Beth Slovic, a longtime education journalist in Portland, Oregon, was making dinner for her family when she noticed a bearded guy on a bicycle pulling up outside her house.
Slovic thought maybe one of her neighbors had ordered takeout. Instead, the man, a process server, came to her front door: Portland Public Schools was suing to block her public-information request for employee records.
The reporter, whose work has been published by Willamette Week, Portland Monthly magazine, and The New York Times, among others, wasn’t surprised to be served in April. The school district had said it would go to court to block Slovic from getting the records, which she first requested in November 2016.
But the moment had an element of unexpected humor for Slovic. In a prior dispute with the district, Portland schools officials refused to release an unredacted version of a contract the reporter had requested because it contained someone’s home address, according to Slovic.
“They said, ‘Beth may go knock on this person’s door,’ like that was the scariest thing in the world,” Slovic told me. “They characterized this act as incredibly threatening and invasive – which it’s not. And then, ‘Knock-knock, here comes the process server.’”
As surprising as these circumstances might sound, suing journalists and their news outlets is an increasingly popular tactic among public institutions, including school districts and universities, as they push back against requests to release documents that are typically considered open to scrutiny. (For more on this, take a look at a new investigation by The 74, focused on New York City, the nation’s largest school district.)
Government at all levels — from local to federal — has become more resistant in recent years to sharing information, said Mark Horvit, a journalism professor at the University of Missouri and a past director of Investigative Reporters and Editors (IRE).
Public agencies are exploiting the fact that many newsrooms have fewer resources these days to engage in prolonged legal battles, Horvit said. That means media organizations are less likely to sue when their records requests are denied, Horvit said.
There’s also been a shift away from a generally held attitude among public entities that “reasonable information should be public,” Horvit said. “More and more information is getting put in this category of needing to be protected.”
‘The Interest of the People’
You don’t have to look far for examples of open-records requests fueling everything from routine inquiries on the education beat to in-depth investigations like the Tampa Bay Times’ Pulitzer Prize-winning series on the resegregation of the county’s schools. But transparency in government isn’t just about what makes for good reporting, Horvit said.
“It’s the journalists’ job to keep the public informed about what public officials are doing in their name, and with their money,” Horvit said. “Open-records laws are an important check and balance on government power.”
In the Portland Public Schools case, the road to the lawsuit began with Slovic reporting in 2015 on the district’s challenges in recruiting and retaining African-American teachers. She learned that one recruit had been put on paid administrative leave with no public explanation, and requested a list of other district employees in similar circumstances.
To Slovic, it echoed the infamous circumstances that played out in New York City public schools, where teachers taken out of the classroom for misconduct had to show up every school day to so-called “rubber rooms,” collecting their full salaries in a kind of disciplinary purgatory. She wondered if something similar might be happening in Portland.
After the district complied and provided the list of employees on leave in 2015, Slovic noticed there was a school psychologist who had been on the payroll, but not working, for two years. In 2016, curious whether the psychologist had returned to work, Slovic renewed her records request. This time, the district turned her down. (Thanks to documentation accompanying a separate federal lawsuit filed by the psychologist against the district, Slovic was still able to get the story.)
“Their response was ‘The (public records) law hasn’t changed but our interpretation of it has, and we’re not giving you that information anymore,” Slovic told me.
Slovic (along with parent activist Kim Sordyl, who was seeking similar records) appealed to the county attorney general, who ruled that the records were public documents and must be released.
In a telephone interview, Portland Public Schools spokesman Dave Northfield told me the lawsuit is not intended “to quell any line of inquiry or discussions of the issues.” Rather ”the district is seeking clarity in an area of public-records law regarding employees’ personnel files and their rights to privacy,” he said.
Northfield added, ”There are conversations the district is having” about finding an alternative means to contest these kinds of decisions “without having to go this route. There is unfortunately not a method by which the district can appeal the D.A.’s ruling short of filing a lawsuit.”
The editorial board of The Oregonian newspaper has urged the Portland School Board to step in and force the district to drop the lawsuit. Noting that the district is in a budget crunch and were asking voters to support a $790 million bond measure, the editorial board wrote that the legal action “reflects poor judgment by a district that should show good stewardship of tax dollars” and “does nothing to shore up the sagging credibility of a district that too often takes action only when forced to by public outcry.” (The decision to sue was also cited by Oregon’s secretary of state as one of the reasons why he’s launching an audit of Portland Public Schools’ finances.)
The Price of Privacy
In some states, individuals who are sued by public entities in open-records cases might even have to pay the government’s legal bills, as Ryan Foley of the Associated Press explained in a recent piece about these types of lawsuits. Slovic filed her open-records request while working as a freelancer. Soon after being sued, she began a new job with the Portland Tribune. The newspaper agreed to back her, and serve as a defendant in the suit. Without the newspaper “stepping in as my hero,” says Slovic, she was worried about how she would finance her own defense.
The practice of public agencies suing records seekers has drawn ire from many quarters, including public watchdog groups and some lawmakers. But in certain cases, the public entity suing to block a records request has prevailed in court. In January, a judge sided with the University of Kentucky, which had sued its student newspaper to prevent the release of documents related to an investigation of allegations of sexual assault and harassment involving a professor.
The judge ruled that the privacy rights of the students involved trumped the newspaper’s right to know. There were also concerns that releasing the information would have a quelling effect on the ongoing investigation, as University of Kentucky President Eli Caputo said in a statement: “Without privacy, we know victim survivors will not come forward to report. That’s what was at stake in this case.”
Federal privacy laws do offer some protections when it comes to student records (including the 1974 Family Educational Rights and Privacy Act). But public officials have begun “throwing the FERPA blanket over absolutely everything,”said Frank LoMonte, a professor at the University of Florida College of Journalism and Communications. And it’s also become commonplace to try and run out the clock on reporters seeking records where timeliness is a key factor, he said.
He cited the circumstances earlier this year when the University of Arizona refused to identify the finalists in its search for a new president. That was in spite of a decades-old state Supreme Court ruling compelling them to do precisely that, LoMonte said.
“Their attitude was, ‘Go ahead, sue us. We think we’ll finish the search before you win,’” said LoMonte, who is also wrapping up his tenure as the executive director of the Student Press Law Center.
There are plenty of questions stemming from knowing who’s on the list of finalists in these kinds of searches, said LoMonte: “Are you really considering a diverse pool of candidates? Do you have more than one serious contender or have you zeroed in prematurely on a favorite? Those kinds of disclosures serve all kinds of civically healthy purposes if conducted in time.”
Slovic also has strong feelings about the costs –both to the district’s pocketbook and in terms of the best interests of the city’s students — to these kinds of delays. She isn’t expecting a quick resolution as the lawsuit must now make its way through Oregon’s courts.
In the meantime, Slovic hopes that fighting the lawsuit will discourage public agencies from using similar tactics against other reporters who might not be in a position to defend themselves. And the legal action hasn’t dissauded her from own work. She currently has seven fresh open-records requests pending with the district.
