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Network of Lawyers Helps US Journalists Fight for Access

FILE - Various local newspapers appear outside a convenience store in Brooklyn, New York, on June 30, 2022. As newspapers struggle financially, they lack resources to fight for access or defend themselves in court.
FILE - Various local newspapers appear outside a convenience store in Brooklyn, New York, on June 30, 2022. As newspapers struggle financially, they lack resources to fight for access or defend themselves in court.

The call from a deputy district attorney unnerved Hanna Merzbach.

The freelance journalist from the city of Bend, in the western U.S. state of Oregon, had been reporting on a dispute between climbers at a state park.

Now the county attorney wanted her to testify about one of her sources.

When Merzbach refused, she was issued a subpoena.

"I was pretty overwhelmed," Merzbach told VOA. "I don't have the same kinds of support that staff writers do."

Unsure of her rights, Merzbach turned to Twitter, posting about her subpoena.

Soon other journalists in Oregon reached out, suggesting that she seek legal help from the Reporters Committee for Freedom of the Press (RCFP).

The Washington-based group runs a program called the Local Legal Initiative that offers free legal support in media rights cases. Staff attorneys are based in five states: Colorado, Oklahoma, Oregon, Pennsylvania and Tennessee, with plans to add more. ​The attorneys are available to help journalists no matter where they are located in the U.S.

Since its inception in 2020, Local Legal Initiative attorneys have represented more than 120 journalists and news outlets, helping them access public records and contest demands to turn over reporting materials. Funds from the Knight Foundation helped to set up the program.

Lisa Zycherman, deputy legal director and policy counsel at the RCFP, said that state and local governments have "grown emboldened" in efforts to shield information from the public and the media.

"They can do so if they're confident that newsrooms may not be able to challenge a lack of transparency," Zycherman said.

In a time of economic downturn for local media, journalists often also lack the resources to push back, she said.

"When journalists are routinely stymied by a culture of secrecy that shields data, documents and other public records, our Local Legal Initiative attorneys can help journalists push back against that kind of secrecy," Zycherman said.

Legal relief

In Merzbach's case, journalists on Twitter helped connect her with Ellen Osoinach, an RCFP attorney based in Oregon.

"We spoke the next morning and basically she got everything resolved that day," Merzbach said.

Osoinach spoke to the deputy district attorney about Oregon's shield law, which protects journalists from being compelled to testify or to share materials.

"And then," said Merzbach, "everything just went away."

The journalist, who covers climate change and housing issues on the West Coast, said if she had been forced to comply with the subpoena, it would have damaged her credibility and made it seem like she was "taking a side."

Freelance reporter Hanna Merzbach
Freelance reporter Hanna Merzbach

Merzbach was also concerned about hurting her relationship with the source, whose trust she had worked to gain.

As an independent journalist, Merzbach said it was a relief to have a lawyer she could consult.

No resources to fight

With thousands of local newspapers now out of business, the U.S. has seen a rise in "news deserts" across the country — communities lacking a credible local news source. Many surviving publications continue to grapple with the financial challenges of staying in print.

Zycherman said that financial constraints can be a barrier to local newsrooms pushing for access.

"We saw that newsrooms often lack the financial resources to fight for access to information that helps all journalists tell stories in the public interest," Zycherman said.

In denying access to public records, companies and government bodies cite various reasons ranging from privacy to related criminal investigations.

Osoinach is currently working on another case involving Merzbach, in which a central Oregon water company refused a records request for information about its top water users.

At the time, Merzbach was writing about water usage in a drought-hit region for the Source Weekly, a central Oregon newspaper with an online monthly readership of 150,000.

When Merzbach appealed to the district attorney, he ruled that the company must provide the records. The company then filed a lawsuit against Merzbach and the Source Weekly.

Osoinach was able to have Merzbach dismissed from the case and is now representing the news outlet.

Merzbach said the case was "just another instance of Ellen swooping in and taking all of my worries away."

Refusing a records request

The RCFP handled a similar case in Pennsylvania in 2020 for Dylan Segelbaum, who at the time was a courts reporter for the York Daily Record.

Segelbaum had submitted a request under Pennsylvania's Right to Know Law for a forensic audit of a local fire department. The department refused, citing an exemption because the audit contained information used as part of a criminal investigation.

As in Merzbach's case, the Office of Open Records in Pennsylvania ruled in Segelbaum's favor and ordered the department to provide the document. The department then filed an appeal.

"During my time at the York Daily Record, it seemed like local governments in York County were increasingly taking us to court if we had prevailed on appeal in open records cases," Segelbaum said.

Paula Knudsen Burke, the Local Legal Initiative attorney in Pennsylvania, took on the case, representing Segelbaum and his paper.

In August 2021, a York County judge ruled in their favor.

Segelbaum was able to get a copy of the audit and post it so that "the people in the community could see what the investigation turned up at the fire company, to shed light on what their tax dollars had paid for."

The public's right to know is what drives Merzbach too.

She acknowledged that local news reporting may often provide fewer resources than working for national publications. But, Merzbach said, she "can't get away from it."

"It just feels like where you can make the biggest impact and tell the stories that the community actually wants to be told," she said.

Segelbaum attested to the importance of the free legal counsel to not only defend against appeals, but to seek records that "might have been tougher calls in the past."

For Zycherman, the focus is on protecting public interest journalism.

The initiative aims to help journalists "hold state and local government agencies and officials accountable to the public," she said.