Ala. High Court Says Daily Can See Health Agency Records

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In Tennessee Valley Printing Co., Inc. & Michelle Rupe Eubanks v. Health Care Authority of Lauderdale County & City of Florence d/b/a Coffee Health Group (Case No.1090945), the Alabama Supreme Court last week unanimously ruled that the Open Records Act of Alabama [Code of Ala. 1975 sec. 36-12-40] entitled the Florence, Ala.-based TimesDaily access to health care agency records involving the possible sale of assets of Eliza Coffee Memorial Hospital and Shoals Hospital.


In an opinion by Justice Mike Bolin, the high court reversed the trial court decision and held "the sale of the assets of the Health Care Authority, a public corporation, is subject to the Open Records Act."  The TimesDaily, which is owned by Tennessee Valley Printing Co., Inc., sought records from the Health Care Authority, but the agency promised bidders for the hospitals' assets that their submissions would be confidential, according to an Associated Press story.

The Open Records Act provides: "Every citizen has a right to inspect and take a copy of any public writing of this state, except as otherwise expressly provided by statute."

Iowa High Court to Decide Breadth of State's Open Records Law

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Iowa's Open Records Law [Iowa Code Chapter 22] has butted heads with the Family Educational Rights and Privacy Act (FERPA), and it's up to the Hawkeye State's Supreme Court to decide whether FERPA is subordinate.


According to a story in the Des Moines Register, the Iowa Supreme Court last week heard arguments arising from a November 2007, request for records by the Iowa City Press-Citizen to the University of Iowa involving an alleged sexual assault in a university residence hall by two of the college's football players.  The Press-Citizen sued the university in 2008 under Chapter 22 after multiple requests to the school yielded only 18 nonresponsive documents.


Iowa District Court Judge Douglas Russell compelled the university to produce a log of withheld documents, which showed 3,200 documents that the school would not produce because of state and federal privacy statutes and attorney-client privilege.  Following the release of 900 documents from the list, Judge Russell ordered the school to produce more than 1,100 documents from the list, but the University of Iowa has balked at producing even redacted versions of the documents, relying on FERPA.

The university fears it could lose federal funding if it releases student records, but the newspaper argues that Iowa U. would be protected if the records were produced pursuant to court order.  The Iowa Supreme Court offered to indication when a decision could be expected, according to the Register story.

Wisc. Daily Sues Police Dept. for Alleged Open Records Law Abuses

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The Milwaukee Journal Sentinel has sued the city's police department for allegedly violating Wisconsin's Open Records Law ("WORL") [Wis. Stat. Sec. 19.31-19.39 (2003] by foot-dragging in producing documents and charging excessive fees.


As reported by the Web site of the Reporters Committee for Freedom of the Press (www.rcfp.org), Journal Sentinel reporters Gina Barton and Ben Poston  were informed by the police department that their respective requests for selected incident reports would cost $3,500 and $600. The paper also complained that their independent probe of police department crime statistics would be unduly delayed by the police department's purported claim that the records sought could take as long as nine months to retrieve because of time and manpower limitations.


Under Sec. (3)(A) of WORL,  an authority may impose a fee on a requester of a copy of a record that "may not exceed the actual, necessary and direct cost of reproduction and transcription of the record, unless a fee is otherwise specifically established or authorized to be established by law."

KY High Court Backs Paper on Open Records Law Request

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In Central Kentucky News-Journal v. Hon. Doughlas M. George (Case No. 2009-SC-000018-MR), the Kentucky Supreme Court this week reversed the Kentucky Court of Appeals, ruling that the twice-weekly newspaper is entitled to sealed settlement agreements from two lawsuits filed by a teacher against the Campbellsville school district and the Taylor County school board.

Teacher Katherine Moss sued the school district, claiming she was sexually harassed, and the school board for not hiring her. The News-Journal, which is owned by Landmark Community Newspapers, LLC, sought a writ of mandamus requiring trial Judge Doughlas M. George to grant access to sealed confidential settlement agreements, which the Court of Appeals denied.

Kentucky's High Court said the agreements must be disclosed pursuant to Kentucky's Open Records Act (KRS 61.870 to 61.884). Justice Will Scott wrote the statute presumes a public interest in the "free and open examination  of public records." The school boards argued the Open Records Act's privacy exemption applied, but the Court noted that taxpayer money paid the premiums on the insurance policy out of which the school boards paid the settlement proceeds.

Georgia Solons Out-Hustle Hustler Nude Photo Request

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Georgia's House Committee on Government Affairs has unanimously pushed through the Meredith Emerson Memorial Privacy Act sponsored by Rep. Jill Chambers (R.-Atlanta), creating a further obstacle for Hustler magazine, which requested photographs depicting the murdered nude and decapitated hiker under Georgia's Open Records Act (O.C.G.A. sec. 50-18-70).

Georgia House Speaker David Ralston (R.-Blue Ridge) rushed House Bill 1322 to a committee vote out of concern that Hustler magazine would appeal DeKalb County Superior Court Judge Daniel Coursey's temporary injunction entered at the behest of Emerson's family prohibiting the Georgia Bureau of Investigation from releasing photos portraying Meredith Emerson in an "unclothed or dismembered state." Emerson's body was found in the north Georgia mountains Jan. 7, 2008, six days after her disappearance, with the assistance of her confessed killer Gary Michael Hilton, who received a life sentence for the crime.

According to accounts in the Chatanooga Times Free Press and CNN,  H.B. 1322 permits credentialed journalists, lawyers, and law enforcement personnel to view explicit photos such as those in the Emerson case at the Georgia Bureau of Investigation, but does not allow such photos to be reproduced. Hustler magazine is weighing its next move in response to passage of the bill.

As distasteful and invasive of privacy the photos at issue may be, it remains to be seen whether the actions taken by lawmakers and family members in this case could withstand a First Amendment challenge by Hustler.

U. Wisc. Needs FERPA Guide to Navigate Student Paper Flap

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Student journalists at the University of Wisconsin at Milwaukee Post have sued the university for allegedly violating the state's public records law (Wis. Stat. sec. 19.31-19.39).

The suit in Milwaukee County Circuit Court involves the university's refusal to identify a student whose voice was recorded at a public committee meeting in reliance on the federal Family Educational Rights and Privacy Act ("FERPA") [20 U.S.C. sec.1232g; 34 C.F.R. Pt. 99], commonly known as the Buckley Amendment.  The school declined to provide Post staff with minutes, audio recordings or agendas of the Union Policy Board, the policy arm of the UWM Student Union, although the board's meetings are open to the public.

In the past, the college's administration has cited FERPA as the basis for its refusal to provide to the Post the identity of school employees who sit on student disciplinary hearing panels or taxpayer-funded university-related travel records of student government officers. Frank D. LoMonte, executive director of the Student Press Law Center ("SPLC") criticized UWM for not using common sense in pursuing a stringent, literal interpretation of FERPA.

The Buckley Amendment is intended to protect the privacy of student education records, such as grades, rather than a public body such as the Union Policy Board, even though it is comprised of students.