Press Gains Access to DCS Child Fatality Records

 (Photo credit: Wikipedia)

In The Tennessean et al. v. Tennessee Department of Children Services (Case No. 12-1769-II), Tennessee Chancery District Court Judge Carol L. McCoy last week ordered redacted child fatality records of youth under state care released to media organizations.

Following her review of four DCS reports involving child fatalities, Judge McCoy ruled the files at issue be released to the news media within 10 days, omitting the names of the decedents, their families, DCS staffers who handled the cases and the individuals who reported the alleged abuse. Judge McCoy said the public's interest in learning about the deaths exceeded concerns in keeping the information confidential, notwithstanding state and federal measures favoring nondisclosure.  More than a dozen media outlets, including The Tennessean, filed a petition in court against the DCS last December when the agency declined to produce the child fatality reports, arguing that the information was subject to disclosure under Tennessee's Public Records Law [Tenn. Code Ann. 10-7-101 et seq.] and that it was crucial that the public be informed about how the state handled fatalities of children under its care.

Judge McCoy's ruling permits the DCS to consider the cost of redacting and processing the remainder of the 206 child fatality reports dating back to 2009, beyond the four files she reviewed, so that media outlets could elect to pay those costs.

Tip of the hat to the Reporters Committee for Freedom of the Press (www.rcfp.org) for drawing attention to this decision.

Search Warrant Affidavits Public Records, SJC Rules

The Quincy Patriot Ledger building (Photo credit: Wikipedia)

The Massachusetts Supreme Judicial Court this week, in Com. v. George Prescott Publishing Co., LLC (Case No. 11062), ruled that police affidavits supporting search warrants must be produced under the Commonwealth's Public Records Law (G.L. c. 66, sec. 10).

Siding with the Quincy Patriot Ledger, which sought a State Police affidavit involving alleged sexual misconduct by a prominent real estate developer allegedly involving a minor, the SJC rejected arguments by the developer's counsel that his client's right to a fair trial would be compromised and by authorities, who contended that G.L. c. 41, sec. 97D was controlling and shielded the affidavit from production. That statute exempts rape and sexual assault reports, along with conversations between police and victims, from production under the Public Records Law. A Quincy District Court judge had sealed the document, prompting the daily to appeal.

The SJC frowns on impounding documents and cited in its opinion well-established case law treating search warrants and supporting documentation as presumptive public records. The high court's ruling voiced confidence in trial judges' ability to balance First Amendment concerns against a criminal defendant's right to a presumption of innocence.

Mass.Town Won't Disclose Discrimination Suit Settlement Terms to Newspaper

(Photo credit: Wikipedia)The (Brockton, Mass.) Enterprise will look to the Commonwealth of Massachusetts to obtain the release of the terms of a settlement agreement involving a discrimination suit brought by a police officer against the town of West Bridgewater, Enterprise.com reports.

Forty-eight-year-old Thomas Richmond, a full-time West Bridgewater police officer, sued the town in federal court in 2010, alleging disability discrimination, defamation and emotional distress, among other claims. The parties reached a settlement in December 2011, of the suit against the town, its police chief and two other supervisory officers.

The town's administrator would not disclose the lump sum amount paid to Richmond in response to a request from the daily, citing an agreement between the plaintiff and the municipality's insurance company. Likewise, Richmond's counsel would not disclose the sum to the Enterprise, noting he was bound by a confidentiality agreement.

Nondisclosure provisions are commonplace in settlement agreements, but that doesn't change the nature of the underlying claim.  When such an agreement involves a public employee, the agreement is a public record, subject to the Commonwealth's Public Records Law (M.G.L. c. 66, sec. 10). "TUOL" will be surprised if the Commonwealth rules otherwise.

ESPN Sues OSU Over Public Records Request in NCAA Probe

Image by Getty Images via @daylifeIn State ex rel. ESPN, Inc. v. The Ohio State University (Case No. 11-1177), a complaint for writ of mandamus filed this week in the Supreme Court of Ohio, the sports broadcaster is seeking records from the football powerhouse concerning an NCAA probe into alleged sales by OSU players of game memorabilia that caused Coach Jim Tressel and star QB Terrelle Pryor to leave the university.

ESPN sued under the Buckeye State's public records law [Ohio Rev. Code sec. 149.43], after producer Justine Gubar's April 20, 2011, requests for documents concerning the alleged NCAA violations were rejected by OSU on May 27, on the grounds that producing the information would violate students' privacy rights set forth in the Federal Educational Rights and Privacy Act ("FERPA") [20 U.S.C. sec. 1232g].

ESPN was turned away by OSU after it asked for Email correspondence and other internal and external documents regarding the NCAA's inquiry into alleged actions by Tressel, Pryor, and other team members, including Devier Posey, Daniel Herron, Mike Adams and Solomon Thomas. According to an article in The Columbus Dispatch, ESPN also has its eye on correspondence from Tressel to Jeannette, Pennsylvania-based Ted Sarniak, purportedly Pryor's mentor.

OSU has 21 days to respond to the Complaint once it is served.

UPDATE: Calif. Appeals Court Says County Employees' Pension Docs Public Records

Image via WikipediaThe public's interest in viewing county employees' pension documents outweighs the retirees' interest in keeping their personal financial information private, California's Court of Appeal, Fourth Appellate District, Division One, has ruled in San Diego County Employees Retirement Association v. Superior Court of San Diego County; California Foundation for Fiscal Responsibility (Case No. D058962).

In upholding the trial court's ruling earlier this year (see "TUOL" post 3/15/11), the appellate court found public worker pension benefits tied to salary, which is public, rather than private assets, in siding with a watchdog group whom the court said had a legitimate right to inspect a government group's activities. In its opinion, the court said: "The disclosure of pension information provides information about the government's management of public [funds], in which the public has a legitimate interest. Pension benefits are not excessively related to personal financial decisions of former employees."

The California Foundation for Fiscal Responsibility sought data on retirees receiving monthly pension benefits of more than $8,333.

Vermont Bolsters Public Records Law

Image by Getty Images via @daylifeVermont Gov. Peter Shumlin has signed H. 73, which strengthens the Green Mountain State's Public Records Law.

The measure, introduced by Rep. Donna G. Sweaney of Windsor, takes effect on July 1. Among the changes to the law are the requirement that individuals who successfully challenge a denied request for documents be reimbursed their legal fees and that state agencies designate a staffer "records officer" to handle requests and inquiries.

Municipalities do not have to appoint a records officer and the amended law does enable government agencies that lose a records request dispute to avoid paying the requester's attorneys fees if the entity produces the records being sought in the early stages of the legal action pursuing the documents. The new law also creates a panel to review the law's more than 200 exemptions, according to an article by the Associated Press.

A Non-Public Mugging

Image via WikipediaPolice do not have to release "mug shots" of criminal defendants under the Massachusetts Public Records Law [G.L. c. 66, sec. 1 et seq; G.L. c. 4, sec. 7(26)], the Secretary of State's office has ruled.

As first reported by attorney Bob Ambrogi's Media Law blog (http:// medialaw.legaline.com), the decision by Secretary of State William Galvin's office reverses its previous position on the issue.  The most recent ruling involved a request by The Daily Hampshire Gazette for photos taken of  one-time Judge W. Michael Ryan, who was arrested and later acquitted of charges of disorderly conduct and assault and battery of a police officer.

Secretary Galvin's office backed authorities' refusal to turn over the former judge's mug shots, ruling police had discretion to withhold the record under the Commonwealth's Criminal Offender Records Information Law ("CORI") [G.L. c. 6, secs. 167-178B].

SJC: Public Records Law Doesn't Override Judicial Protective Order

Image by Getty Images via @daylifeIn Commonwealth of Massachusetts v. Fremont Investment & Loan et al. (Case No. 10749), the Supreme Judicial Court of Massachusetts this week ruled that courts' traditional power to enter protective orders sealing documents is not overridden by the Commonwealth's public records law (M.G.L. c. 66, sec. 10).

In October 2007, Massachusetts Attorney General Martha Coakley sued Fremont under the Commonwealth's consumer protection law, alleging the mortgage company engaged in predatory lending practices that were unfair and deceptive (Com. v. Fremont Inv. & Loan, 452 Mass. 733 (2008)) Fremont paid a $10 million fine and costs, but during the litigation, the parties filed a joint protective order governing the exchange of purportedly confidential documents.

Samuel J. Lieberman  sought access to the more than 5.5 million pages of these sealed documents from the Attorney General's office via the public records law. Writing for the High Court, Justice Judith Cowin concluded that interpreting the public records law to negate a judicial order sealing documents "would raise serious constitutional doubts as to the validity of the statute." Issuing protective orders is an inherent judicial power essential to the function of the judicial department and the courts' ability to decide cases and cannot be trumped by the public records law, the SJC ruled.

Wyo. High Court Says School Employees' Salaries Public Records

Image via WikipediaIn Laramie County School District No. One  v. Cheyenne Newspapers, Inc. d/b/a Wyoming Tribune Eagle & D. Reed Eckhardt (Case No. S-10-0221), the Wyoming Supreme Court this week upheld the trial court ruling that school district employees' names and salaries are not exempt from disclosure under the Wyoming Public Records Act ("WPRA") [Wyo. Stat. Ann. secs. 16-4-201 to 16-4-205].

In a 14-page opinion, the Wyoming High Court rejected the school district's argument that disclosure violated a Wyoming Education Code provision mandating publication of salaries without identifying the individual school district employees by name. The Tribune Eagle sought the documents in December 2009 under the WPRA, which makes public records "open for inspection by any person at reasonable times."

The Supreme Court ruled that although the newspaper was entitled to view records showing the employees' names and salaries, that other personal information, such as Social Security numbers and birthdates may be redacted to protect employee privacy because such information "is not part of the terms and conditions of employment."

The case was reported by the Website of the Reporters Committee for Freedom of the Press (www.rcfp.org).

South Carolina High Court Sides with Daily on FOIA Request

Image via WikipediaIn Evening Post Pub. Co. d/b/a The Post and Courier v. Berkeley County School District (Case No. 26949), the South Carolina Supreme Court this week reversed the trial court's grant of summary judgment to the school district and ordered the district to produce to the daily newspaper a copy of the blank questionnaire used by the nine-member county school board to evaluate the performance of former Supt. Chester Floyd.

The newspaper and school district have been at loggerheads since 2007 when the board denied The Post and Courier's request under the state's Freedom of Information Act [S.C. Code Sec. 30-4-10] for each board member's summation of Floyd's job performance, citing attorney-client privilege as protecting the documents because the board's counsel had overseen the process.

Floyd, who left Berkeley County in 2009 and presently serves as Superintendent for Lexington County School District 3, according to The Post and Courier, received a 5 percent salary boost in 2007 to $196, 980, based on a favorable review from five of the board's nine members.  Berkeley County officials refused to provide the newspaper with the remaining four members' evaluations of Floyd, instead, releasing only an overall evaluation of his performance.

According to an article in The Post and Courier, the school district has thus far spent more than $73,000 in legal fees defending its position in the case.

Media & Watchdog Group Press for Pension Records' Release

Image via WikipediaIn a 24-page decision last fall, San Diego County Superior Court Judge Timothy B. Taylor said the case at issue posed "a conflict between two bedrock principles of our democracy: the public's right to know information about the finances and operations of its government and the individual citizen's right to privacy."

In CFFR & Marcia Fritz v. SDCERA (Case No. 2010-00098768), Californians for Fiscal Responsibility ("CFFR"), a taxpayer watchdog group, and several news media outlets, including the San Diego Times-Union, the Los Angeles Times, Reuters and The Associated Press find themselves on the same side against the San Diego County Employees Retirement Association ("SDCERA"), trying to compel San Diego County's pension board to release pension information concerning its highest-paid retirees, according to a story in the Union-Tribune.

The pension board declined to release the names and pension data of 350 retirees whose annual pension earnings top $100,000 on the grounds that disclosure would subject the former government workers to identity theft and elder abuse.

But judges in California counties including Orange, San Diego, Sonoma and Sacramento have found that the names of pension recipients who were former government employees is a matter of public record. SDCERA is appealing Judge Taylor's order granting a petition for writ of mandate in which he ruled: "[the] evidentiary record,,,fails to establish that the retirees' privacy rights clearly outweigh CFFR's interest in receiving the information."

Proponents favoring disclosure of the pension information further cite as precedent two Attorney General Opinions finding names and pension amounts of retired public employees are not exempt from disclosure under the California Public Records Act [Govt. Code Secs. 62.50-62.76.48].

Mississippi Burning Violators of Open Meeting Law

Image via WikipediaMississippi Gov. Haley Barbour has signed S.B. 2289 [Code Sec. A-025-0041-0015, A-025-0061-0015], adding teeth to the state's open meeting and public records laws, the Associated Press reports.

Under the new law, as of July 1, public officials who violate the open meetings law could face penalties of $500 to $1,000. Previously, taxpayers bore the fines for public officials' infractions. The tougher measure, which received praise from the Mississippi Press Assn. and government-watchdog groups, was a response, in part, to critics who complained that a recent $100 fine assessed by the state Ethics Commission, which received a complaint from the Meridien Star newspaper, against Lauderdale County supervisors for improperly closing a meeting, was not enough of a deterrent.

UPDATE: Indigent Counsel Billing Docs Public Records

Image via WikipediaThe Washington Supreme Court has ruled that billing records submitted by counsel for indigent murder defendants are subject to the state's Public Records Act of 1972 [42.56 RCW], despite having been sealed by a judge.

The ABA Journal Law News Now blog reports that Washington's High Court also awarded costs and attorneys fees that could run into six figures to The Yakima Herald-Republic, which sought the court-appointed counsel billing information in the drug-related murder trial of Jose Luis Sanchez Jr. and Mario Gil Mendez, who were blamed for the 2005 killings of Ricky Causor and his three-year-old daughter, Mya Causor. (See "TUOL" post 3/11/10.) Mendez pleaded guilty and Sanchez is appealing his conviction in 2007.

The Sanchez defense cost taxpayers  $1.5 million and another $560,000 in defense costs for Mendez. A judge charged with overseeing defense counsel spending in the case ordered the billing records sealed, though they were forwarded to the county auditor and board of commissioners so that counsel could be paid. The Yakima Herald-Republic was rebuffed in its efforts to obtain the records under the public records law by officials who feared being held in contempt of court if they produced the sealed documents.

The Supreme Court ruling remands to the trial court the lion's share of the case for new determinations consistent with the high court decision. The Washington Supreme Court faulted officials for shifting its burden to cite an exemption under the public records act to the newspaper, thereby forcing the daily to sue for the data.

Only court records that are exclusively held by the courts are exempt under the public records law, the high court ruled unanimously. Two defense attorneys appointed to represent the defendants were discharged by the court in 2006 for unethical conduct that purportedly led to the wasting of $1 million in taxpayer funds, according to a probe by the AG's office.

Fla. Daily Sues City Over Whether Traffic Tickets Are Public Records

Image via WikipediaIn Times Publishing Co. v. City of Kenneth City (Case No. 10-17865), The St. Petersburg Times has petitioned the 6th Judicial District Circuit Court for Pinellas County for a writ of mandamus ordering the municipality to release records of red-light violators who received traffic citations from American Traffic Solutions (ATS), the private company hired by the city to issue traffic tickets.

As reported by Courthouse News Service, the Times, which is owned by the nonprofit Poynter Institute for Media Studies, filed a freedom of information request Dec. 1, pursuant to Florida's Public Records Act (Ch. 119, Fla. Stat.) and Art. 1, Sec. 24 of the Fla. Constitution (access to public records & meetings), seeking warning notices and citations issued by the city. Then-Fla. Gov. Charlie Crist signed into law in May 2010, H.B. 325, which empowers cities to use red-light cameras and other traffic infraction devices to issue citations to offending drivers.

Kenneth City hired ATS, which began issuing citations last November, one month after it started doling out warning citations. ATS, which produces a report for the city that identifies offenders, agreed only to provide the Times with statistics on the numbers of drivers it ticketed, contending that, as a private entity, the materials it kept were not public records.  The city, in turn, declined to produce the records naming the offenders, claiming that doing so would violate the federal Drivers Privacy Protection Act [18 U.S.C. sec.2721 et seq.].

For its part, the Times argues that it has a legal and constitutional right to inspect the traffic records. Not that the Pinellas County Court has consulted us, but "TUOL" believes the newspaper's request should be green-lighted. Expect to see a spate of such lawsuits nationwide as municipalities continue to privatize governmental services such as trash collection and traffic enforcement.

Aggies Agonize Over Public Information Law

Image via WikipediaOfficials at Texas A&M University, the Lone Star state's oldest public university, are in a quandary. It seems that some journalism students at Tarleton State University, which is part of  the Texas A&M system, tried to do something journalistic--apply for public records under the state's Public Information Act (Sec. 552 of the Tex. Govt. Code)--and ran afoul of a near 20-year-old university rule that bans system employees from making public information requests of their employer.

The so-called "A&M" Rule was enacted by the university in the 1990s after it was stuck with the bill for research and compliance from multiple information requests by a disgruntled employee, according to a story in the San Antonio News Express. The hornet's nest was riled when the school's general counsel drafted a letter that extended the ban to include journalism students who were participating in an optional statewide Light of Day project sponsored by the Freedom of Information Foundation of Texas ("FOIF") to promote investigative journalism by educating students in how to draft public records request letters.

Tarleton administrators sought an opinion from Texas A&M counsel after a student requested information from campus police. The A&M Rule does not preclude students, faculty or staff from making public information requests as individuals, but the university apparently mistook the optional participation in the Light of Day project as a mandatory assignment from journalism faculty.

Before long, 15 nationwide news organizations, including Associated Press and the National Press Foundation, fired off a letter to Texas A&M suggesting the A&M Rule violated the journalism students' First Amendment rights. "It seems no coincidence," the letter states in part, "that the System's new policy interpretation follows closely on the heels of stories developed by the students of journalism instructor Dan Malone that uncovered problems in crime reporting on the Tarleton State campus and that inquired into the reasons for cancellation of a highly controversial student play."

In light of the ensuing maelstrom, the university's counsel's office is re-examining its interpretation of the A&M Rule. School officials claim their intent was not to inhibit instruction in the Public Information Act, so the journalistic dander that has been raised may soon quiet down. Texas Gov. Rick Perry not too long ago threatened that Texas may secede from the Union, which provides further perspective.

Wash. High Court: Federal Privacy Laws Pre-empt State Public Records Law

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In Ameriquest Mortgage Company v. En banc Washington State Office of the Attorney General (Case No. 82690-1), the Washington Supreme Court affirmed an appellate court decision that federal privacy laws pre-empt Washington's Public Records Act ("WPRA") [Ch. 42.56 RCW].


Attorney Melissa Huelsman in 2007 submitted a WPRA request to Washington's Attorney General's Office for records pertaining to the office's investigation into alleged predatory lending practices by Ameriquest. (Disclosure: "TUOL" in his litigation heyday sued Ameriquest on more than one occasion on behalf of Bay State homeowners.) A state trial court originally had ruled against an injunction sought by Ameriquest against the release of records it had turned over to the AG on the grounds that disclosure violated federal privacy statutes.


The Washington High Court agreed, interpreting the relevant federal laws as preventing financial institutions from releasing "nonpublic personal information" to unafilliated third parties. Such information would require redaction of customer-identifying data, and the WPRA prohibits the AG from producing altered information in response to a request under the Act.


Kudos to the Web site of the Reporters Committee for Freedom of the Press (www.rcfp.org) for reporting on this case.

Nevada High Court Rules Guv Gun Records Open to Public Scrutiny

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Siding unanimously with The Reno-Gazette Journal, the Nevada Supreme Court ruled concealed weapon permit records of lame-duck Gov. Jim Gibbons are accessible under Nevada's Public Records Law [NRS 239.010].

The 14-page ruling by Nevada's High Court said  Washoe County District Court Judge Janet Berry wrongly decided the records involving the alleged improper handling of Gibbons' permit were not subject to the Public Records Law.  The Supreme Court distinguished that weapons permit applications are confidential, but that an applicant's identity or any records of a subsequent inquiry, suspension or revocation are not.

The Supreme Court ordered Judge Berry to redact any confidential information before releasing the records to the Gazette-Journal, which sued County Sheriff Mike Haley in 2008 to obtain the governor's post-permit documents. Gov. Gibbons  gave up his concealed weapons permit, ceding that he had not completed the requisite training for his nine pistols, although he signed  an application saying he had.

The incumbent Gibbons' reelection efforts were derailed in June when he lost the GOP primary. Goes to show that even without nine pistols, one can still shoot oneself in the foot.

Court: Gov. Wrongly Withheld Documents from Wyoming Tribune Eagle

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In her decision this week in Freudenthal et al. v. Cheyenne Newspapers Inc. (Case Nos. S-09-0813, S-09-0814) Wyoming Supreme Court Justice Marilyn C. Kite wrote that Gov. David Freudenthal violated the Wyoming Public Records Act ("WPRA") [Wyo. Stat. Ann. secs. 16-4-201 through 16-4-205] when he refused to produce budget documents requested by the Wyoming Tribune Eagle.

The Tribune Eagle on May 5, 2009, requested budget reduction plans prepared at the governor's behest by the state Department of Family Services and the Department of Health. The government's refusal to comply was based on what it asserted was a "deliberative process privilege" exemption within the WPRA.

In upholding the decision of the Laramie County District Court, the Wyoming Supreme Court said "the budget reduction plans contain factual information, rather than opinions, deliberations or thought processes and are not, therefore, the sort of documents protected by the deliberative process privilege."  Justice Kite said the facts of the case did not allow for an evaluation of whether the alleged privilege exists.

New Mexico Daily Sues Governor for Release of Employee Records

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The Albuquerque Journal has sued Democratic New Mexico Gov. Bill Richardson under the Inspection of Public Records Act (14-2-4 NMSA 1978) for the release of documents concerning 59 state workers who were laid off, the Associated Press reports.

The Journal filed suit in district court in pursuit of information concerning the identities of the pink-slipped workers, the purported savings to the state budget from the payroll deductions, and the criteria used by the governor's office to determine which positions were expendable. The newspaper claims the governor's office was foot-dragging and had released the names of only a handful of the 59 workers.

'Enemies Check' Delays City's Public Records Disclosure

Image by Mark Sardella via Flickr

Kudos to Atty. Bob Ambrogi's Media Law blog (http://medialaw.legaline.com) for highlighting the interesting approach the city of Lawrence takes to complying with Massachusetts' Public Records Law[M.G.L. c. 66, sec. 10(a)].

Pursuant to the statute, municipalities must reply to a records request within 10 days of receiving it and can't refuse to produce records based on the identity of the person seeking the records. Why, then, did Lawrence's city attorney take two months to respond to a request for city payroll records from The Boston Herald?

Because the city has numerous "enemies," and time was needed to investigate whether any nefarious ne'er-do-well was behind the request to learn the salaries of public employees funded by taxpayers.

Note to the city attorney interpreting the Commonwealth's Public Records Law:  unlike  '40s Hollywood gangster movies, when a reporter wearing a fedora inquires about the Mayor's salary, it's unacceptable to reply: "Who wants to know?"