Inside well-funded newsrooms, investigative reporters can usually turn to company lawyers for help with stalled public records requests. But independent freelancers don’t have that luxury, and many can’t afford to hire legal counsel on their own. So when the time comes to stop asking the government for public records and start demanding them, what can a low-to-no budget freelancer without legal counsel do?
To start, it’s possible to act as your own attorney and sue for access to information without the benefit of legal counsel—a tactic called pro se representation. Over the past few years, as the U.S. economy has taken a nosedive, more and more people have elected to save on legal fees by representing themselves in court. “It’s generally a bad idea for people to represent themselves in court, period,” said Geoff King, Northern California’s SPJ FOI committee co-chair and a former staff attorney for the First Amendment Project. King, ever the comedian, quoted an adage to me via e-mail: “A man who is his own lawyer has a fool for a client.” Still, when it comes to FOIA-related lawsuits, there are plenty of resources out there to prevent pro se litigants from looking silly.
Tools like Litigation Under the Federal Open Government Laws 2010, a comprehensive 711-page guide to access laws, make it relatively simple to get a good idea where to start when assembling a knowledge base about all things related to FOIA suits. The book, which is updated every two years, covers everything from case law to filing fees. FOIA-specific complaints, which can be modified and used as templates, are readily available at sites like the Electronic Frontier Foundation’s FOIA Litigation for Accountable Government (FLAG) Project. The FOIA Project, a searchable database of FOIA-related filings compiled by the Transactional Records Access Clearinghouse (TRAC) and Document Cloud, links to hundreds of court documents from FOIA suits.
Creating a viable complaint requires time and legal research. A number of basic pro se resources exist online, including the Self-Represented Litigation Network and SelfHelpSupport.org, which hosts a legal library and boasts a community of 4,000 people who have experience representing themselves. Legal blogs like Shlep: the Self-Help Law Express can help you decide whether or not self-representation makes sense.
Thus far, journalists without lawyers have both succeeded and failed in court. Website publisher June Maxam of the online North Country Gazette represented herself after being quoted a price of $7-10,000 for professional legal representation.
“We could not afford that amount of money,” Maxam told me via e-mail. “Each attorney we had consulted told us [our case] should be a “slam dunk” because of case law precedent, and we had two supporting formal opinions from the NYS Committee on Open Government, but no one would help us pro bono . it was decided to proceed pro se rather than drop the issue.”
Maxam and her co-plaintiff, a local government official, won their case—sort of—in January after filing a suit in September 2011 demanding access to records kept by a local volunteer fire department. The judge ruled that the requested documents had to be turned over, but that the fire department’s meetings weren’t subject to New York’s Open Meetings Law. Appeals for the case, which Maxam says was her first related to public records, are now being heard.
“Just because you’re right and have the law on your side doesn’t mean that you’ll get a ruling in your favor,” Maxam warned. “If you’re not prepared for a fight, then don’t file.” Costs related to her suit were defrayed by a grant from the Knight Foundation’s FOI fund, which provides aid to FOIA litigants.
Ellen Smith, managing editor of the award-winning watchdog website Mine Safety and Health News, considered filing a FOIA suit pro se in U.S. District Court, but decided against it. “It was too complicated and, quite honestly, stressful,” she said. “I started getting everything together (and had sample filings so I could use similar language, but fill-in-the-blanks) when [attorney] Drew Shenkman from Holland and Knight took my case for me. It was a huge relief.”
Even with professional counsel, Smith says, the suit still took up a lot of her time. The day before her court filing was due, the government made a “substantial” release of information, rendering the previous legal efforts more or less worthless.
Others have succeeded by initially filing suits themselves, and then later retaining professional counsel as the suit progressed. Current Miami Herald contributor and librarian Theo Karantsalis, of Florida, began a suit pro se suit against the Department of Defense and the Air Force that later resulted in a victory and records being handed over. The Associated Press detailed his attempts to get information.
Steve Aftergood, director of the Federation of American Scientists Project on Government Secrecy, has represented himself twice in lawsuits related to requests for information related to federal intelligence budgets. Previously, he received professional counsel from Kate Martin of the nonprofit Center for National Security Studies.
When Martin was unavailable to help with his most recent requests, Aftergood decided that representing himself in court would be “an interesting challenge.” He used the previous filings as a template, since there were both content and case law overlap.
“Even so, it was necessary to do a fair amount of new legal research, and to get acquainted with the rules of procedure,” he said. “I spent quite a bit of time at law libraries, copying old cases and studying them. Pro se litigants should understand that, in courts of law, what you need in order to win is a compelling legal argument. Passion or eloquence (or self-righteousness) is no substitute, and may actually work against you. ‘I really want the document, and I think I am entitled to it’ is not a legal argument. You have to do the research, and to make the case. If you can do that, then you have a chance.”
Prospective litigants should also carefully consider the potential downsides of litigation, Aftergood says. “If they lose their case, they may not only lose time and money,” he told me. “They may also generate adverse rulings that will become part of the legal landscape and that will make life more difficult for future litigants. The fact is, litigation is not always the right move.”
For Aftergood, the hard work ultimately paid off. Though he lost one of his two suits, a judge ruled in his favor and against the government in the other. “For me,” he said, “it was a powerful antidote to cynicism about FOIA and about the legal system.”