Georgia First Amendment Foundation

SPRING 2007 REPORT

GEORGIA FOI ACCESS

GEORGIA FIRST AMENDMENT FOUNDATION

Law enforcement investigatory privilege does not exist

Tennessee Supreme Court says it is up to the legislature to enact exemptions to open records law based on public policy

Nashville, May 25, 2007 -- Tennessee does not recognize a law enforcement investigatory exemption to its public records law, the Supreme Court has ruled.

The court's decision means reporters from the Jackson, Tenn., Sun will be able to access at least portions of 369 witness interview cards created by the local police department since 2004. The interview cards contain various biographical information and physical descriptions of people stopped by police under suspicion that they committed a crime, but who were not ultimately arrested or charged.

Even though no provision of the Tennessee Public Records Act blocked their release, the police department withheld access to the cards, arguing that Tennessee should recognize a privilege that exists in other states for information related to law enforcement investigations.

The newspaper sued, and the trial court judge who heard the arguments disagreed with the police and ordered the cards released. The state intermediate court, however, said Tennessee law did provide for a law enforcement investigatory privilege and that it blocked access to the cards. On May 25, the Supreme Court overturned that decision, saying that while there may be arguments in favor of keeping the cards confidential, it is up to the state legislature, not the courts, to enact such exemptions to the Public Records Act.

"Although we are sympathetic to the City's concerns about the potential consequences of disclosing the field interview cards, the General Assembly, not this Court, establishes the public policy of Tennessee," the court wrote.

The court pointed out that the Tennessee Public Records Act contains a dozen law enforcement-related exemptions, none of which applied to interview cards that were not being presently used in ongoing investigations.

However, rather than immediately order the cards released, the Supreme Court sent the case back to the trial judge, who will review any cards identified by the police department as being utilized in an ongoing investigation. The Supreme Court emphasized that only those portions of the cards being used in such investigations could be withheld, and other information a card contains should be made public.

The Supreme Court also awarded the newspaper attorney fees in the case, ruling that the police department should have more carefully considered the wisdom of relying on a law enforcement investigatory privilege that had never existed in Tennessee and that one state intermediate court had explicitly declined to recognize in 2004.

On that note, the Supreme Court also let stand an injunction implemented by the trial court that requires the city of Jackson to respond in writing to all future Public Records Act requests made by the newspaper.

"Requiring the City to provide a written response articulating its reasons for nondisclosure will secure the purposes of the Public Records Act by ensuring that the City denies such requests only after thoughtful and careful consideration," the court wrote.

(Schneider v. City of Jackson, Media Counsel: Charles M. Purcell and Matt S. Shepherd, Waldrop & Hall P.A., Jackson, Tenn.)

Source: Reporters Committee for Freedom of the Press

North Carolina publisher arrested for refusing to leave a closed meeting of the town�s airport authority

Graham, N.C., June 4, 2007 -- A newspaper publisher disagreed so strongly with the local airport authority's reason to meet behind closed doors that he refused to leave and was subsequently arrested and charged with trespassing.

Tom Boney, publisher of the Alamance News, a weekly newspaper in Graham, had found out earlier that the Burlington-Alamance Airport Authority planned to meet behind closed doors. He planned to object to the closure and even talked to officials in the state attorney general's office who assured him he had a valid case for arguing the meeting should be open, he said.

The board began the meeting in the open, but then airport officials said they would close the meeting. The board cited an exception in the state's Open Meetings Law that allows legislative bodies to close meetings to discuss economic development.

Boney said he objected to leaving on his own because the board members refused to promise him that they would not talk about or vote on approving an $11 million loan for a land purchase or a corresponding budget increase. "And their response was, 'We're not going to answer any questions about that,'" Boney, 52, said.

Sheriff Terry Johnson arrived and arrested Boney on a misdemeanor count of trespassing because Boney remained on the premises after being told to leave by the people in charge of it at the time, sheriff's spokesman Randy Jones said.

Boney is scheduled to appear in court on June 25 on the trespassing charge.

Source: Reporter�s Committee for Freedom of the Press

Florida drops �reasonable time� language; updated public records law calls for responses �promptly and in good faith�

Tallahassee, May 22, 2007 -- Public records custodians at government agencies are now required to respond to records requests "promptly and in good faith" after Gov. Charlie Crist signed a bill into law.

Then-Gov. Jeb Bush vetoed a similar bill last year. This year's bill passed through the House and Senate unanimously, though the bill was nearly identical to last year's bill, said Adria Harper, director of the Florida First Amendment Foundation.

The version Crist signed says officials must respond to public records requests "promptly" instead of being filled in a "reasonable" amount of time.

"This law will have a substantial effect on public records requests," Harper said. "The word 'promptly' is a more clear standard that will benefit citizens. The important thing is that public records need to be provided without any sort of delay."

The new law also allows public information officers to choose another officer or employee to inspect public records so records can be processed without unnecessary delays.

Additionally, the name of the substitute officer must be released to the records requester, and the public information officer, or alternate, must be available to respond to requests during regular business hours.

Harper said a common problem citizens and journalists faced was that they could not access public records because a records custodian would be out of town and there was no one in the agency who could retrieve the documents. Similarly, smaller agencies that did not have a designated records keeper were having lawyers work on a limited schedule to get people information.

Source: Reporters Committee for Freedom of the Press

Virginia Tech panel closes part of meeting

Blacksburg, Va., May 24, 2007 � The panel investigating last month's Virginia Tech shootings closed the first three hours of their meeting to the press, while the school's president barred access to the tour of the buildings where 33 people died.

The eight-member Virginia Tech Review Panel cited exceptions in Virginia's Freedom of Information Act that ostensibly shield students' privacy and briefings by law enforcement agencies, according to Roanoke (Va.) Times reporter Michael Sluss.

The panel, which includes former Homeland Security Secretary Tom Ridge and former state judge Diane Strickland, is charged with investigating the April 16 massacre in which student Seung-Hui Cho shot and killed 32 people before killing himself.

Several reporters spoke out in objection before the meeting was closed. The journalists objected to the limited access, saying the exceptions the panel cited in closing the meeting were improperly applied.

"I would like to point out that, though the law allows you to close the meeting . . . it doesn't mandate it," Richmond (Va.) Times-Dispatch reporter Rex Bowman said prior to the meeting being closed.

The panel's chairman, retired state police Superintendent W. Gerald Massengill, said panel members "want this process to be as public as we can make it." "I hope you understand there are certain sensitive materials that are allowable within Virginia law that we must gather," he said. "And to gather that information effectively, we have to do it with some degree of privacy and that is allowable by law."

The panel said it needed to meet privately to discuss student disciplinary, scholastic, medical and mental health records. It also cited the need to receive briefings from law enforcement officials surrounding the actions they took in response to the April 16 shootings.

Source: Reporters Committee for a Free Press

Dept. of Justice orders release of a report of 2004 erasures of Mississippi reporters� tape recordings

Hattiesburg, Miss., May 25, 2007 -- After a two-year delay, a federal law enforcement agency has been ordered to release documents of its investigation of the seizure of two journalists' tape recordings of a speech by Supreme Court Justice Antonin Scalia, according to a lawyer for the Hattiesburg American newspaper.

Leonard D. Van Slyke Jr. said the Department of Justice sided with the newspaper in its Freedom of Information Act appeal and ordered the U.S. Marshals Service to conduct a new search for and turn over documents related to the paper's request.

In 2004, Scalia spoke to a local high school and a U.S. marshal forced reporters from the Hattiesburg American and The Associated Press to eras their taped recordings of that speech. Scalia, who had a policy forbidding taping of his speeches, later apologized for the incident but denied he had instructed the recordings be destroyed.

"Of course it remains to be seen what they will send us, but hopefully they will send unredacted documents," Van Slyke said.

Source: Reporters Committee for Freedom of the Press

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