Cincinnati Enquirer sues for access to stadium documents

Thursday, June 8, 2000

A roundup of recent court cases, legislation and disputes involving public records.

CINCINNATI — The Cincinnati Enquirer has sued Hamilton County and four companies building the county’s new pro football stadium, demanding access to documents related to the project’s cost overruns and construction schedule. County officials provided copies of documents they received concerning the cost increases, but declined to release other documents circulated among the construction companies, the newspaper said. County officials said those documents were generated by private companies and are private, according to the suit filed June 5 in the 1st Ohio District Court of Appeals. The Enquirer argues that the documents are public records because the companies are employed on a public-works project. Carl Stich, an assistant county prosecutor who has been representing the county on stadium issues, said June 6 that he had not seen the lawsuit and could not discuss it. Contractors building Paul Brown Stadium said in February that cost increases could boost the “guaranteed maximum price” of the stadium itself by $20 million to $45 million. With other costs including land acquisition and site preparation, the project’s cost is more than $400 million. County officials have said they still expect the stadium to be ready for the Cincinnati Bengals’ first preseason home game Aug. 19 against the Chicago Bears. If it is not ready, the Bengals’ lease deal says the county must pay the team $2 million for each missed preseason game and $4 million for each missed regular season game. Associated Press

Georgia: Sheriff must allow newspaper access to records, state Supreme Court says
ATLANTA — The Georgia Supreme Court last week affirmed a lower court ruling requiring the Sumter County sheriff to comply with an Open Records Act request filed by the Sumter Free Press. The publication contended that since February 1999, Sheriff Randy Howard had refused it access to all public records created and maintained by his office. A superior court judge issued a writ of mandamus, directing Howard to comply with the law and to pay the newspaper $2,000 in attorney fees plus court costs. The court found that Howard withheld the information because the newspaper published articles critical of him and members of his family. The state Supreme Court found no merit in the sheriff’s appeal. Associated Press

South Carolina: Ports Authority wants $2,505 to open expense records
CHARLESTON — For the second time this year, the South Carolina State Ports Authority wants a group to pay more than $2,500 for access to public records. The agency asked Contain the Port, a group that opposes the proposed Global Gateway steamship terminal, to pay $2,505 for locating and copying agency expense records. Contain the Port submitted a state Freedom of Information Act request to see a year’s worth of expense receipts generated by the agency’s executive, public relations and marketing staff. Ports authority spokesman Byron Miller said the authority was not trying to keep the information secret, but “simply trying to recover a reasonable portion of what it costs to get them this information.” The cost is “irresponsible to the public” and “it makes me wonder what they’re hiding,” said Frank Heindel, president of Contain the Port.

Earlier this year, the authority sent a $2,779 bill to the South Carolina Coastal Conservation League and the Southern Environmental Law Center for copies of documents related to the proposed terminal. That later was reduced to $439. The state Freedom of Information Act permits agencies to collect fees to cover the actual cost of searching for and making copies of documents. It also provides for a fee waiver or reduction, however, if releasing the records is in the public interest, and no fees can be charged just for determining if the records are subject to public disclosure. Heindel said his group wanted to find out if authority executives were spending money wisely. The authority said it would take 120 hours and $2,505 in clerical staff time to search more than 550 expense vouchers and other documents.

“This simply defies reason,” said Billy Want, the group’s lawyer. He expected it would take a day or so to retrieve the records. But a reporter for The (Charleston) Port and Courier was shown how the records must be gathered. Expense files are stored on shelves in a room at authority headquarters. Locating a specific file took several minutes. Some contained a simple expense report while others had numerous receipts. Files need to be copied and certain personal information, such as credit card numbers, must be blanked out. Authority accountants estimated it would take about 13 minutes per voucher and would take a person working three weeks to complete the job. Associated Press

Alabama: Judge says city council violated open-meetings law
TUSCALOOSA — A state judge ruled that Tuscaloosa’s mayor and City Council violated Alabama’s open-meetings law by keeping the names of potential school board members secret. The ruling by Circuit Judge Bernard Harwood is the latest development in a lawsuit filed last year by The Tuscaloosa News, alleging that the mayor and City Council were violating state open-meetings and public-records laws by discussing the potential board members in private. The suit asked the judge to stop those meetings, which Harwood ordered on June 2. Assistant City Attorney Tim Nunnally said he was reviewing Harwood’s order and then would make a recommendation to his clients.

The City Council no longer appoints members to the school board. Voters have decided to change to an elected board starting next year. But the issues in the lawsuit will affect the process used to appoint members of other city boards and commissions. Under state law, city officials cannot hold executive or secret sessions to consider, discuss, recommend or select people for appointment except when their “good name or character” is involved. Harwood said city officials violated state law by:

  • Keeping the names of applicants secret, despite whatever promises of confidentiality might have been provided to the potential school board members.

  • Discussing whether applicants held a position of a civic nature; whether the applicant had children in the city school system; and in mentioning the occupations of any candidate. Those matters do not relate to “good name or character” and, as a result, cannot be discussed in secret.
  • Discussing basic job qualifications and criteria during closed session.
  • Establishing, then announcing, the final consensus that three particular names would be recommended by the Education Committee to the City Council on April 1, 1999.

    Still to be decided is whether basic information about the candidates, such as their resumes, should be kept secret. A hearing on that matter is scheduled for July 25. Harwood is also to rule whether Tuscaloosa Mayor Al DuPont and City Council members must pay attorneys’ fees in the case. Associated Press

    Kentucky: City’s officials improperly withheld records, state attorney general says
    HOPKINSVILLE — City officials improperly withheld public records from a Hopkinsville newspaper, a state attorney general’s opinion says. The officials further “subverted the intent” of the Open Records Act by failing to give a reporter timely access to other records, according to the opinion released June 5. The case arose from a request by the Kentucky New Era on March 20 to inspect the database of Hopkinsville business or privilege licenses. The reporter, E.L. Gold, identified 22 specific entries that he believed to be free of confidential information, such as fees based on net profits. The Open Records Act gives agencies three days to tell a requester when records will be available. Three days after Gold’s request, city Clerk T. Mark Withers II said he was too busy to set a date but would “work on a timetable and communicate that to [Gold] at the first available opportunity.” On April 11, Gold was told he could pick up a computer disk with 11 of the 22 requested entries. Of the remaining 11, six were not in the database, and five were excluded on orders of the city attorney because the businesses had been told the city would keep their information confidential.

    In his appeal to the state attorney general, whose opinions are binding in disputes about public records and meetings, Gold said the city unreasonably delayed access. He also said it was illegal to withhold records because of a promise of confidentiality. Assistant Attorney General Amye L. Bensenhaver agreed. It is a legal requirement, not a mere formality, to answer an open-records request within three working days, Bensenhaver wrote. Withers’ office took 22 days to release 11 records that were readily accessible. “We therefore conclude that the city subverted the intent of the Act short of denial of inspection,” Bensenhaver’s opinion said. Nor was it legal to withhold records solely because of a promise of confidentiality, the opinion said. “This office has consistently recognized that business license records are, in general, open to public inspection,” Bensenhaver wrote. Associated Press

    Montana: State asks judge to decide if it can release mining company records
    HELENA — The state Department of Environmental Quality asked a judge on June 2 to decide whether the agency can disclose documents about the financial condition of a mining company facing a fine. Canyon Resources Corp. faces a penalty for water-quality violations at its mine near Lewistown. An environmental group has asked to look at the files, and claims they are public records. The company has insisted the documents contain confidential information that must be kept secret. The department said it concluded the information about Canyon Resources’ finances, which was requested by the Montana Environmental Information Center, should not be released without a court order. Curt Chisholm, deputy director of the Department of Environmental Quality, said officials weighed the public’s right to know what is in the file against the company’s constitutional right to privacy, and decided the legal question belongs in court. He said the department would abide by whatever ruling is issued, and would not appeal.

    The department filed a request before state District Judge Dorothy McCarter of Helena, asking her to determine which right is the stronger in this case. The unusual action by the state stems from a $330,000 fine the department assessed against Canyon Resources in 1998, for polluting water downstream from its Kendall mine near Lewistown. The agency obtained financial records from the company to determine its ability to pay the fine. Late last month, MEIC asked to look at Canyon’s federal and state tax returns, cash-flow statements and other financial records the company had submitted at the request of the Department of Environmental Quality. MEIC argued the company has no privacy right, since the records were obtained by the state as part of an enforcement action. Because the files involve a violation affecting Montanans’ constitutional right to a clean and healthful environment, the public’s right to know outweighs any privacy claim of the mining company, MEIC said.

    In the court petition, the department said it recognizes the constitutional right of the public to view government documents except in cases where the rights of privacy are more important. If the department releases the documents, Canyon probably would sue the state again for allegedly causing it more financial harm, the agency told McCarter. The department said Canyon, upon hearing of the request for disclosure of the files, asked that the records be returned. The department said it concluded such a move would be illegal. Associated Press