MIAMI, FL — The Jacksonville-based Florida Times Union is a rare outlier these days, a mid-sized regional paper willing to fight big open-government battles even as most media organizations cut back on the resources they devote to forcing officials to do their work in public.
The paper has been aggressively enforcing the state’s expansive Sunshine Law, going to court in three cases over the past year to compel officials to open meetings and court proceedings and release records.
At times, the paper has mounted these battles to get key information for a major article. In other cases, they took on a fight even when editors and reporters expected no story would result. They did it on principle.
“We’re teaching government officials they can’t throw the public out of public meetings and they can’t withhold public records,” Frank Denton, the Times-Union’s editor, told me. “If there is a perception out there that the media is weak because of what has happened in the newspaper industry, we’re letting them know that we’re still here, we’re still strong, and we’re still raising hell.”
This is the role that newspapers, with their fat profit margins and focus on accountability journalism, traditionally played. But in the face of dramatic revenue declines over the past decade, papers have become choosier about the fights they take on. A recent survey of watchdog groups and media lawyers by the National Freedom of Information Coalition and the Media Law Resource Center found “a substantial decline over the last two to five years in the amount of resources devoted by media organizations to FOIA and open government issues.”
The Times-Union, with a daily circulation of about 82,000 that makes it the seventh-largest paper in the state, sometimes punches above its weight and delivers stories with statewide impact just by footing the bill for public-records requests. But the paper is not shy about going to court either–in the past year the paper has spent more than $350,000 on legal fees, according to Denton–and it’s scored a string of recent victories. Just over the past few months:
- The paper successfully forced the Florida Department of Education to release the controversial data being used to measure teacher effectiveness. The Times-Union had to take the case to a state appellate court before the records were released. The paper published the data and sought public feedback to advance a debate over whether the assessments were fair.
- A state court judge sided with the paper when he ruled that the city of Jacksonville and its Police and Fire Pension Fund had violated open-meetings laws, using a federal lawsuit as cover to conduct negotiations that were required by state law to be public. The paper pursued the case even after the city council rejected the agreement the mayor and pension officials had reached in private. And with the local public-safety unions preparing to appeal the ruling, the paper is ready to keep fighting.
- In the high-profile trial of Michael Dunn, a white man who killed a black teenager, the Times-Union and other media organizations won three separate appellate court rulings, forcing the judge to release public records and hold jury selection in public. The judge ultimately selected the jury at a bench conference, making it impossible for the media to hear the proceedings. Though the trial is over, the paper has taken that back to the appeals court, concerned about the precedent it might set.
The paper’s pugnacious posture won praise from RonNell Andersen Jones, a media law professor at Brigham Young University who has studied the decline in litigation to enforce open government laws.
“Newspapers were the leading figures… in most of the constitutional jurisprudence that went to the Supreme Court in the 1960s, 1970s and 1980s,” Jones said. She pointed out that the top court’s 1984 ruling that jury selection must be open to the public came in a case filed by The Press-Enterprise of Riverside, CA, back when even smaller regional papers saw themselves as key players in these battles.
As newspapers have become less active, “there’s no real successor to that other role of instigation and enforcement of open government laws,” Jones said. “There’s a serious risk of retrenchment once newspapers are longer able to fight the fight.”
She was particularly impressed with the Times-Union’s work, because it was fighting not only for information that would end up in stories, but also to uphold the state’s Sunshine Law and set strong precedents.
“The litigation on principle, that’s a dying art,” she said. “…That’s just them being the long arm of the open meetings law. For a newspaper of that size in the current climate, that really is a remarkable investment in open government. That’s a real rarity today.”
Sam Terilli, former general counsel to The Miami Herald and a professor of media law at the University of Miami, agreed there has been a decline in the amount of open government litigation being filed by newspapers over the past 20 years, particularly in cases filed to uphold a principle.
“Across the business, newspapers have had to make adjustments,” he said. “As much as I think litigating issues on principle is important, it’s hard to do as much of that when you’re struggling to find the resources to cover the local school board or city council.”
He recalled complaining about budget cuts in the early 1990s. “Now, looking back, those were the golden days,” he said.
The Times-Union has won praise from other quarters. The paper and Denton himself were recently awarded the James C. Adkins/Sunshine Litigation Award by the Florida-based First Amendment Foundation. The award has only been given twice since 2009, and in the past it has gone to media law attorneys. Denton was personally honored because he served as the plaintiff in the pension lawsuit. Florida law requires open meetings suits be brought by Florida citizens and the Times-Union’s owner, Morris Communications, is based in Georgia.
Denton told me last week his publisher–which hasn’t recovered legal fees in any of these cases yet, though it’s seeking to do so–has fully backed the paper’s efforts. Not everyone feels the same way, of course. Last June, when the pension-talks lawsuit was filed, Denton explained the paper’s thinking to readers:
We do not like suing our own city, including the mayor whom we endorsed for election. It costs us money, it costs the taxpayers money to defend, and it distracts all of us from addressing important public issues, including the police and fire pension plan that is draining the city budget and starving other public needs.
But the lawsuit is not about the substance of the proposed settlement or about the provisions, costs and benefits of the pensions being earned by our police officers and firefighters.
It is about a much more important principle: the right of citizens to watch and, if they wish, participate in the resolution of public issues–in this case one that involves hundreds of millions of taxpayer dollars and the welfare of, and our fidelity to, our community’s first responders.
This is a battle Denton’s been fighting for 40 years. In the column, he recalled how he had sworn out a criminal complaint against the entire board of trustees of a local public hospital for violating the open meetings law back when he was a cub reporter at The Anniston Star in Alabama.
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This post has been updated.
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Susannah Nesmith is CJR’s correspondent for Florida, Georgia, and Alabama. She is a freelance writer based in Miami with more than 25 years working for regional and national outlets. Follow her on Twitter @susannahnesmith.