Posts Tagged ‘public disclosure’


FOI Daily Dose: Louisiana’s public records victory points to larger abuses of the law

A panel of the 1st Circuit Court of Appeal in Baton Rouge upheld a judge’s ruling that Louisiana State University is not privy to the governor’s office public records exemption, according to The Associated Press.

LSU was using the governor’s “deliberative process” exemption to hide the names of three dozen candidates in its closed-door search for a new president. They hired former University of California-Long Beach President F. King Alexander, who started in June.

The Advocate and The Times-Picayune filed lawsuits seeking names of the other candidates. But LSU board members said keeping the names quiet allowed sitting chancellors and presidents to avoid jeopardizing their current positions.

After district judge Janice Clark ruled in April that the records are public and must be released, LSU requested the 1st Circuit Court review the decision, according to the AP. The court panel on July 19 supported Clark’s ruling.

“This is very good news, and we are thrilled,” Lori Mince, an attorney for The Advocate, told The AP.

But Mike Hasten, capital bureau chief for Gannett Louisiana newspapers, said this victory for open government advocates is only one in a long list of exemption abuses. He published an editorial in The News Star on July 20 explaining the larger problem about how LSU and other agencies are wrongfully using an exemption for the governor’s office to keep sensitive material out of public view.

Governor  Bobby Jindal backed legislation four years ago that removed a blanket exemption for the governor’s office from the public records law and replaced it with a provision called “deliberative process” that exempts “any documents or other types of communication used by the governor to make a decision,” Hasten said.

Rep. Mike Danahay, D-Sulphur, told The Advocate lawmakers never intended the “deliberative process” claim to be used beyond the governor’s office.

The exemption specifically protects materials “relating to the deliberative process of the governor.” It said: “The provisions of this Section shall not apply to any agency, office, or department transferred or placed within the office of the governor.”

But even so, agencies using the exemption attribute their decision to a 2004 court ruling from the 1st Circuit Court of Appeal that allowed the Public Service Commission to shield some records from a legislative auditor. The Advocate said this decision had nothing to do with the public records law.

“They’re doing something outside of what it was intended to do, and that needs to be addressed,” Danahay told The Advocate.

Hasten said it’s up to the public to assert the public records law and challenge agencies when they misuse it.

“Because they have not been legally challenged on that and until a court says they can’t do it, they probably will keep doing it in violation of state law,” Hastens wrote for The News Star.

An attorney for LSU told the AP that LSU will return to Clark in state district court for her decision on the damages and attorney fees.

The AP said LSU will get its chance to appeal the decision, but it’s unclear whether they will ask the Louisiana Supreme Court to review the issue.

Kara Hackett is SPJ’s Pulliam/Kilgore Freedom of Information intern, a freelance writer and a free press enthusiast. Contact her at khackett@spj.org or on Twitter: @KaraHackett.

FOI Daily Dose: Attorney sues Carolinas HealthCare System for withholding confidential settlement

A Charlotte attorney is suing Carolinas HealthCare System for allegedly violating the state’s “sometimes-ambiguous” public records law by keeping a settlement confidential, according to The Charlotte Observer.

Attorney Gary Jackson is arguing that Carolinas HealthCare has no legal right to keep its settlement confidential, and he’s asking for a court order to force disclosure of the document so he can see if it’s fair.

Carolinas HealthCare won the confidential settlement in a court complaint in 2008 against the former Wachovia Bank. The hospital system said the bank broke its promise to put the hospital’s money in low-risk investments. One of their investments fell from about $15 million to $1.8 million, according to The Observer.

The hospital system’s board of directors in 2011 went into a closed session to approve the settlement, but they kept it confidential and refused to provide copies of the agreement.

Jackson and Carolinas HealthCare representatives came before a Superior Court Judge this week in a hearing to present their case.

The hospital is motioning to dismiss Jackson’s suit because the public records law does not explicitly say suits filed by a government agency are public records.

Mark Merritt, a lawyer representing the hospital system, said public disclosure could cost public bodies more money. He argued that the settlement falls through one of the public records act’s many loopholes because the law only requires public release of “any suit, administrative proceeding or arbitration instituted against any agency of North Carolina government.”

“I describe (the public records act) as a Swiss cheese,” Merritt said at the hearing. “It’s got a lot of holes in it.”

Jackson agreed the law does have holes, but said he doesn’t believe confidential settlements in lawsuits filed by public agencies should be allowed to slip through and evade the public eye.

“It’s a public body and there needs to be that transparency,” he said.

Jackson said even though Carolinas Healthcare is the largest employer in Mecklenburg County, it is “not known for transparency.”

Carolinas HealthCare system is a public, tax-exempt hospital, but Mecklenburg County officials have criticized it for acting more like a private organization than a public one, The Observer reported.

The Observer lists a series of speculative open records and open meetings violations committed by the hospital, including failing to share data about a county-owned psychiatric hospital, not inviting the public to quarterly board meetings and not providing The Observer with its administrative expenses.

Kara Hackett is SPJ’s Pulliam/Kilgore Freedom of Information intern, a freelance writer and a free press enthusiast. Contact her at khackett@spj.org or on Twitter: @KaraHackett.

Seattle Times watchdog waits 11 months for police’s purposefully withheld memo

Mike Carter

Seattle Times reporter Mike Carter (courtesy of Mike Carter)

Mike Carter is proud to call himself a watchdog at The Seattle Times.

After all, they’re an endangered breed in U.S. newsrooms, where tight budgets mean tighter leashes on reporters likely to rack up hefty legal fees in their investigations and exposures.

But in his latest bout to obtain public information from the Seattle Police Department, Carter earned $20,000 for the Times without ever setting foot in court.

After a quest for a police memorandum lingered on for 11 months, Carter learned the department purposefully withheld it from the Times, violating Washington’s Public Records Act, so the police paid the Times a settlement to avoid a lawsuit.

Even so, Carter says when it comes to purging public information from government agencies and law enforcement, it’s never about the money.

“It’s a principle sort of thing,” Carter said.

On May Day 2012, a day of violent workers’ rights demonstrations, Carter and fellow reporter Steve Miletich were on the story, and by 11 a.m. Carter could tell the police weren’t prepared.

Earlier that morning, Assistant Chief Mike Sanford intercepted control of police operations and confused officers when he limited how much pepper spray they could use. He also told them not to make any arrests in the uproarious crowd.

As a noontime march grew increasingly violent, protesters tore through traffic, smashing storefronts and car windows with sticks.

When the police arrived, Sanford further complicated matters by charging the crowd in his business attire— white button up, black pants and dress shoes—without any protective gear.

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Seattle Police carry off a participant in a May Day rally near Pike Place Market on May 1, 2012. (photo by John Lok)

He was assaulted, and other officers had to use force to rescue him, upsetting the community that the police’s own officer diverted their attention from protesters pillaging the streets.

Having reported on the police department since 2000, Carter knew Seattle Police Precinct Capt. Joe Kessler would be furious. At the time of the protests, Seattle police were already under the watchful eye of the Justice Department for their “unnecessary and excessive” use of force in a series of 2009-2010 incidents. Mishandling May Day only made matters worse.

Sources told Carter that Kessler sent a scathing internal memorandum to two police officers criticizing the department’s rash actions.

As more sources mentioned the “Kessler memo,” Carter began to see it as the missing puzzle piece the public needed to understand how their law enforcement had failed them.

Since it was subject to public disclosure, he was determined to wrestle it free from the control of police who held it out of view.

After SPD Chief John Diaz mentioned the memo, Carter and Miletich published an article on July 23, 2012 telling the public everything he knew about it. Carter purposefully filed a public disclosure request the same day.

“We wanted to amp the pressure up and shake the memo loose,” Carter said.

Sources told him the memo was only addressed to deputy chiefs Nick Metz and Clark Kimerer, so when Carter filed for disclosure, he cast a net “clearly intended to capture the Kessler memo,” asking for all emails, attachments, documents and memoranda involving May Day planning and response from all SPD captains and lieutenants involved.

He thought it would be easy to get because there’s no exemption in the Public Records Act for embarrassment.

“That’s what the Kessler memo was—embarrassment,” Carter said. “They had a captain being specifically critical of his superior over what could be called a debacle in their department.”

According to protocol, the department sent him a letter July 30 acknowledging they’d received his request, but they twice delayed their deadline to disclose the information until Sept. 17.

That’s when the documents started pouring in.

For the next eight months, Carter and Miletich combed through pages upon pages of tangled email strings and repetitive police reports. But the Kessler memo was still missing.

Carter suspected the police were waiting to reveal the memo until they filed their own (long overdue) after action report to counterbalance bad press the memo might arouse.

But when the SPD finally released their report on April 3, 2013, the Kessler memo never came.

Instead, Carter got an email from the department, saying they had fulfilled his request, and they were closing it.

At first he thought it was a mistake.

“I thought they forgot because I could not believe they were not going to actually give it to me,” Carter said.

He filed an email appeal with Diaz that morning, and when he confronted Diaz at a city council meeting that afternoon, the officer admitted the department intentionally withheld the memo. He sent Carter a copy later that day.

“But at that point, the damage had been done,” Carter said. “They were in clear violation of the law.”

That’s when decisions about the newspaper’s next steps fell to Seattle Times Executive Editor David Boardman, who met with  First Amendment attorney Eric Stahl and Times investigations editor James Neff.

“We came to the very quick conclusion that we couldn’t let the SPD get away with it,” Boardman said. “It was so blatant that we really had to call them on it.”

The Times sent a letter of intent to the police department on May 9 telling them they had a choice: either they could pay a $20,000 settlement or the Times would take them to court.

Boardman said the SPD was “quickly responsive and surprisingly open.” They worked with the Times’ attorney to pay the fee.

“We were not interested in asking for that amount of money to enrich us in any way or make tax payers angry with us,” Boardman said. “But we did want a big enough number to pay (potential) legal bills and send a clear message to the department that said, ‘You can’t get away with this. Don’t do it again.’”

Boardman gives credit to the Times’ owners for never shying away from costly legal disputes.

He said stories like Carter’s and Miletich’s are every news organization’s best defense against government agencies and public employees unions who are always looking to limit public access to records and free information.

“We’re able to pull out important investigative stories and successfully fight off those changes,” Boardman said. “We tell them, ‘You can’t do that because then we can’t tell these stories.’”

Kara Hackett is SPJ’s Pulliam/Kilgore Freedom of Information intern, a freelance writer and a free press enthusiast. Contact her at khackett@spj.org or on Twitter: @KaraHackett.

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