It is no longer front page news that the 2008 recession has been unkind to the media. Print ad revenue, which peaked in 2005, has dropped 65% though 2015. In 2001, the U.S. newspaper industry employed over 397,000 people. By March, 2016 that had declined to a little over 183,000. In early September, the American Society of Newspaper Editors announced it would no longer count total job loss in American news rooms.
In addition to the economic hardship these events have caused, they have also had an indirect, but substantial, effect on the ability of media entities to engage in litigation to gain access to public records, contest sealing orders and challenge Sunshine Act violations by government agencies. Although government agencies have also faced budget concerns, many have the ability, with taxpayer supported solicitors, to outlast a single media entity mounting such a challenge. The economic impact of the last eight years combined with the courts’ reluctance to award legal fees in successful media challenges has made it nearly impossible for a single media entity to sustain a prolonged fight when faced with legal fees and costs in the tens or hundreds of thousands of dollars. Recognizing this, certain government agencies have adopted a strategy to continually delay or appeal decisions in such cases, sometimes assisted by individuals or business entities with an interest in thwarting disclosure of such records.
However, in recent years, the media has recognized that there is strength in numbers. By joining forces, media entities have formed successful coalitions in challenging withholding of public records, Sunshine Act violations and sealing of court records. Not only do such coalitions signal to the government agencies involved that the issues are significant to a large number of readers/viewers, but they also send a strong message that the media organizations are serious and can sustain prolonged litigation if necessary, without the severe economic impact of mounting such a fight alone. Two recent examples illustrate this point.
On October 29, 2011, portions of central and eastern Pennsylvania were hit by a severe snowstorm that left approximately 388,000 PPL customers without power, many for a prolonged period. Upon learning that the Public Utility Commission (PUC) had received an anonymous letter that power may not have been restored by PPL in compliance with PUC restoration protocols, reporters from The Times Leader and The Morning Call discovered that PPL had entered into a $60,000.00 confidential settlement with the PUC as a result of the investigation sparked by the “tip letter.” When these reporters submitted requests to the PUC for the letter and accompanying investigation materials, the PUC denied their request, providing only a copy of the actual Settlement Agreement between PPL and the Position Statements of PPL and the PUC.
On appeal to the OOR, the OOR granted access to the letter and the investigation materials except to the extent they may identify the anonymous informant. The PUC appealed and PPL intervened. Recognizing that appeals would now go to the Commonwealth Court which would require extensive briefing and argument on issues of first impression, The Times Leader and The Morning Call banded together with nine other media entities, including among others, The Patriot News and LNP Media Group to challenge the appeals. The Commonwealth Court reversed the OOR decisions, denying access to these records. Believing that the issues were significant, this coalition of media organizations authorized its counsel to file an appeal to the Supreme Court. Review by the Supreme Court was granted and in May 2016, the Supreme Court reversed the Commonwealth Court and ordered the release of the letter and accompanying investigation materials from the PUC, recognizing that a provision of the Public Utility Code granted broader access independently of the Right to Know law. The various appeals took approximately three years. In addition, after release of the documents, it became known that a PPL high level executive had contacted PPL’s call center after the storm and had power restored to his neighborhood ahead of other priority locations. The ability of the coalition to spread the cost of the appeals among its various members allowed the sustained challenge to the PUC’s refusal to release the records.
The second example involves the unsealing of records. In a dispute between the Pennsylvania State University and one of its insurers, Pennsylvania Manufacturer’s Association, various filings submitted by PSU had been sealed at its request, allegedly to protect the identity of victims and related testimony arising out of the Jerry Sandusky scandal. An earlier decision by the Court of Common Pleas in Philadelphia had indicated that allegations of abuse may have been made to PSU officials earlier than had been previously known. Since an earlier order of the court had indicated that, although selected documents may have been sealed at the request of PSU, they may not remain sealed, a coalition of four media entities comprised of PA Media Group, The Associated Press, The Pittsburgh Post Gazette, and the Philadelphia Media Network joined forces and filed a Motion to Intervene in the proceeding and to unseal the previously sealed records. Although faced with an opponent of substantial resources to fight such a request, the coalition of media entities, after a hearing before the court, was successful in obtaining an order from the court unsealing all of the previously filed records with very limited redactions. Although any one of these media entities may have been able to mount this challenge on its own, the obvious economic benefit of working together was coupled with a display to the opposing parties and to the court, that the issue was of such significant public importance, media entities from across the Commonwealth engaged in the litigation necessary to unseal the records and that their combined resources would be sufficient to pursue and sustain the challenge needed.
Although politics may make strange bed fellows, economic necessity can as well. As the financial challenges facing the news media are more than likely to continue, the benefits of media coalitions to challenge the lack of transparency by government agencies, private parties and business entities will continue to be a valuable tool available to the media. More importantly, such coalitions will allow the media to continue to provide the public with important information to which it is entitled and to continue to fulfill its mission as the eyes and ears and, when necessary, the legal “muscle” to challenge those who would seek to withhold such records to which the public is entitled.
Craig J. Staudenmaier is the Chair of Nauman Smith’s Media and Right to Know Practice Group. He will make a presentation at the PNA Annual Convention on November 4, 2016 on “How to Form and the Benefits of Media Coalitions” along with Melissa Melewsky, PNA’s General Counsel.