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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.
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