WINTER 2005 NEWSLETTER
GEORGIA FOI ACCESS
GEORGIA FIRST AMENDMENT FOUNDATION

 AROUND THE SOUTH

TENNESSEE

Federal mug shots available once again in Sixth Circuit

Aug. 17, 2005 -- Responding to a lawsuit by the Akron Beacon Journal, a U.S. attorney told the federal district court in Akron, Ohio, last week that the U.S. Marshals service has issued a new Freedom of Information Act directive to marshals in the four states in the Sixth Circuit that requires disclosure of mug shots of federal defendants in line with a 1996 federal appeals court decision.

The change means that reporters in the Sixth Circuit -- Kentucky, Ohio, Michigan and Tennessee -- will be able to again get mug shots of federal defendants. Beacon Journal business writer Gloria Irwin filed a FOI Act request in March with the U.S. Marshals Service in Cleveland for mug shots of two Akron businessmen who pleaded guilty to masterminding a real estate scam by buying low-priced homes and using false affidavits to resell them to investors at inflated prices. The agency denied the records request based on an August 2004 memorandum from its general counsel in Washington, D.C., that media or other requests for mug shots should be denied except where disclosure would help in the capture of fugitives. That 2004 memorandum followed changes in the Department of Justice's FOI Guide following a U.S. Supreme Court decision that year that pictures taken at the scene of Deputy White House Counsel Vince Foster's death could be withheld under the privacy arm of the law enforcement exemption to the act. The high court's ruling prompted the department to direct broad use of Exemption 7c.

Source: Reporters Committee for Freedom of the Press

FLORIDA

Crime scene, autopsy photos must be shown to media.

Dec. 1, 2005 -- The Supreme Court of Florida refused to review a state appeals court's decision granting media access to videotape and photographs of a a murder scene and subsequent autopsy, letting stand the appeals court's ruling that the trial court had improperly withheld the materials from the press. An emergency appeal to U.S. Supreme Court Justice Anthony Kennedy to stay the decision was also denied the same day. A three-judge appellate panel for the Second District Court of Appeal of Florida ruled that the Circuit Court in Sarasota abused its discretion Nov. 16 when it said four media organizations could not inspect photographs and a video that were presented into evidence in the case. "Secret evidence is the hallmark of an oppressive regime; it is not a policy generally acceptable in a free society with courts that must be open to the people to assure the legitimacy of those courts and the fairness of the proceedings that occur therein," Judge Chris W. Altenbernd wrote. Although the photos were "extraordinarily distressing," he wrote that in this case "these photographs are evidence in a trial where the state, on behalf of the people, is using its power to pursue the most extreme penalties." Accordingly, Judge Altenbernd asked the trial court to permit each of the four media petitioners to have one journalist view the disputed exhibits for the media pool.

When the state requested that the Florida Supreme Court grant a stay while it considered whether to review the appellate court's decision, lawyers for the four media companies asked the high court to reject the request, arguing that sealing the photos violated the news media's rights under Florida law and the First Amendment. The media lawyers also argued that the public's ability to monitor the trial through the news media had been injured by the unnecessary delay -- the media lawyers were still fighting for access three weeks after the disputed photos were first shown to the jury and 10 days after the criminal defendant was found guilty. The trial court judge had sealed the photographs at the request of the murder victim's father to keep photos of his daughter confidential. The victim, Carlie Brucia, was 11 years old at the time of her death. The photos show a child with a nude lower body, and reveal the various trauma sustained by her, as well as decomposition. The trial court refused to release the photos to the public, finding that "the mere 'viewing' of the photographs will cause tremendous harm" to Carlie's family, which was already distressed by the thought of the media accessing the photos. The trial court also found that the already intense coverage of the trial portended that the photos would be greatly publicized if released. In overturning the sealing, the appellate court ruled that, while it respects "the privacy interests of the victim's family," "less restrictive measures exist to protect those interests while also protecting the competing interests engendered by a public trial."

The four petitioners, The Sarasota Herald-Tribune, Tampa Tribune, WFLA-TV and The Herald, had petitioned the appeals court for access to the photos on the fourth day of trial, when the trial court made an oral ruling that the press and public would not be permitted to review the crime scene photographs. In their emergency appeal, the lawyers for the media companies sought only the right to inspect the photos, but not to copy, publish, or broadcast them, or place them on the Internet.

Source: Reporters Committee for Freedom of the Press

SOUTH CAROLINA

Audit uncovers inconsistencies in FOI compliance

Nov. 17, 2005 -- A statewide review of how law enforcement agencies, county officials and school boards in South Carolina respond to records requests and open meeting laws uncovered several violations of the state Freedom of Information Act, spurring some advocates to push for changes in the state law in 2006. Among the reactions to records requests that The Associated Press reported:

• "You can't have that." - Chicquetta Fullilove, Charleston Police Department supervisor.

• "You don't know who he is. . . . He may attack someone." - Charles Francis, Charleston Police Department, defending Fullilove's outright denial of access to the incident reports. Francis later spoke with a lawyer, AP reported, finding his agency had been failing to follow the FOI law since 1991.

• "I don't keep up with the laws as far as what can and cannot be released." - Lt. Jackie Crawford, McCormick County Sheriff's Office.

• "I can only release what they give news stations, that's all I can give you." - Bridget Bryan, Barnwell County Sheriff's Office, referring to news releases provided to news organizations.

The audit, led by AP and joined by the South Carolina Press Association and 16 South Carolina daily newspapers, contained findings from surveys distributed to nearly 200 members of county councils and school boards as well as data from visits to 65 sheriff's offices and police departments. Research for the audit began mid-September and ended earlier this month. Reporters and other newspaper representatives handed out 13-question surveys to the officials, asking them about the state's laws on executive sessions, the closed-door meetings the law allows only in extremely specific circumstances. Media representatives also visited police departments across the state as members of the public to request crime incident reports. The journalists did not divulge their media ties unless asked explicitly, in an attempt to see if the agency released the same number of records to the public as to the press. Twelve sheriff's departments and five police departments out of the 65 agencies visited refused to let people review crime and accident reports, which are public information by law, and many charged high rates for copies.

The general public is supposed to be able to obtain reports at a reasonable cost, typically the cost of duplication. The Freedom of Information Act requires police to make available crime incident reports for the previous 14 days. "The law is very clear. [The reports] must be provided," state Attorney General Henry McMaster told AP. Three-fourths of the law enforcement agencies complied with the requests in full, Jeff Moore, executive director of the South Carolina Sheriff's Association told the AP. "The ones that didn't, I don't know why they didn't," he said, saying that in some instances, the staff may have been unclear as to what they were supposed to disclose to the public. The report shows that reporters were treated better than the general public in many cases. Once their news affiliation was divulged, agencies were more willing to waive fees and, in some cases, to hand over reports. The audit found that the Aiken and Greenville County Sheriffs' Departments charged the most for incident reports, requesting $6 per record. "I think Greenville is trying to make money off the citizens requesting information, and that's contrary to the law, " Jay Bender, an attorney representing news organizations, told AP. Law enforcement agencies in Anderson County, Camden, Kershaw County, Lancaster, Newberry County and Saluda all charged $5 for the records -- a price McMaster protested. "A lot of people just don't have five or six dollars to put down for a copy of a document from their government," he told the AP. "The cost ought to be free or either rock-bottom low."

Tabulating the charges imposed by 32 of the 65 agencies audited, researchers found that the average cost was about $2.87. The review also looked at how elected officials conducted public business in closed-meetings, and whether their idea of proper executive session practice fell within state law. A quarter of the elected officials who responded said they had spoken on topics in executive sessions beyond what they had told the public they would discuss. The survey also showed that three-quarters of the nearly 200 officials questioned were willing to sign affidavits swearing they stayed on track in regards to their closed conversations, but not as willing to record those conversations. The findings have prompted discussion about possible changes to the open meetings and records laws next year. Legislators can expect to see proposals to change the executive session law to potentially include signing mandatory affidavits, and to limit copying costs for crime and incident reports to the public, according to the S.C. Press Association.

Source: Reporters Committee for Freedom of the Press