Judge orders Arkansas sheriff to turn over records

Thursday, March 30, 2000

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

MAGNOLIA — A judge ruled that the Columbia County sheriff violated the state’s Freedom of Information Act by not providing records in a timely fashion. A dispute between the local newspaper and Sheriff Wayne Tompkins resulted in a reporter’s being charged with obstruction of governmental operations during a demand for records and the newspaper suing the sheriff. At the conclusion of a hearing yesterday afternoon, Circuit Judge Larry Chandler gave Tompkins 48 hours to compile documents and records the Banner-News of Magnolia requested by letter on the afternoon of March 20. The newspaper requested the records, most of which dealt with the status of Columbia County jail inmates, after Banner-News reporter Toni Walthall was arrested by Tompkins earlier in the day. The Banner-News sued Tompkins on March 22, alleging that the sheriff had blocked or delayed access to public records, and yesterday’s hearing was on that suit.

Chandler ruled that Tompkins’ initial refusal to grant access to one set of records wasn’t a violation of the FOIA, since those records did not exist. However, the sheriff’s subsequent 72-hour delay to provide other requested records was a violation of the law, Chandler ruled. The judge said the request was a burden on the department but that the sheriff could have told the paper that some records would take longer than others to produce. Records could have been released as they were located, Chandler said. Tompkins released all of the records at the same time, three days after the newspaper’s written request. Chandler said Tompkins did make an effort to comply with the law by making copies of documents and turning them over to Banner-News reporters.

“The problem with that, of course, is that it’s not compliance. Making copies of those records and delivering them to the requesting party just doesn’t meet the statute,” Chandler said. The proper procedure would have been to make the documents themselves available. Chandler said he would rule later on a Banner-News request that the newspaper be found to have substantially proved its case, and the awarding of legal fees. On March 28, Walthall pleaded innocent to a charge of obstructing governmental operations. She entered the plea in Magnolia Municipal Court. Walthall’s trial is set for May 2. Associated Press

New Mexico: Judge cites state attorney general for open-records violation
SANTA FE — Attorney General Patricia Madrid has violated the open-records law that her office is responsible for enforcing, a state judge has ruled. State District Judge Stephen Pfeffer ruled March 27 that Madrid prevented state Natural Resources Trustee Bill Turner from giving public documents to General Electric Co. about a Superfund cleanup site in Bernalillo County’s south valley. The attorney general’s office probably will ask the judge to clarify his ruling and will consider an appeal, says Bennett Cohn, litigation chief for the office. Madrid and Turner have been battling for months over who has authority to collect monetary damages from polluters of natural resources. Madrid sued 19 alleged polluters, including General Electric, last October in connection with contamination at the south valley site. The lawsuit named Turner as an involuntary plaintiff. Santa Fe attorney Michael Campbell, who represents GE, said the company’s request for documents became a hostage in the dispute. The company asked Turner for records regarding the site in August and September. The law requires state agencies to respond within three working days and provide access to public documents within 15 working days. GE’s attorney said that over a seven-month period, the company received a single page out of thousands of pages sought.

The state Supreme Court last year confirmed Madrid’s authority over all “litigation-related” decisions in state government, including the south valley lawsuit. “So we’re being sued for doing what the Supreme Court said we should do, and that is be his (Turner’s) lawyer,” Cohn said. “I’m at a loss to see how that’s a violation.” Pfeffer said Madrid and her office should have enforced compliance with the open-records law regardless of the dispute with Turner or the state’s lawsuit against GE. He said the dispute between Madrid and Turner made things difficult, “but that has nothing to do with General Electric” and its request for documents. Madrid and private law firms working for her office repeatedly ordered Turner and General Electric not to communicate and ordered Turner not to provide public records to the company until the attorney general’s office could review them. Turner refused to release the documents to Madrid’s office unless she replaced his legal counsel, whom she fired last summer. “On one hand, I’m trying to comply with GE’s request and on the other hand, the attorney general is telling me I can’t do it,” Turner told the judge. Pfeffer ordered Turner and the attorney general’s office to gather the documents. He gave Madrid’s office 20 days to review them before release. Associated Press

Nevada: Newspaper seeks access to county officials’ cell phone records
CARSON CITY — State Supreme Court justices are questioning why officials who oversee Nevada’s biggest county should be able to keep details of their cellular phone bills secret. The justices’ questions came yesterday during oral arguments in the Las Vegas Review-Journal‘s bid to get phone records for Clark County officials. Chief Justice Bob Rose said that the high court frequently had turned over its own phone records. “If this court gives out all telephone numbers, why should the county do differently?” Rose asked Deputy Clark County District Attorney Mary-Anne Miller. Rose questioned how a newspaper seeking to uncover government waste could accomplish that objective if it were given records that had portions of the phone numbers blacked out. Miller said the phone records sought by the newspaper included private cellular and home phone numbers of people who spoke with commissioners, and that those people were entitled to privacy rights. Miller added that records with censored numbers would still be useful in efforts to uncover government waste.

Miller also said she understood county commissioners “eyeball” their cell phone records and pay for personal calls. But Review-Journal lawyer Don Campbell said the newspaper couldn’t just take the county’s word in such cases. “County officials may have bad vision when they eyeball records,” he said. “We don’t want them to just eyeball records when it is our money.” To accept the county’s argument would be to effectively repeal Nevada’s sweeping public-records law, Campbell added. The high court will rule at a later date. The Review-Journal in 1998 requested the phone records of the county commissioners, county manager and the director of aviation from Jan. 1, 1996, to Dec. 31, 1997. The newspaper said it wanted the records as part of an investigation into government waste and lobbying and influence of government officials. The county instead released records that had the last four digits of each outgoing call blotted out. The county argued that the newspaper would see the total monthly expenses, each call made that month, the length of the call, whether it was incoming or outgoing and the charge for each call. The Review-Journal sued to obtain the uncensored records but was turned down by District Judge Kathy Hardcastle. The newspaper then appealed to the state Supreme Court. Associated Press/Las Vegas Review-Journal

Kansas: Middle ground seen in crafting open-records bill
TOPEKA — Declaring a House open-records bill unworkable, a state Senate committee chairwoman yesterday urged those at opposite ends of the debate to find common ground in creating an alternative bill. “I want this bill gutted. I want to start from scratch. We need to urge the parties to get together,” Chairwoman Janice Hardenburger said of the substitute for House Bill 2864, which is before her Elections and Local Government Committee. As originally written, the bill’s basic concept involved imposing fines up to $500 for violating the Kansas Open Records Act, and creating a public information officer under the attorney general to handle disputes and enforcement. Those points remain in the bill, but after the House last week loaded it with amendments, supporters said it did more harm than good. Even state Attorney General Carla Stovall, who drafted the original version along with Gov. Bill Graves, rejected the House version. “The bill limits rather than expands the public’s access to open government. We do not support the bill as it now stands,” Steve Phillips, assistant attorney general, told the committee. He noted the House rewrote the bill to bar any Kansan from going to court as a first move if refused access to a public record. Instead, such people first must go to the information officer and begin the time-consuming administrative hearing process. Those who disagree with the officer’s decision then could appeal to district court.

With that and many other contested elements, Hardenburger said the best course would be to start over and have a new bill ready next week. Don Moler, the League of Kansas Municipalities’ executive director, proposed having local governments appoint information officers rather than having one in the attorney general’s office. He also agreed that there should be fines up to $500 imposed by a court, rather than a state information officer as the bill requires. “It’s got some potential. We’re getting close,” David Furnas, the Kansas Press Association’s executive director, said of the league’s proposal. “There’s agreement that there needs to be a penalty. We just need to work out the details.” Mark Tallman of the Kansas Association of School Boards voiced opposition to the bill. He suggested any fine be levied against the employee rather than the agency. Hardenburger immediately rejected that idea, saying the agency is responsible for its employees. The bill followed the November publication of a survey by 19 Kansas newspapers on open-records compliance. Reporters sought records from government agencies in all 105 counties. Agencies denied 34 requests, out of 420 requested. With more than half of the requests, officials demanded more information from the people requesting them than required by law. Associated Press

New Mexico: FOI advocates ask judge to decide which juvenile records are public
DEMING — A district judge says he will consider in July which juvenile records are open to the public. State District Judge Gary Jeffreys ruled last month that juvenile arrest records are public. The decision came in a case that arose after Luna County Sheriff Gary Ciccotelli refused to release the names of four juveniles picked up last year in connection with a burglary. District Attorney Jim Foy had advised Ciccotelli such records are secret until a juvenile is charged. But Jeffreys ruled the state Arrest Record Information Act applied to both juveniles and adults. Albuquerque attorney Martin Esquivel, representing the New Mexico Foundation for Open Government, the Las Cruces Sun-News, The Deming Headlight and KOTS radio, asked for a hearing to clarify what documents are public. Senior trial prosecutor Timothy Flynn opposed the request during a scheduling conference before the judge on March 27. “I think your memorandum was clear and the statutes speak for themselves,” Flynn said. But Esquivel, speaking to the conference by telephone, asked which documents were used in the arrest process and sought a hearing so a list of documents concerning arrests could be spelled out. “What are the public records? We are going to continue to have a dispute unless it is set out,” he said. Jeffreys set a hearing for 1:30 p.m. July 6 in district court in Luna County. Flynn, in a Feb. 7 hearing before Jeffreys, contended children are charged with “delinquent acts,” not crimes, and are not arrested but detained. And, he said, juveniles are not charged until a petition has been filed in court, which can take up to 48 hours. Jeffreys ruled that generally, information about the arrest or detention of a juvenile is public. “Whether or not the juvenile has been formally charged … is not a determinative factor, any more so than it would be for an adult arrested,” he wrote. Associated Press

Colorado: Revenue Department to limit access to driver’s license records
DENVER — Beginning in June, information on millions of Colorado drivers will no longer be available to the public. Until now, driver’s license records had been available to the public unless a person requested that the information be kept private. But under a recent amendment to the federal Driver’s Privacy Protection Act, this information will only be disclosed if drivers give their expressed consent. Prior to the amendment, drivers’ names, addresses, vehicle types and descriptions were available. License photos were available for a small fee. Colorado Department of Revenue officials said a few thousand of the 3 million registered drivers took advantage of the option to keep the records secret. They included television personalities, police officers, victims of stalkers and others who knew they had the option. Last October, Congress amended the federal Driver’s Privacy Protection Act to require a person’s consent for disclosure of driver’s license information. Prior to the amendment, a person’s consent was implied if he or she didn’t request that the information be kept private. South Carolina challenged the law as an invasion of state’s rights, but the Supreme Court ruled last January in Reno v. Condon that the law was constitutional. Colorado Department of Revenue spokesperson Dorothy Dalquist said the department had previously complied with the law as it was passed in 1994, but waited for the Supreme Court to rule in Reno before adopting the consent amendment. That provision will take effect on June 1. Driver’s license records will still be available to a few select groups, including insurance companies, which will use the records to check up on drivers; licensed private investigators; and government agencies. Information regarding auto accidents, moving violations and driving status will still be available to the general public. Associated Press/ The Freedom Forum Online

South Carolina: Senator wants tighter control of children’s academic records
COLUMBIA — Keeping students’ personal records from being shared with other agencies or groups without parental permission also would keep them out of the clutches of agencies like the federal Education Department, state Sen. Mike Fair says. Fair, R-Greenville, thinks the department steers some students into careers. He also suspects that groups like Planned Parenthood want the records to target some children. All deny any such motives. Fair’s bill was scheduled to be discussed today in the Senate Corrections Committee. It is in that committee because it also covers Juvenile Justice Department facilities, he said. Fair says his proposal would not override the state’s open-records laws, would not interfere with transferring records when students change schools, and would not interfere with law enforcement agencies that need information for investigations. “As it is written now, I see no problems with it,” said lawyer Jay Bender, who often handles cases for the news media. Much of what the bill appears to be covering is already covered by federal law, Bender said. But, he said, “It’s hard to say now what the ultimate effect would be.”

The U.S. Department of Education works with the Labor Department to identify job needs and encourage children to take certain academic or career paths too early in life, Fair said. “Students’ futures may be being compromised by people who have no business being involved in the decision-making,” he said. Individual student information has never been shared with the federal government, said state Education Department spokeswoman Mary Anne Byrd. The information provided is general and is used to design course plans, said Scott Hess, an educational program specialist at the federal Department of Education. While there are programs to help students identify career paths and prepare them for those, it is easy to switch paths, Hess said. The executive director of Planned Parenthood of South Carolina said that organization has no access to and does not seek access to minors’ records. “Planned Parenthood would never seek to identify children for any reasons,” Jane Emerson said. “We’re here if teen-agers need us, but we don’t go looking for them.” Associated Press