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Amicus Brief Filed in Important Federal Case that Could Affect Access to State Records

March 9, 2010

Capitolbeat continues to represent statehouse reporters around the country who seek access to important documents from their government. As part of that mission, we often join amicus briefs filed on cases of interest.

We recently agreed to sign onto a brief in a federal court case because the issue is important enough, especially in terms of its impact on state government reporting, to merit our participation. Our participation also met all of the other criteria for amicus efforts that were explained in an earlier post.

The case is Prison Legal News v. Executive Office for United States Attorneys. It currently sits before the United States Court of Appeals for the Tenth Circuit. Prison Legal News (“PLN”) filed a FOIA request with the Executive Office of United States Attorney (“EOUSA”) seeking access to videos and pictures that had been introduced in a criminal case involving two federal prison inmates who had killed their cell mate.

The facts of the case aren’t pretty: after the killing, they mutilated the deceased’s body and drank his blood. The video and pictures show all of this, as well as the killers’ removal from the cell by prison authorities, their initial physical exams and their restrained placement in separate cells. The videos and photos were displayed in open court during the trial. After trial they were returned to the EOUSA.

The EOUSA denied PLN’s FOIA request. The publication appealed this decision to the United States District Court for the District of Colorado, which upheld the denial of access (a few pictures were released) on the grounds that release constituted an unwarranted invasion of the deceased’s family’s privacy. PLN appealed that decision to the United States Court of Appeals for the Tenth Circuit, which is where we stand now.

Now, before I describe the brief itself, I’ll answer two questions that are likely at the tip of your tongue:

1. Wasn’t one of our criteria “State Supreme Court level”?

2. Why would a federal court case affect statehouse reporters so deeply?

As to the first, we’ve long equated a United States Court of Appeals to the State Supreme Court. Both are one step removed from the highest court in the land and both have the power to profoundly affect reporters throughout the country. In fact, the United States Court of Appeals for the Tenth Circuit’s ruling will be binding on Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah and may influence other courts, including state courts dealing with the same issue under state law,

That leads us to the second question. And the simple answer is that we’re likely to see this issue repeated again and again, with only a different set of photos or videos standing in. Chances are, some of you have tried to access crime scene or autopsy photos before. During the Board’s conference call Monday, the large North Carolina contingent oh-so-fondly remembered the fight for access to Dale Earnhardt’s autopsy records from a few years back. Of course, Florida reporters were involved in that battle.

Just yesterday, former Capitolbeat President Aaron Gould Sheinin wrote about Hustler magazine’s attempt to access crime scene photos from a similarly disturbing event — the murder and decapitation of a female hiker in Georgia. The request has engendered a severe reaction from lawmakers in Georgia who have vowed to prevent access to these and similar photos — the sort of thing that will catch on in other states. Say what you will about the requester or the likelihood of publishing a story in your article, but I think we can all agree that access to these photos is often a necessary component of overseeing a state or local government’s handling of a high-profile criminal matter.

Access to these types of photos and videos has always been spotty. Many states have laws preventing widespread access or have recently passed exemptions to state records acts in the wake of requests such as those described above. But the bar to access was raised when the United States Supreme Court in 2004 upheld the denial of a FOIA request seeking the release of death scene photos of former White House staffer Vince Foster. The Court’s decision that releasing the photos would constitute an unwarranted invasion of privacy to Foster’s family members has been cited repeatedly by federal government agencies and followed by states as well.

The hallmark of any good amicus brief is that it provides color and perspective for the court without simply regurgitating the arguments made by the party it supports. Capitolbeat is well-represented in this regard here. Recognizing that the Supreme Court has all but foreclosed direct access to these records under FOIA, we’re attempting an end-around. The main thrust of this brief is that in a case such as this one, where the records were introduced in open court and relied on by that court in reaching a final decision, those records are actually court documents. To say that they are Executive Branch records simply because the court returned them to an Executive Branch agency would have devastating consequences (one could imagine an Executive Branch agency outsourcing records to private companies to avoid FOIA disclosure altogether).

If these are court records, they must be disclosed because of the significant First Amendment and common law precedent in favor of open trials and access to trial materials. That access can only be curtailed in those very limited instances where the court can show that there has been no history of access to the materials and that the interests being protected by outweigh the public’s interest in disclosure.

To the extent any privacy interests existed here, they should have been invoked in court — remember, these documents were never sealed by the court. On the other hand, there is overwhelming evidence that access to photos and videos shown in open court markedly helps reporting on high-profile cases of public concern. We have an argument ready should the Court of Appeals reject our contention that these are more properly classified as court records: even if these are subject to the Freedom of Information Act, they have already been made disclosed to the public by virtue of their display in open court. In addition, the lower court placed the burden on PLN to justify access when it should properly have been placed on the government to justify the exemption.

The full brief is found here in case you want to read it. I hope that you realize by now that this is an issue that won’t go away but Capitolbeat’s efforts might just wrangle some access, at least in those cases where the matter actually went to trial.

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