Media attorney argues new breed of judges protecting privacy

Monday, February 23, 1998

DENVER (AP) — A new, younger breed of judges is ruling on the side of the public’s right to privacy rather than the public’s right to know and that will continue to be a problem for news groups, a media attorney said Friday.

“Privacy is going to be the issue going into the next century,” Tom Kelley, of the Denver law firm Faegre & Benson, told a Colorado Press Association seminar on freedom of information challenges.

When defamation cases go before these privacy-minded judges, they must decide whether there is a legitimate public interest in disclosing the information, he said.

And although 75 percent of the defamation cases filed in Colorado are thrown out before they get to trial, “invasion of privacy concerns is what we’re seeing more and more,” Kelley said.

Kelley has tackled numerous First Amendment rights cases in Colorado. He has represented newspapers, magazines, broadcasters, cable networks and other media organizations in open-meetings and open-records cases.

He battled with U.S. district court Judge Richard Matsch during the Oklahoma City bombing trials of Timothy McVeigh and Terry Nichols over access to court records and jurors. And he defended reporters who were asked to testify in the trials.

Kelley also worked to get media access to records in the JonBenet Ramsey murder investigation in Boulder.

The Ramsey case raises questions about how to handle information about a crime before anyone is arrested, he said.

“Be careful of writing things that implicate someone before they are charged,” he said.

“The public needs to know who the prime suspect is, but when you focus on one person and the possibility that he is guilty, talk to me first.”

Media have access to autopsy reports, but “everything else is police discretion,” he said. “The police decide what to disclose during an active investigation.”

Kelley said the Colorado Freedom of Information Council tried to get a bill passed this legislative session to require more disclosure during the pretrial stage of an investigation.

But law enforcement “mounted heavy resistance, screaming fiscal impact,” he said. “The problem is the natural inclination of law enforcement to withhold information.”

The council finally decided to withdraw the plan, but vowed to be back next year, he said.

“It’s difficult because we’re in a new era of hostility toward the press,” Kelley said.