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Freedom of Information News

resources:

TPA Government Affairs Committee
Elizabeth Blackstone, Chair
Michael Williams, Co-chair
Greg Sherrill, Executive Director

Tennessee Coalition for Open Government

First Amendment Center

Reporters' Committee for Freedom of the Press

Sunshine Week

TPA will join as an amicus to push for access
(3/26/09) TPA is joining an amicus “friend-of-the-court” brief supporting The Tennessean’s request to the Tennessee Supreme Court to appeal a case involving whether records filed in discovery are public or can automatically be sealed and then opened at some time in the future.
The case deals with a nursing home fire in Nashville in 2003 that resulted in 16 deaths.

The Reporter’s Committee for Freedom of the Press (RCFP) filed the brief on March 23. In addition to the RCFP, TPA, The Tennessee Association of Broadcasters, The Tennessee Coalition for Open Government and The Associated Press are supporting the amicus brief.

Frank Gibson's February column for The Tennessee Press contains more detail and reasons litigation may help with access
Court records have been a staple of newsgathering as long as I can remember, particularly for investigative reporters looking into the background of business and political leaders and various institutions the press is expected to watch.

Unfortunately, some judges are making it increasingly difficult to get access to information filed as part of litigation, even when the issue involves public health and welfare. Notable examples include nursing home safety and how financial institutions handle your money.
Tennessee has fallen behind some other states, but a case that recently emerged from our state Court of Appeals offers an opportunity to regain some ground. It’s a rare opportunity because is would give the press, the public and the Court a second chance to preserve and improve access to vital information.

Court worked on problem
The state Supreme Court tried to improve the problem of closing “judicial records” a few years back by making it harder to seal court records. It proposed rules and criteria for judges to follow in balancing the public’s constitutional right to open courts with the too-often-claimed interest of private entities in secrecy. The practice had become so widespread that local governments tried to use it to keep lawsuit settlements secret.

The Court withdrew the proposal from the legislature after lobbyists for insurance companies and the corporate bar flexed their considerable influence in the General Assembly.
The problem: It’s almost automatic for a judge to close records filed in civil cases if one of the parties asks for it and the other side doesn’t object. There are reasons, often financial, for the other side not to object, and the press and general public do not have a seat at the table to question decisions that put entire case files under a protective seal.

The possibility of a second chance comes in a case involving a fatal fire that raced through a nursing home in late 2003. The Nashville facility had 117 residents. The fire resulted in 16 deaths and “countless others were injured,” resulting in 32 lawsuits, including some that alleged that action or inaction by the local fire department may have contributed.

Lawyers for the nursing home asked the trial judge to impose a “blanket protective order” that closed the entire file, including sworn statements by investigators and public regulators, things that should have been open since these facilities are regulated by the government.

Newspaper intervened
Months passed and many cases were settled through secret mediation before the local newspaper was forced to intervene and push for certain records to be opened. The City of Nashville joined The Tennessean in asking that records be unsealed, arguing that disclosure would show city employees had been cleared of any wrongdoing. Sure enough, the city was exonerated and the claims against it were dismissed.

The rules the Supreme Court proposed would have put the horse in front of the cart – the same way the state’s highest court had done years earlier when it held that criminal courtrooms (and later juvenile courtrooms) could not be closed without a hearing and a judge’s finding of good reasons to close. In both cases the public interest in open courts has to be weighed.

We had encouraged the state Commission on Rules of Practice and Procedure to recommend the high court adopt the rule in civil cases as well.

On appeal, the court rejected the newspaper’s request that it review the judge’s handling of records issues against the rules endorsed by the high court because “we are without authority to adopt the proposed rule or a procedure similar to it.”

The question now is whether the Supreme Court will accept an appeal and exercise its powers to adopt rules already being used in criminal and juvenile courts. Open government advocates need to support the request.

Most recently, another Nashville trial judge issued a blanket seal on all filings (including the court order closing all future filings) in a paternity lawsuit against singing legend Eddy Arnold. The judge defended his actions by saying the seal would protect the good name of the late singer, despite the absence of such a right for deceased persons.

What’s to protect? The lawsuit is public and the press has already quoted family members as saying Arnold repudiated the paternity claim before he died. The 48-year-old California man’s claim is already suspect because he waited until after Arnold’s death to sue.

The Supreme Court’s once-proposed rule would not likely have come into play in the Arnold matter because the rule dealt with true public interest litigation involving issues of health, safety and government transparency. However, the Arnold estate’s lawyer used the Court of Appeals rejection in the nursing home lawsuit as evidence the appeals courts here are reluctant to deny record-sealing petitions.

Assuming lawsuits are filed in state courts, I can already see TVA using the absence of appropriate criteria to ask judges to close records in litigation over the 1-billion-gallon coal sludge spill in Roane County.

It took the Nashville judge almost two years to accept “protocols” on closing records in the nursing home case – long after critical questions were raised and allowed to languish and after decisions were made.

That situation is particularly troublesome in view of recent news reports about how poorly Tennessee nursing homes fare in national quality standards and a two-year spate of state orders blocking new admissions to nursing homes across the state.

Criteria or procedures needed
Criteria need to be set and decisions on closing information should be made before records are sealed. Or, procedures need to be adopted making it easier for the public and press to be heard when the “public interest” is at stake.

I remember a situation several years ago when I had to go out to California to get a bootleg copy of a deposition that showed a Nashville bank had lent millions in a risky loan to a Las Vegas strip casino operator. The casino operator’s deposition was filed in a federal court in Chicago, but lawyers for the Teamsters Central States Pension Fund had gotten the federal judge to seal it. The copy I tracked down was made before the judge sealed it.

After we published contents of the “judicial record,” the locally-owned bank rewrote its lending policies and the loan officer was retired early.
While the Court of Appeals decision was not helpful to the cause of openness, the opinion was chock full of interesting tidbits to support our position:

1. It said there should be “compelling reasons to seal judicial records.”

2. The court said, “We also recognize the newspaper’s legitimate interest in timely access to judicial records.”

3. “Without minimizing the importance of public access to judicial records, we must not lose sight of the ‘primary goal’ of the judicial system, that is, ‘providing citizens an effective truth-seeking procedure for resolving their disputes without impairing their other rights.’”

4. It quoted one legal scholar, who cited secret settlements various Catholic churches had reached in child molestation cases and “how Firestone and Ford were able to hide the Ford Explorer’s rollover problems by settling scores of lawsuits with strict confidentiality clauses.” He noted that parties in such cases are “able to use secrecy as a bargaining chip during settlement negotiations,” permitting “bad actors” to “buy secrecy from their opponents in the form of a large settlement offer.”

FRANK GIBSON is TPA FOI coordinator and executive director of Tennessee Coalition for Open Government.

Public records request forms available
The Tennessee Comptroller's Office announced the availability of forms to assist citizens and records custodians with the public records request process on August 12. Three forms were developed by the Comptroller’s Office of Open Records Counsel as required by Public Chapter 1179, Acts of 2008.

The Inspection/Duplication of Records Request Form is for use by citizens requesting copies of public records. The Tennessee Public Records Act prohibits governmental entities from requiring a Tennessee citizen to submit a written request when exercising the right of inspection. However, the Act does require a request to be sufficiently detailed to enable the records custodian to identify the specific records to be located or copied. The Inspection/Duplication of Records Request Form will assist citizens in making sufficiently detailed requests. The forms, along with instructions on how and when they are to be used, can be found on the Comptroller of the Treasury’s website at: www.comptroller.state.tn.us/openrecords/forms.htm.

TPA is a primary media sponsor of the Governor's Books from Birth Foundation Imagination Library project.