Winter 2004 AROUND THE SOUTH

TENNESSEE
Nearly a third of records requested in statewide audit are denied

Dec. 1, 2004 -- Nearly one-third of the 356 public records requested in Tennessee's first public-access audit were denied during a two-day test of how local government officials respond to requests for public information.

Some of the more than 90 reporters, college students and volunteers in Tennessee's first public-access audit were questioned at length, yelled at, forced to show their driver's licenses and -- in one county -- incorrectly told that a criminal incident report was available only to the crime victim, the Associated Press reported.

Eighty-eight percent of requests for the last approved minutes of the zoning board were granted within 48 hours, but only 60 percent of school systems supplied the records within 48 hours, the audit showed. Thirty-six of the 91 school systems surveyed denied or indefinitely delayed action on records requests.

The Tennessee Coalition for Open Government announced publicly in June its intentions to conduct a statewide public records audit, and stories about the announcement appeared in major newspapers and were transmitted statewide via the AP. Government offices that were audited were not given specific prior notice that they were being audited, The Tennessean reported.

"It was the first audit by this particular body," Mike Fishman, president of the Tennessee Press Association and assistant publisher of The Citizen Tribune in Morristown, Tenn., said in a phone interview. "A lot of good has come out of this audit -- it has certainly sparked conversation in various counties."

"The findings are somewhat predictable and it varies across the state," he added.. "Anything we are doing to ensure the public's right to know is good."

City and county offices in all 95 Tennessee counties were visited to assess the availability of the following public records: last recorded minutes of a planning commission or zoning board, two recent crime incident reports and crime logs from the local sheriff and a local police department, and the local school system's latest report on the number of expulsions or suspensions for drugs, weapons and violence, the AP reported.

Frank Gibson, the coalition's executive director, told the AP that the state's Public Records Law and the Sunshine Law, which prevents elected officials from meeting in secret, were model statutes when they were approved in 1957 and 1974, respectively. The General Assembly has since eroded their effectiveness by approving more than 200 exemptions, said Gibson, a veteran Nashville journalist who still works part-time as an editor for The Tennessean .

Members of the coalition include the Tennessee Press Association, the Tennessee Association of Broadcasters, the Associated Press, the Society of Professional Journalists, citizen watchdog group Common Cause, and the state's four most circulated daily newspapers: The Tennessean, The Commercial Appeal, The Knoxville News Sentinel and Chattanooga Free Press .

Source: Reporters Committee for Freedom of the Press

KENTUCKY
Foundation that spends public money must release records

Dec. 22, 2004 -- A foundation formed to promote economic development in one Kentucky county must release documents relating to a deal it struck with a chicken slaughterhouse, the Kentucky Court of Appeals ruled Dec. 17 in Frankfort. The Ohio County Industrial Foundation's disbursement of publicly funded business incentives to the slaughterhouse qualified it as a public agency, the court held.

The Wisconsin-based Citizens for a Better Environment had asked the private non-profit foundation for documents relating to a program that awarded Perdue Farms Inc. $500,000 in taxpayers' money every year.

In 1994, the foundation and the county offered Perdue Farms Inc. contractually guaranteed benefits if it opened a chicken processing plant in Ohio County. Upon opening the plant, Perdue would receive $500,000 every year its operations significantly contributed to employment in the county.

A county tax was imposed to pay the $500,000 and initially, that money was channeled to a bank account held by the foundation. The foundation then forwarded the money to Perdue once it had certified that the plant was meeting job creation goals.

By 2000, the foundation had paid Perdue $2 million in publicly funded corporate incentives. But when CBE requested related documents, the foundation claimed that it was not a public agency and refused to respond to the citizens' group.

A trial court agreed with the foundation, likening it to an escrow agent for the public funds.

Judge Laurance VanMeter, writing for a three-judge panel of the Kentucky Court of Appeals, reversed. State open records law defines a public agency as a body that expends public money and the foundation's annual expenditure of $500,000 in taxpayer money clearly met that definition, VanMeter said.

The foundation argued that it only passed the money to Perdue, but did not expend it. VanMeter noted that Webster's Dictionary definition for "expend" is "to pay out."

Source: Reporters Committee for Freedom of the Press

FLORIDA
Public official cannot claim copyright of government records

Dec. 9, 2004 -- A Florida government agency can only hold a copyright of a public record and keep it out of public view if the state legislature has approved it by a two-thirds vote, the Florida Court of Appeals in Tampa held Dec. 1. The decision came in response to a county appraiser's attempt to restrict public use of what he claimed were copyrighted government records.

The controversy began when Micro Decisions Inc. submitted a records request to Collier County Property Appraiser Abe Skinner for access to Geographic Information System (GIS) records he created for county use. GIS records are aerial maps that frequently integrate geographically referenced statistics.

Skinner conditioned his release of the GIS records on Micro Decisions' agreement not to sell it to a third party. Skinner claimed that as the records' creator, he held a copyright that allowed the restriction.

Micro Decisions sued in state court to gain unrestricted access to the GIS data. A state trial court ruled that jurisdiction belonged to a federal court because Skinner's defense dealt with federal copyright law. A federal court disagreed, holding that Micro Decision's claims clearly arose out of state law, and sent the case back to the Florida state judicial system, where it came before the Court of Appeals.

The court noted that for nearly 100 years, Florida case law has prohibited government discrimination against commercially motivated records requesters.

Because Skinner's copyright defense would carve out an exemption to the open records law, the court held that its validity hinged on whether the Florida Legislature had ever authorized its use. The Florida Constitution's freedom of information provision states that open records exemptions are only valid under a two-thirds vote from the legislature.

Source: Reporters Committee for Freedom of the Press

ARKANSAS
'Delete' button weakens the open records law

Dec. 2, 2004 -- Arkansas has a Freedom of Information law that gives citizens the right to inspect public records. The law's effectiveness is severely limited by the lack of a law requiring government agencies to retain records so they can be inspected.

David Ivers of Little Rock, a lawyer and member of a group trying to draft a records-retention law, has gone so far as to say, in a letter to state Rep. Jodie Mahony of El Dorado, that "the absence of a records retention requirement in the law has made the Freedom of Information Act virtually useless now that everything is in electronic format and state agency officials, including top officials at the Department of Human Services, routinely and quickly delete their electronic mail and keep no paper copies.

"That makes it virtually impossible for the many persons and entities regulated by DHS and various other agencies to find out how decisions that affect them are being made."