel.
But many journalists 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 may need to hold their bullets.
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 suit in which it insisted it could deny public records requests unless the requester appeared in person or mailed the request via the U.S. Postal Service. The local court and the Court of Appeals sided with the requester, who had made his request via email and a followup phone call. But to win this point, the requester had to pay all of his own legal fees.
These factors are why access to pro bono legal support is so critical.
Some of the top problems faced by journalists in Tennessee are government entities’ overly broad interpretations of statutory exemptions, including from the state Attorney General’s Office; 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 shield 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 and heft to make a difference in our state.