In 2009, Gannett Vigorously Fought for Access to Courts, Defended Libel and Privacy Claims
In 2009, Gannett was in the forefront in pushing for access to court proceedings and public records. The company fought a number of libel and privacy claims. And we were aggressive in blocking inquiries into anonymous posters in our forums and story comments.
Barbara Wall, Vice President/senior associate general counsel, and her team work tirelessly with editors and journalists across the company to obtain the best possible results in these critical areas.
On behalf of all Gannett journalists, we thank Barbara and her colleagues for their careful guidance. And we encourage our editors to consult the Law Department when they face situations with legal consequences.
In this two-part Legal Watch roundup, Barbara reviews the dozens of cases involving Gannett properties.
From Barbara W. Wall: Legal Watch 2009 Media Law Developments – Access to Courts, Records
In 2009, Gannett newspapers and broadcast stations continued to press for access to courtroom proceedings and public records, filing legal challenges to courtroom closings and government stonewalling efforts across the country. Though each case filed did not result in an unqualified victory, every challenge, regardless of the outcome, sent the clear message to local officials that Gannett can be counted on to defend the public’s right to know.
ACCESS TO COURTS AND JUDICIAL DOCUMENTS
As in years past, Gannett battled for access to court proceedings and public records that were of vital public interest.
Phoenix/ TV Phoenix: In Re Search Warrant Records – The Arizona Republic and KPNX-TV fought successfully to unseal police search warrant records relating to the investigation of a “sweat lodge” ceremony near Sedona which resulted in the deaths of three participants and hospitalization for 20 others. The documents revealed that the event leader, self-help guru James Ray, sat in the shade outside the lodge while others dragged unconscious victims to safety.
Phoenix: State v. Romero – A Greenlee County judge ordered the release to The Arizona Republicof letters written to an Arapahoe County judge who had been removed from a high-profile murder case. The case involved an 8-year-old boy who killed his father and Tim Romans, a man who had rented a room from the boy’s family. Romans’ wife and daughters wrote the letters, which urged the judge to place the boy in juvenile detention instead of allowing him to remain in his mother’s custody.
Cincinnati: Cincinnati Enquirer v. Heath — When the defendant in a high-profile murder case killed himself in his jail cell, The Cincinnati Enquirersought access to the case file. In response, the court released previously sealed evidence and then dismissed the Enquirer’s motion for access to those records as moot. On appeal, the Enquirer contended that it was entitled to recover attorneys’ fees for its efforts. The Ohio Supreme Court agreed and sent the case back to the lower court, which awarded the newspaper more than $13,000.
Detroit: People v. Beatty and Kilpatrick — The judge handling the misconduct trial of the former Detroit mayor and his chief of staff ordered all remaining sealed text messages released to the press and public, rejecting the privileges asserted by the mayor’s counsel “in light of the necessity of shedding light on governmental misconduct.”
Lafayette (La.), Alexandria, Monroe, Opelousas, Shreveport, USA TODAY: In the interest of Mychal Bell — After the trial court order granting the newspapers access to the sealed records in the “Jena Six” proceedings was reversed on appeal, the Louisiana Supreme Court declined to hear the case. The appeals court upheld the public’s right to attend juvenile proceedings, but denied access to the court records and transcripts.
Louisville: Commonwealth v. Dillen — The Courier-Journal at Louisville opposed a defense motion to seal medical records filed in a criminal abuse case against a behavioral analyst who allowed a hospital patient to bang her head on the floor more than 100 times during a treatment session. The newspaper’s efforts failed, however, because the court permitted the parties to forego the rule requiring criminal discovery to be filed with the court, thus thwarting The Courier-Journal’s right to access filed documents.
Louisville: Commonwealth v. Stinson — The Courier-Journal successfully challenged an order barring the public and the press from jury selection in a high-profile negligent homicide case against a high school football coach. The case was filed after a player died during pre-season practice.
Louisville: Eastridge v. Courier-Journal — An appeals court judge affirmed a trial court order that granted The Courier-Journal access to the juvenile court file relating to Kenneth Eastridge’s 1996 guilty plea to reckless homicide, which he entered as a 12 year old. The newspaper successfully argued that Eastridge’s 2008 guilty plea for the murder of a fellow Iraq war veteran created a “good cause” exception to the juvenile code’s confidentiality provisions. Eastridge has appealed the release.
Louisville: King v. King — When The Courier-Journalwent to the courthouse to review the 20-year-old divorce file of mayoral candidate Jim King, the clerk informed the reporter that the file had been sealed. In less than a week, the newspaper’s challenge was on file, and the court unsealed all but one record. A last-ditch effort by the parties to keep the file closed was abandoned after the newspaper quickly responded by filing a new motion for immediate release.
Louisville: U.S. v. Lawson — Ruling on a motion filed by The Courier-Journal, a federal judge unsealed the transcript of a pretrial hearing in a highway bid tampering case involving the former state transportation secretary.
Nashville: In Re: National Health Care Litigation — The Tennessee Supreme Court denied The Tennessean’s efforts to unseal deposition testimony in a lawsuit that arose out of a nursing home fire, rejecting the newspaper’s argument that the trial judge failed to make specific findings as to why the testimony should not be made public.
Phoenix: State v. Orbin — After initially refusing to release to The Arizona Republic transcripts of juror examinations resulting from a juror question, an Arizona trial judge reversed course and unsealed all the documents sought by the newspaper. The defendant was on trial for the murder of her art dealer husband.
Tallahassee: State v. Bradshaw — One of two defendants charged in the murder of an undercover police informant (Bradshaw) was convicted by a Tallahassee jury in December 2009. The other defendant (Green) will be tried in October 2010. After the Tallahassee Democrat challenged blanket sealing orders in 2008, the court adopted guidelines mandating the release of all sealed discovery after jury sequestration. Because the cases against the two defendants were severed, however, the still-sealed discovery will remain that way until the Green jury is sequestered next year. For now, the Democrat has confirmed that all evidence introduced during the Bradshaw trial is public. Also worth noting: In November the Democrat forced the judge to suspend jury selection in Bradshaw — which he was conducting in private — and resume only after allowing the Democrataccess to the proceedings.
Tallahassee: State v. Hilton — The judge presiding over the trial of Gary Hilton for the murder of a female hiker ruled that certain discovery documents would remain temporarily sealed without an opportunity for the Tallahassee Democrat to be heard. The Democrat objected, but the judge claimed that he had already made the necessary findings in support of closure.
USA TODAY: Khan v. Gates — USA TODAY, along with The Associated Press and the New York Times, sought disclosure of pleadings filed with the U.S. Court of Appeals for the D.C. Circuit by 9/11 detainee Majid Khan detailing his allegations of torture by the CIA. The government claims the documents must remain sealed because Khan’s filings contain classified information. The court dismissed the appeal as moot however, because it had ordered the files transferred to the trial court.
OPEN RECORDS, OPEN MEETINGS
Asbury Park: Asbury Park Press v. Monmouth CountyA — After a New Jersey appeals court found that Monmouth County had violated the state open records act by refusing to disclose documents reflecting its settlement of a sexual harassment suit, the trial court ordered the county to reimburse the newspaper more than $12,000 in legal fees.
Brevard, Fort Myers, Pensacola, Tallahassee, TV Jacksonville, TV Tampa: Associated Press v. Florida State University Board of Trustees — Gannett’s Florida newspapers and TV stations were among the news organizations that convinced a Florida appellate court to grant access to records generated by an NCAA investigation. The probe was into allegations of academic misconduct at Florida State University’s Athletic Academic Support Services program. An NCAA panel issued a report penalizing FSU in March, and FSU appealed. To prepare the appeal, FSU’s outside lawyers reviewed NCAA records on the NCAA’s secure custodial Web site. The media organizations sued for access to those files, which the NCAA and FSU contended were not public records. The trial and appellate courts sided with the press and agreed that documents stored on a private computer — but accessed and viewed by an outside law firm representing the state university — are subject to Florida’s open records law. The NCAA has appealed to the Florida Supreme Court. Meanwhile, the media organizations have filed a motion to recover legal fees.
Cincinnati: Enquirer v. Ronan — The Ohio Supreme Court ruled that The Cincinnati
Enquirer’s claim for attorneys’ fees remained intact even though the open records suit in which the fees were incurred had been dismissed as moot. The newspaper had challenged the Cincinnati Public School system’s refusal to disclose the resumes of school superintendant candidates at the time they were received. The Supreme Court held that the release of the requested recordsafter the lawsuit was filed did not erode the newspaper’s standing to seek fees. The court remanded the fees request for further consideration.
Des Moines/ Iowa City: University of Iowa v. Des Moines Register and Iowa City Press-Citizen — The Des Moines Register and Press Citizen of Iowa City withdrew their open records requests for campus sexual assault investigation records in exchange for the university’s dismissal of the lawsuit it had filed rather than respond to the requests. On the heels of the dismissal, the Register made a new request in a letter that expressed the newspaper’s disappointment with the university, which made no effort to work with the newspaper instead of first seeking a declaratory judgment from the court.
Detroit: Free Press v. City of Detroit — On Dec. 23, 2009, a Wayne County trial court granted the Detroit Free Press’s motion to recover more than $450,000 in attorneys’ fees it incurred in filing a lawsuit to force the City of Detroit to comply with Michigan’s open records statute. The award is a fitting end to the newspaper’s access suit against the city, which resulted in the production of records that confirmed criminal misconduct by former mayor Kwame Kilpatrick. Kilpatrick wound up in jail, and the Free Press was awarded a Pulitzer Prize for its reporting on the mayor’s misconduct.
Detroit: Detroit Police Officers Association v. City of Detroit — The Detroit Police Officers Association sought an injunction which would stop the city from complying with a Free Press open records request for the mug shot of a police officer accused of theft. The judge’s refusal to enjoin release of the photo was affirmed by the Michigan Court of Appeals.
Fort Collins: Fort Collins Coloradoan v. Board of Governors of Colorado State University — The Coloradoan at Fort Collins and other Colorado news organizations convinced a Larimer County trial court that Colorado State University violated the state open meetings act when it met in executive session to deliberate on a candidate for the open chancellor position. The court ordered CSU to release recordings of the closed session. CSU filed a motion for reconsideration, but then agreed to settle, producing the tapes as ordered, and paying the newspapers’ attorneys fees.
Green Bay: Green Bay Press-Gazette v. City of Green Bay — The Green Bay Press-Gazette prevailed in a lawsuit challenging the city’s denial of its open records law request for all 2007-08 invoices from outside counsel. The court ordered the city to pay damages and to reimburse the newspaper for the legal fees it incurred in filing the action.
Louisville: Board of Education of Jefferson County v. Courier-Journal — The Jefferson County School Board appealed an attorney general opinion condemning closure of the June 2009 meeting at which the board evaluated the superintendent’s performance. The court rejected the appeal, holding that the superintendent’s evaluation should have been conducted in public, fining the board $100 and awarding attorneys’ fees to The Courier-Journal.
Louisville: In re: Courier-Journal/ Justice and Public Safety Cabinet — The state attorney general held that the Justice and Public Safety Cabinet properly withheld records of an internal investigation involving a youth development center because a state police investigation of the center was still active.
Louisville: In re: Courier-Journal/ Kentucky Unemployment Insurance Task Force — In response to a Courier-Journal request, the Kentucky Attorney General issued an opinion finding that the Kentucky Unemployment Insurance Task Force violated the state open meetings act by meeting privately in small groups to review proposed changes to the state’s unemployment insurance program.
Louisville: Kentucky State Police v. Courier-Journal — The Franklin County Circuit Court affirmed its ruling that the state police violated the state open records act by denying the Courier-Journal’s request for an electronic copy of the state sex offender registry. As well, the court ordered the state police to reimburse The Courier-Journal for the legal fees it incurred.
Louisville: U.S. v. Lawson — After the state Attorney General determined that The Courier-Journal’s open records law request for a proffer of testimony from road paver Leonard Lawson in a 1983-85 bid tampering investigation should be granted, Lawson obtained a temporary injunction against release. The Court of Appeals refused to dissolve the injunction, and the newspaper has petitioned the Kentucky Supreme Court for relief.
Manitowoc: Herald Times Reporter v. City of Manitowoc – The City of Manitowoc settled an open records lawsuit filed by the Herald Times Reporter seeking access to withheld portions of a police officer’s disciplinary record. The officer had been convicted of drunk driving. The city provided access to the full file and agreed to reimburse the newspaper the $3,250 it spent in legal fees.
Monroe: News-Star v. Monroe City School Board — The Louisiana Supreme Court declined the News-Star at Monroe’s request to review an appeals court decision denying access to part of a school board employee’s personnel file. The appeals court’s attorney fees award still stands, however.
Morristown: Daily Record v. Town of Dover — The New Jersey Government Records Council sided with the Daily Record, ruling that a confidentiality clause the Town of Dover included in a former town administrator’s $250,000 buyout package “does not override the public’s right to access” under the state open records act.
Nashville: Doe v. Briley — A federal appeals court upheld a ruling dissolving a 1974 consent decree — championed by a Vanderbilt law professor — that required Nashville police to keep arrest records confidential unless and until the defendant is convicted. The Tennessean argued successfully that enforcement of the consent decree would conflict with access law that had developed since the ruling was entered in 1974.
Phoenix: Arizona Republic v. Bureau of Indian Affairs — In May, a month after the newspaper was forced to file a FOIA lawsuit against the Bureau of Indian Affairs to compel disclosure of a completed investigation into a series of rapes on the White Mountain Apache Indian Reservation, the assistant U.S. attorney assigned to the case called the newspaper’s lawyer to apologize, noting it was an embarrassment that the government had “strung [The Arizona Republic] along.” The BIA then undertook a “rolling” production of 3300 documents in just over a month.
Phoenix: Arizona Republic v. City of Surprise — Following partial disclosure in response to its open records law request, The Arizona Republic filed a petition for access to the remaining records relating to internal police investigations of three officers. The judge ruled in the newspaper’s favor, ordering the city to disclose five categories of records out of the six requested.
Reno: Gazette-Journal v. Anderson — The Reno Gazette-Journal filed a petition challenging the Washoe County Health Department’s refusal to release the name of the daycare center with a confirmed case of swine flu. The court summarily denied the petition, a decision the newspaper has appealed.
Reno: Gazette-Journal v. Gibbons — The Gazette-Journal has appealed a trial judge’s ruling finding that the governor need only release six of the 104 e-mail messages the newspaper requested under the state open records law. The court concluded that the 98 e-mails withheld had nothing to do with state business, even though they were sent from the governor’s official e-mail account.
Tucson: LaWall v. Arpaio — The Court of Appeals awarded the Tucson Citizen $29,325 to reimburse the newspaper for the attorneys fees it spent fighting Maricopa County Sheriff Joe Arpaio’s appeal of an earlier $25,241 attorneys fees award. The newspaper won the first award for prevailing in an open records lawsuit challenging the Pima County Attorney’s office’s refusal to disclose records relating to the transfer of a gambling forfeiture case to Maricopa County. In all — after tacking on more than $3,700 in post judgment interest — the newspaper was awarded more than $58,000. The Arizona Supreme Court denied Arpaio’s appeal of both awards.
Westchester: In the matter of the application of the Journal News v. Town of Carmel — In response to a petition filed by The Journal News at Wilmington, the trial court “vacated and annulled” the town’s decision denying access to the cell phone records of the town board and supervisor.
PRIOR RESTRAINT, GAG ORDERS
Gannett aggressively opposes “prior restraints” — i.e. court orders which prevent the media from publishing or broadcasting information — and “gag orders,” which prohibit individuals involved in a case from speaking publicly.
Tallahassee: Hoffman v. City of Tallahassee — Rachel Hoffman’s estate sought an order gagging the city from making public comments about the estate’s lawsuit against the city. The trial judge refused to enter the order, ruling that the plaintiff had not made a “clear and convincing” demonstration that fair trial rights were likely to be compromised and noting that “other remedies” were available to guarantee a fair trial.
TV Knoxville: State v. Cobbins — A Tennessee trial court agreed with WBIR-TV and denied two motions filed by defense lawyers in a double car-jacking/ murder case. The first motion asked the judge to bar the media from covering the trial because of the story comments that coverage was likely to generate on the station’s Web sites. The second motion asked the judge to order the media to either block comments or require posters to use their real names.