More than nine months into the Russian invasion of Ukraine, the online methods for tracking this war are many and proliferating, including the most obvious source of all: social media networks. From the missile attack on a mall in Kremenchuk to mass graves in Motyzhyn, many reporters have relied on open-source investigations (OSI) — or the use of publicly accessible sources, like satellite imagery and social media posts — to expose Russia’s crimes in this war.
Though the war in Ukraine has been exemplary of OSI, open-source newsgathering is becoming integrated into journalistic practice as a standard reporting technique, particularly at investigative outlets.
Nieman Reports’ Winter 2023 takes a look at how open-source investigations are becoming a mainstay in the digital age, and the newsrooms that have taken the lead in incorporating OSI into their reporting.
In 2021, Louisiana Attorney General Jeff Landry sued Andrea Gallo, a reporter for The Advocate and The Times-Picayune, for requesting access to public records related to sexual harassment complaints against the head of the state AG’s criminal division. Asserting privacy concerns, Landry asked a judge to seal the court proceedings and to issue a declaratory judgment effectively denying Gallo’s request and requiring her to cover the government’s legal fees.
The lawsuit came after the AG’s office said it would release the records, then said it would not release the records, and finally declined an invitation from the newspapers to redact the records to address legitimate privacy concerns. By then, the subject of the complaints, Pat Magee, had been formally disciplined for engaging “in inappropriate verbal conversations” in the workplace and making unprofessional comments about the appearance of coworkers. He later resigned.
In response to the AG’s lawsuit, Advocate editor Peter Kovacs told The Washington Post that he was worried it would have a chilling effect on open government. “If a citizen filed a public records request and then was sued and had to pay the legal fees of the agency that requested it, you would have a lot less citizens feeling comfortable filing public records requests,” he said. “It becomes an intimidation measure that promotes government secrecy.”
Ultimately, the judge ruled against Landry and ordered the AG’s office to release the records and to pay a portion of Gallo’s legal fees. The case bewildered a lot of commentators, who on the whole hadn’t seen a government official sue a journalist for requesting records. But these actions date back decades, and they’ve been on the rise in recent years, at a time when it’s already too hard to obtain public records. The process is unnavigable or vastly frustrating for many people, in large part because penalties for noncompliance are seldom or sporadically enforced, and long delays and baseless exemption claims are routine.
Taking a wider view, government actions against public records requesters are of a piece with efforts worldwide to interfere with accountability reporting: “fake news” laws that criminalize journalism unfavorable to the government, the weaponization of libel laws to score political points or exact revenge on critics, the spread of pink slime partisan sites that mimic news outlets, and so on. Independent journalism is under duress on multiple fronts, one of them taking the form of lawsuits like Landry’s. Which, again, was far from the first of its kind.
In 2017, for example, Michigan State University sued ESPN for requesting police reports about a sexual assault investigation, and the University of Kentucky sued its student newspaper for requesting records about a faculty member accused of sexually assaulting students. In 2016, a Michigan county sued a newspaper for requesting personnel files of sheriff candidates, and in 2014 the city of Billings, Montana, sued a newspaper for requesting landfill records.
For her part, Gallo said she was fortunate to work at a news organization that could afford to retain a lawyer to represent her. These actions can be expensive to defend, and they can be perilous because a requester might have to pay her own legal fees even if she prevails. Many public records laws allow requesters who sue for access and win to seek fees from the agencies they took to court, but actions against requesters are usually declaratory in form and therefore don’t include fee awards to the prevailing party. This is a threat to traditional news organizations with strained resources, and it’s a special threat to requesters generally lacking resources, like student publications and freelancers.
Actions against requesters also undermine the free flow of information necessary for the press and public, respectively, to monitor and participate in the political process. The Supreme Court has recognized “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open” and that “public discussion is a political duty.” Lawsuits against requesters frequently arise out of information-gathering activities related to important public issues. Suing requesters who are trying to learn more about their government discourages engagement with those issues and the discharge of key political duties.
That’s one reason Patrick File and Leah Wigren, media law scholars at the University of Nevada, Reno, compared these actions to strategic lawsuits against public participation (SLAPPs) in a 2019 journal article. SLAPPs are civil complaints filed or threatened against a person who speaks out on public issues. They’re usually disguised as libel or privacy claims, and they’re not necessarily meant to win on their merits. Rather, they’re meant to harass and deter the target and others from speaking out.
Actions against requesters can have the same minatory effect, and to be clear: They’re not limited to cases involving journalists and news organizations. The Louisiana Department of Education once sued a retired teachers’ union official for requesting school enrollment data; a New Jersey township sued a local gadfly for requesting surveillance footage of government buildings; and a school supervisory union sued a parent for requesting documents revealing why he was banned from school property.
Government officials generally claim that these actions are filed in good faith and that it’s a smart idea for courts to step in right away if an agency’s disclosure obligations are unclear. But the actions frustrate the purpose and design of public records laws, which typically give the requester, alone, the choice of filing a complaint and assuming the burdens of litigation. The laws don’t authorize a government agency to preempt that choice and put those burdens on a requester, robbing her of the right to decide how to address an agency’s denial (e.g., she might walk away or initiate an administrative appeal, or she might sue or seek the assistance of a public records ombudsman or mediator).
More broadly, although judges normally do dismiss them, actions against record requesters are a worrisome exemplar of the resources that the government expends to try to avoid press and public scrutiny. That’s dangerous for democracy because information access is critical to inclusive knowledge societies, and government transparency improves civic participation, public trust, and financial management, all while reducing corruption. For these reasons, it’s essential for requesters to fight back if sued by the government. They should seek the complaint’s immediate dismissal as well as legal fees (if available), and news organizations should report and editorialize to educate their audience about the public interests and implications.
As Bruce Brown, who directs the Reporters Committee for Freedom of the Press, said about the Landry lawsuit: “No journalist should be sued simply for requesting that government officials release records, particularly those that shed light on an issue that is of … intense public interest and importance. Disclosure of public records is an essential part of keeping communities informed.”
Jonathan Peters is a media law professor at the University of Georgia, where he is also the chair of the Department of Journalism. He has written for Vanity Fair, Esquire, The Atlantic, Sports Illustrated, and Wired, among others.
