access to information

I wrote a guest column for the Connecticut Law Tribune about the 14 months I spent as the Media Law Resource Center, how lawyers can use their law degrees in non-traditional ways and the need for lawyers to take on advocacy for public access to information:

For the past year, my byline has appeared in the Connecticut Law Tribune atop freelance news articles. But this time, I'm writing to discuss how the day job I've held for the last 14 months exemplifies how lawyers can use their law degrees without working for traditional legal practices. I'm also writing to discuss the need for lawyers to take on advocacy for public access to information even if media companies are not a regular part of their clientele.

Until recently, I worked for the New York-based Media Law Resource Center (MLRC), a nonprofit which fights to protect the First Amendment and which serves as a trade association for media companies and as their outside counsel. During the decade I've spent as a journalist, I've encountered many legal issues: being sued for defamation in a frivolous lawsuit; figuring out if a judge was really entitled to secrete away in his chambers a portion of a murder case file; looking into whether public record laws voted on by legislators and signed by governors apply to the judiciary, an independent branch of government. So it was a thrill to get my first legal job at a nonprofit that has been working for 30 years to advance the First Amendment and a body of law that protects the press.

My fellowship was not a traditional one that focused on litigation. I was essentially working for a bar association, so I coordinated the programming for a national conference for 400 lawyers; I wrote a conflict-of-interest policy; I wrote for and helped edit several of MLRC's publications; and I was a staff liaison to committees working on state legislation affecting the media and for lawyers who have been practicing media law for 10 years or less. Five other lawyers work at this nonprofit organizing national and international conferences, drafting model bills and taking on many other endeavors to bring together media-law practitioners from around the country and the world.

During a time of flux in the legal industry, this job shows that lawyers can use their degrees in nontraditional ways. We have a democracy because we have the rule of law. Law is not just about courtroom litigation but about the many activities that promote the principle that the law—and not the arbitrary, autocratic decisions of government officials—governs our society. A job that involves analyzing the law and influencing policy is just as good a use of one's law degree as working as a litigator or a transactional attorney at a law firm. Both are putting specialized legal education to good use.

Working at MLRC also gave me a bird's-eye view and understanding of many of the cutting-edge issues facing the media. National security and counterterrorism policies are diminishing press freedom. The Committee to Protect Journalists found that President Barack Obama's administration has aggressively prosecuted leakers of classified information, caused government sources to refrain from speaking to journalists about of electronic surveillance programs, and secretly subpoenaed and seized reporters' phone logs and emails. Meanwhile, the growing "right to be forgotten" in Europe is the biggest threat to Internet free speech yet. And all sectors of the media business—newspapers, digital websites, television, books and radio—are struggling to get their audiences to pay for content and information.

The press is the rare profession to get a specific mention in the U.S. Constitution, but that special shoutout has not helped media organizations figure out how to make money in a free-market economy. And so while the MLRC's mission is an inspiring one, there are some depressing aspects to media law. Print and electronic media organizations have cut staffing and, along with that, reduced the resources dedicated to investigative reporting and fighting for access to government information. According to a 2013 survey of members of the National Freedom of Information Coalition and the MLRC's Defense Counsel Section, 46 percent of the attorneys polled reported that media organizations have substantially decreased legal resources devoted to freedom of information issues.

However, not all is gloom and doom. Newspapers are attracting billionaire investors. Amazon founder Jeff Bezos bought The Washington Post for $250 million, former hedge fund manager and Red Sox owner John Henry bought The Boston Globe for $70 million, and print-and-marketing magnate Glen Taylor bought the Minneapolis Star Tribune for an estimated $100 million. New media outlets such as BuzzFeed that once banked on click-bait content, cat videos and listicles are putting money into enterprise and investigative reporting. Several new startups on substantive policy problems have launched sites: The Intercept on national security, the Marshall Project on criminal justice, and other sites focusing on data-driven journalism.

Connecticut is having its own spree of journalism innovation. The Connecticut Mirror and the Connecticut News Junkie are digital-only sites that focus on watchdog journalism and public policy and political reporting. Earlier this year, the Columbia Journalism Review counted more than 100 news outlets providing local news coverage to Fairfield County residents, including 47 hyperlocal news websites.

While a media resurgence might on the horizon, it seems unlikely that more money will be budgeted for the fight for access to government information. The problem is acute. Connecticut is no stranger to government officials seeking to squelch the public's access to information. A bill that would have brought greater transparency to the University of Connecticut Foundation died in a General Assembly committee. Historians were unsuccessful this year in a push to get access to medical records in the state archives made available 50 years after peoples' deaths. No amendments were made to Connecticut's Freedom of Information Law to better balance the privacy of crime victims with public access to information (although there is a countervailing argument that protecting the privacy of crime victims and their family members can outweigh the public's right to access crime-scene information).

So I have two suggestions for members of the Connecticut bar on how they might help protect the public's right to access information about our government. First, take on independent news startups and bloggers operating on thin margins as pro bono clients. There is already a precedent for this, as Yale Law School has a clinic focusing on media freedom and information access.

Second, lawyers are often involved in civic life on an extracurricular basis, serving as zoning officials, school board members and in other roles. Lawyers involved in local institutions need to keep them accountable and make sure they operate transparently and with policies favoring public access. Many lawyers have told me they were inspired to go into the law because of the corruption that journalists Bob Woodward and Carl Bernstein uncovered in Richard Nixon's administration. Journalists and lawyers are kindred spirits in seeking justice. With the media industry still in a weak economic state, there is a greater role for lawyers to play in ensuring public access to information and ensuring our government is held accountable.

Amaris Elliott-Engel is a graduate of the Temple University Beasley School of Law and a former staff reporter for The Legal Intelligencer newspaper in Philadelphia. She was recently named the editor of the Commercial Litigation Insider, which, like the Connecticut Law Tribune, is published by ALM.

I've been covering an asbestos bankruptcy  in which there are major allegations that plaintiffs lawyers misrepresented that their clients were exposed to certain sources of asbestos in the tort system, while indicating something different when seeking payments from opaquely-run trusts formed out of the bankruptcy of companies that made products containing asbestos. Last week, a district court ruled that court proceedings should not have been closed to the public and the press on the issue. I reported on the case for Law.com:

A trial held to estimate the liability of a company undergoing an asbestos-related bankruptcy should not have been closed to the public and press, a federal district court judge, sitting on appeal, has ruled.

U.S. District Judge Max O. Cogburn Jr. of the Western District of North Carolina remanded the case back to a bankruptcy courtroom in order for the lower court to conduct fact-finding about the public's right of access because of the common law or because of the First Amendment.

Senior Bankruptcy Judge George R. Hodges has been presiding over gasketmaker Garlock Sealing Technologies LLC's bankruptcy. During hearings held to estimate Garlock's liability to claimants who allegedly developed fatal mesothelioma because of exposure to asbestos from Garlock products, Hodges closed part of the trial.

Hodges concluded that past settlements Garlock had entered into were not a reliable way to estimate the company's liability. Discovery into 15 of those cases showed a pattern of misrepresentation by plaintiff's lawyers. Plaintiffs' counsel allegedly indicated their clients were exposed to certain sources of asbestos in the tort system, while indicating something different when seeking payments from opaquely-run trusts formed out of the bankruptcy of companies that made products containing asbestos.

Later, Hodges rejected the request to unseal the evidence upon which he concluded that there was a pattern of misrepresentation regarding claims made against Garlock.

Hodges should not have relied upon a confidentiality order alone to close the estimation trial because that “shifted the presumption that favors open courts to a presumption favoring the closure of proceedings based on confidentiality designations by counsel,” the district court found.

Legal Newsline, a business-oriented news outlet owned by the Institute for Legal Reform, an affiliate of the U.S. Chamber of Commerce, was the media outlet that sought access to the Garlock case.

“The court finds that, although done with the best judicial intentions of providing for the efficient administration of justice, Judge Hodges' decision to seal the estimation hearing and maintain the seal as to judicial filings and the transcript of those proceedings after his estimation order was contrary to the requirements of prevailing case law,” Cogburn said.

Separately, Cogburn has ordered that the Garlock's claims. asserting that plaintiffs' lawyers violated the Racketeer Influenced and Corrupt Organizations Act and engaged in fraud, be consolidated in front of one U.S. magistrate judge for pretrial case management, including any motions by the plaintiffs' counsel to transfer venue to their home districts.

I'm writing several times a week about products liability for Law.com/The National Law Journal. Occasionally I cross-post a blog I find particularly interesting.

A judge who found widespread misrepresentation by plaintiffs in a gasketmaker’s bankruptcy has granted Ford Motor Co. access to the statements that parties must file to disclose their economic interests in bankruptcies.

U.S. Bankruptcy Judge George Hodges of the Western District of North Carolina said in a hearing on April 17 that Ford may access the Federal Rule of Bankruptcy 2019 statements, which must be filed by anyone participating in bankruptcy cases.

The statements are public records, Hodges said in ruling from the bench, and he did not find any improper purpose behind Ford’s request.

Hodges said his order will not go into effect until two weeks after law firms that the plaintiffs say have not been served with Ford’s request receive that service.

If those firms and their clients object, then the order will not go into effect against them, Hodges said. The order will be implemented “on a no protest basis,” Hodges said.

Hodges is presiding over the bankruptcy of Garlock Sealing Technologies, LLC.

The 2019 statements and other evidence in Garlock’s insolvency proceeding have been sealed after Hodges presided over a hearing to estimate the liabilities of Garlock for asbestos claimants who have mesothelioma cancer.

Hodges has denied access to the sealed transcripts of the estimation proceeding, which led to his findings of misrepresentation. In a prior ruling, Hodges noted that the district court already has an appeal about closing the proceeding to the public before it. He reasoned it would be more efficient for the district court to hear the appeals of Ford, online news outlet Legal Newsline, and others in one proceeding.

Ford’s counsel, K. Elizabeth Sieg of McGuire Woods LLP in Richmond, Va., argued that the names of the asbestos litigants suing Garlock are “at the very heart of the fraud Ford seeks to investigate. Ford suspects it has been defrauded in the settlement of asbestos claims” by plaintiffs who did not disclose they had claims against Garlock.

Rule 2019 statements bear directly on the “integrity and transparency” in bankruptcy proceedings, Sieg argued.

Sieg cited the Company Doe decision in the U.S. Court of Appeals for the Fourth Circuit this week in which the court held that an order sealing a company’s identity throughout an entire litigation violated the public’s right of access under the First Amendment.

Trevor Sweet III, a plaintiffs attorney with Caplin & Drysdale, Chartered in Washington, said disclosing the 2019 statements would expose plaintiffs to identity theft and the disclosure of their asbestos diseases. He also argued that settlement amounts should not be disclosed because they could not be disclosed in the civil tort system.

“In the tort system where Ford hopes to use this information, Ford is not entitled to know the amount of any settlement that a Ford plaintiff has reached with any other person unless and until Ford suffers a judgment in favor of that person and that court has been called upon to mold that judgment,” Swett argued.

The plaintiff’s attorney distinguished the Fourth Circuit decision because it was not a bankruptcy case but “a case in which a district court allowed an entire litigation from filing to judgment [to proceed] behind closed doors.”

The judge also granted Specialty Products Holding Corp. and Bondex International, Inc. access to the 2019 statements Thursday.

Hodges previously ruled that insurer Aetna, Inc., and Rawling Company LLC, a cost containment vendor for insurers, can have to the 2019 statements.

The National Freedom of Information Coalition and the Media Law Resource Center jointly conducted a survey, which showed troubling trends for transparency. Here is an excerpt of the report I wrote for NFOIC and MLRC about the 2013 survey results:

Just as similar informal surveys in 2009 and 2011 had, the 2013 Open Government Survey found a substantial decline over the last two to five years in the amount of resources devoted by media organizations to FOIA and open government issues.

Some 153 representatives of the two organizations participated in the 2013 survey. It showed a continuation of a trend reported two years ago in a prior survey of people in the field who see a decrease in legal resources being applied to FOIA and open government issues. This year 46.2 percent of surveyed MLRC attorneys ("media attorneys") said media organizations had decreased those legal resources substantially, while 35.6 percent of NFOIC representatives indicated the same.

In 2011, 23.37 percent of surveyed media attorneys reported that open government lawsuits had decreased substantially, while 25.5 percent of those surveyed from NFOIC reported the same.

Other results and findings of the jointly administered 2013 survey included these:

* 46.2 percent of the surveyed media attorneys said media organizations had decreased those resources substantially, while 35.6 percent of NFOIC representatives indicated the same.
* 24.6 percent of media attorneys said such resources had decreased slightly, while 25.4 percent of NFOIC representatives indicated the same.
* 3.1. percent of media attorneys said the resources had stayed about the same in contrast to the 20.3 percent of NFOIC representatives who said such resources had stayed on the same level.
* The numbers of respondents in both groups who view that such resources had increased slightly or increased substantially were closer in percentage.

Both media attorneys and freedom of information professionals reported at a high rate that "emerging forms of public data and proactive disclosures" have not made their services and resources less needed over the last two to five years:

*20 percent of media attorneys said their services are much more needed with the rise of public data and proactive disclosure by governmental entities, while 33.9 percent of NFOIC correspondents indicated the same.
* 18.3 percent of media attorneys said their services are slightly more needed, while 21.4 percent of NFOIC respondents indicated the same.
* Fifty percent of media attorneys said there was no change, while 41.1 percent of NFOIC respondents indicated the same.

More NFOIC respondents than media attorneys reported that enforcement mechanisms for noncompliance by governmental officials with open government rules were ineffective:

* 33.9 percent of NFOIC respondents said enforcement measures were not effective at all, while 16.4 percent of media attorneys reported the same thing.
* 32.2 percent of NFOIC members said enforcement measures were somewhat effective, while 42.6 percent of media attorneys reported the same thing.
* The number of media attorney and NFOIC respondents who said enforcement measures were somewhat ineffective was very close with 21.3 percent of media attorneys reporting that and 22.0 percent of NFOIC correspondents reporting that.

The majority of media attorneys and NFOIC respondents said that "disingenuous rationalization" was the most common reason why government officials deny access to information. Interpretations of statutory language and "inappropriate game-playing" were the next most common reasons for governmental officials to deny access to information, those surveyed reported.