Next Tuesday, July 17, is a big day for the Sacramento News & Review and for the future of investigative reporting in California. That is the day the California Third Appellate District Court of Appeal will hear arguments in the lawsuit filed against the News & Review by former Sacramento Mayor Kevin Johnson.
The News & Review is asking the court to reverse a lower court ruling that the newspaper is not entitled to attorney’s fees for the cost of responding to the mayor’s lawsuit against the newspaper when we pursued a public information request.
In 2015, the News & Review and The Sacramento Bee both filed routine public information requests asking the mayor to disclose emails regarding city staff’s involvement with Johnson’s personal work with the National Conference of Black Mayors. We suspected, and the released emails revealed, that city staff were spending a considerable amount of time working on the mayor’s project to take control of the organization.
Instead of just providing the requested emails, Johnson sued the newspapers and the city of Sacramento, saying the public information request could violate his attorney-client privilege. Threatened with a lawsuit, The Bee backed out, leaving the News & Review alone to defend this public records request in court.
As it turned out, a mayor suing a newspaper over a public information request received much national publicity. Partly as a result of that national coverage, Deadspin connected with Mandi Koba and reported that she allegedly received $230,000 in hush money to prevent her from talking about her relationship, when she was 15 years old in Phoenix, with then-NBA star Kevin Johnson. This actually became a bigger story than our discovery of the city staff’s emails and our lawsuit.
I do not like lawsuits. And in over 40 years of publishing alternative newspapers, we have been lucky, in general, to avoid them. But I thought the mayor’s argument was absurd. Public information requests are important tools for getting the information we need to do our job. It’s often the only way to educate the public about what our public officials are doing. Our reporter Cosmo Garvin and then-editor Nick Miller and others spent hours and hours working to uncover this story.
At issue was the public’s right to know about emails sent by employees of the city of Sacramento. As the court later ruled, only a few emails were protected by attorney-client privilege. And once the majority of the requested emails were released, the emails revealed that members of Mayor Johnson’s staff were using significant public resources to work on the mayor’s pet projects.
Even though the cost of this lawsuit was a considerable financial hardship for our newspaper, I believe that backing away from a legitimate public information request because of the threat of a lawsuit would encourage public officials like Mayor Johnson to squash public information requests. It’s a little like turning over your lunch money to a bully. Once you start, it’s hard to go back.
Typically, if the media files a public information request, and the government agency fails to fulfill their legal obligation, then the media files a lawsuit to compel the agency to comply. If the court rules in favor of the media, then the government agency has to cough up the attorney’s fees.
But for reasons that make more sense in Alice in Wonderland than California judicial code, if the agency sues the media, for whatever reason, it can be much more difficult for the prevailing party to get legal fees.
This was bad news for us. Frankly, this case cost more money than we could afford.
We are so appreciative of the many people and organizations that contributed to our legal defense fund. Without their help, I do not know where we would be. And we are so grateful to our attorneys, who, recognizing the national importance of this case, have offered to do this final appeal at no cost to us.
This case is critical for journalism. If the lower court ruling holds, then any politician with considerable resources faced with a public information request could just play a game of legal-fees chicken. If the media or a concerned citizen was unable to pay the legal fees necessary to pursue the case, they would have to give up.
That is why a brief has been filed in support of our case by the following organizations:
The Reporters Committee for Freedom of the Press
American Society of News Editors
The Associated Press
Associated Press Media Editors
Association of Alternative Newsmedia
California Newspaper Publishers Association
The Center for Investigative Reporting
First Amendment Coalition
Gannett Co., Inc.
Los Angeles Times Communications, LLC
National Press Photographers Association
The San Diego Union-Tribune LLC
Society of Professional Journalists, and
TEGNA Inc. / KXTV-TV
Similar to the Supreme Court ruling in the Citizens United case, which, by removing political donation restrictions, tilted our electoral process to favor the rich, the lower court’s ruling in our case effectively enables the politically powerful to avoid providing “public information” to the public.
The Appeal Court can and should reverse it.
July 17 is a big day.