Courtroom Weekly: Courts differ on Freedom of Information cases

January 31, 2013

by: the State Court Staff

Freedom of Information, oil and beaches

Courtroom Weekly The latest and greatest in court cases around the nation In this issue... Featured case News from Tennessee News from South Dakota News from California News from Texas

Featured case Indiana judge says general public has no right to cause of death records   Court: Indiana Circuit Courts On January 29th, Indiana circuit court judge Carl A. Heldt ruled that the general public has no right to access cause of death (COD) records. The finding is in response to a lawsuit filed by an Evansville resident, Rita Ward, and the Evansville Courier & Press after the two parties were unable to obtain cause of death records following requests in June and July of 2012. The representation for the newspaper and other plaintiff argued that death records were public records, while the Health Department argued that state law requires them to restrict access to information such as cause of death. From 2002 to 2012, the Evansville Courier & Press routinely published COD in their news coverage, however in mid-2012 the county ceased to provide this information. Last July, Public Access Counselor Joseph Hoage offered his opinion that the records should be accessible to the public. Complicating the issue are state laws that appear to be at odds and evolving technology, which means that many of these records are not stored solely by the county in paper format, but stored in a statewide electronic database. There are at least two seemingly conflicting laws on the books concerning public access to such records, which the plaintiffs focused on in their arguments and which the judge addressed in his ruling. Indiana Code 16-37-3-3 says, “The person in charge of interment shall file a certificate of death or of stillbirth with the local health officer of the jurisdiction in which the death or stillbirth occurred ...The local health officer shall retain a copy of the certificate of death." This code also suggests that the general public have access to these physical records. However Indiana Code 16-37-1-10 says, "access to records with the cause of death information is restricted to only those who can prove they have a direct interest in it, such as a spouse or immediate relative who may need it for legal purposes." In his ruling, Heldt said that when two laws were in conflict, he must follow the more specific statute, leading to his finding more in accordance with Indiana Core 16-37-1-10. The Evansville Courier & Press is considering filing an appeal.

News from Tennessee DCS must make public child fatality records   Court: Twentieth District Chancery Court, Tennessee Does the state have an obligation to make public records which concern child fatalities suffered while the child is under care of the Tennessee Department of Children's Services? On January 23, 2013, Twentieth District Chancery Court judge Carol L. McCoy said the state does have such an obligation. DCS must immediately give public access to case summaries for children who died or nearly died while under its care. This ruling comes after news organizations in the state filed suit to obtain the release of records after they began investigating child deaths in the DCS system. DCS argued that the release of the records would violate client confidentiality and, if DCS takes the time to redact sensitive information from the records before release, the cost would be prohibitive. Judge McCoy, however, was unswayed by these arguments. In her ruling, she states that the public policy interest in protecting client confidentiality wanes once the client, in this case the child, is dead. Issues of child protection while in state custody are then raised and trump any residual public policy concern. The judge was more sympathetic to the cost argument. She has asked DCS to provide "an estimate of how much it would cost to redact confidential information from requested files dating back to 2009." Judge McCoy stated, however, that these records fall under the Public Records Act so DCS may be forced to redact and release the documents no matter the cost. DCS's problems are not limited to state news organizations, however. Earlier in the month, two members of DCS's Child Fatality Review Team were fired. Debbie Miller's position was eliminated after restructuring and Alan Hall's removal from his position, which will be filled, has brokered no comment as yet from DCS. Further, the advocacy group Children's Rights has filed a federal lawsuit seeking the release of records concerning children who died in 2011 and 2012 and had contact with DCS. In 2012, a total of 73 children died while either in custody of Tennessee's DCS or after having had contact with the agency. According to The Tennessean, "They include children in state custody - in foster care or in detention centers - as well as children with open case files. They also include children who had been investigated by DCS but who - at the time of their deaths or injuries - had their case files closed."

News from South Dakota South Dakota Supreme Court upholds $10 billion oil refinery permit   Court: South Dakota Supreme Court On January 24, the South Dakota Supreme Court issued a unanimous opinion upholding the approval of an air quality permit that would enable the Hyperion Energy Center, a company based in Dallas, to begin construction on a $10 billion oil refinery. The permit was initially issued in August of 2009, and was upheld by a lower court in February 2012. A group of plaintiffs including the Sierra Club, Citizens Opposed to Oil Pollution, and Save Union County sued the South Dakota Board of Minerals and Environment, claiming that the board erred in approving the air quality permit because the study it conducted "did not include a full-scale environmental impact statement." However, according to Justice Steven Zinter's ruling, "the record indicates that other [environmental impact statement] concerns will be addressed in other regulatory proceedings that are necessary to construct and operate the proposed facility." In addition, plaintiffs argued that the permit was invalid because Hyperion did not begin construction by the original February 2011 deadline. Building was delayed due to the recession, which caused financing problems for the company. On this point, the Supreme Court ruled that the state was not in error when it extended Hyperion's construction deadline. Hyperion's victory in court is only one step on the road to constructing the oil refinery. Under the air permit's conditions, Hyperion is required to start construction by March 2013. However, last September, the company "quit making option payments to owners of more than 3,000 acres of farmland," which means that it no longer has control of the land where the refinery is supposed to be built. Hyperion's vice president has stated that the company will likely ask the board to extend the March deadline. If completed, Hyperion's refinery would process 400,000 barrels of Canadian tar sands crude oil every day, producing low-sulfur gasoline, diesel, liquid petroleum gas, and jet fuel.

News from California Despite claims of illness, Lindsay Lohan appears in LA Superior Court   Court: Superior Court of Los Angeles County, California Although Lindsey Lohan had previously submitted a doctor's note saying she was too ill to fly, the actress managed to make an appearance before Judge Stephanie Sautner in the Superior Court of Los Angeles County on January 30. Lohan's presence in the superior court was required to confirm that she replaced her usual lawyer, Shawn Holley, with attorney Mark Heller. The case against Lohan involves charges of lying to police, driving recklessly and obstructing an officer while on probation for a misdemeanor jewelery theft case. If it is proven that she was in violation of her probation, the 26-year-old could face up to 245 days in jail. Lohan has pleaded not guilty to the three charges of lying to police, driving recklessly and obstructing an officer. “ I am not going to give you a lecture. Live your life in a more mature way. Stop the nightclubbing and focus on your work. OK? - Judge Stephanie Sautner ” Upcoming dates in the case March 1, 2013: Pre-trial hearing (Lohan not required to attend) March 18, 2013: Trial (Lohan required to attend)

News from Texas Texas Supreme Court rules on Open Beaches Act   Court: Texas Supreme Court Texans battled for beach ownership last week as the Texas Supreme Court heard a case regarding the Open Beaches Act. The court overturned an appellate ruling that gave the city of Surfside the right to refuse repairs and extend utilities to beachfront homes that were determined to be in the public right-of-way due to erosion. Thirteen beachfront homeowners argued that the Texas General Land Office's attempts to force them to remove their houses from the public right-of-way amounted to property theft. The Land Office, in a similar situation on Galveston Island, argued that state money cannot legally be spent on private property and that the erosion moving houses to the public beach made that beachfront private property. Last year, the court determined that the 1959 Open Beaches Act, which was voted into the state Constitution in 2009 to allow public access to beaches, did not apply in the cases of an avulsive event. Such events could include a storm, which, by no fault of the homeowners, could cause erosion and move their house to the public beach. The court, on Friday, asked the lower court to reconsider its decision in light of last year's ruling.

See also

• Courtroom Weekly