Sheriff ordered to give newspaper incident reports

From the Summer 2000 issue of The News Media & The Law, page 29.

The state Supreme Court on May 30 found the Sumter County sheriff in violation of the state open records law for failing to provide access to daily incident reports and the arrest log. The court unanimously rejected the sheriff’s contention that he did not have to respond to a newspaper reporter’s on-going oral requests for the same information that had been typically made available to other news outlets.

In ordering the sheriff to release the requested information, a lower court had ruled that the sheriff had intentionally withheld the requested information in violation of the open records law because the newspaper had written critical stories about him and his family. The Supreme Court affirmed the ruling and upheld an award of attorneys fees to the newspaper.

*

For years, the Sumter County sheriff’s office had been sending copies of daily incident reports and its arrest log by fax machine to the local news media. But a series of negative articles in the Sumter Free Press about one of Sheriff Randy Howard’s sons in March 1998 prompted the sheriff’s office to stop faxing the records to the newspaper. The fax transmissions resumed a few months later after a positive article about Howard’s son appeared in the Free Press.

Another series of negative articles in the Free Press in early 1999, this time about possible discrepancies in the way the county handled prisoner telephone account records, prompted the sheriff’s office to cease distributing arrest records to the newspaper. Around the same time, the Free Press requested copies of records about county jail prisoner telephone accounts. The sheriff’s office indicated that it was willing to comply with the request but only after the newspaper paid $400 in searching and copying charges, which the newspaper thought were unjustified and excessive.

During the summer of 1999, Free Press editor Don Fletcher repeatedly asked Howard to resume distributing jail and arrest records to the newspaper. The newspaper filed suit under the Open Records Act in state Superior Court in Americus when Howard continued to ignore its request for access.

The sheriff admitted at trial in August 1999 that the underlying information being sought by the Free Press was public, but he explained that records themselves were merely press releases that he could distribute as he saw fit. The sheriff also claimed that the newspaper’s requests for the records were insufficient because they were made orally and because they were only for future records that had not yet been created.

The newspaper, however, reiterated that the law does not distinguish between oral requests and written ones. The newspaper also argued that its requests were sufficient, explaining that they were ongoing requests for records to be released as they were created by the sheriff’s office. It was not a request for the sheriff’s office to create records that it otherwise would not have generated. Finally, the newspaper argued that the sheriff’s office could not discriminate between news organizations that it liked and those that it did not.

The court agreed, ordering the sheriff to treat all of the news organizations equally. In response Howard stopped faxing copies of the records to all Sumter County media outlets on a daily basis. Under a new policy he issued six days after the judge’s ruling, Howard said he would make records available only for inspection by people who actually came to the sheriff’s office.

The newspaper returned to court in early September seeking an order to compel the sheriff to not only make the arrest records and incidents reports available to the press but also to resume distributing them to local news organizations by fax. The court found the sheriff’s action was indeed a violation of the public records law and ordered Howard to comply with future requests. It ordered him to pay the Free Press $2,000 in attorney fees and costs.

Howard appealed to the Supreme Court. The state’s high court upheld the trial court, stating that “compliance with the Act is not discretionary, but mandatory.” Howard’s argument — that the Free Press‘ requests were insufficient to create liability under the Open Records Act because they were oral and ongoing — was “unavailing,” the court said.

“It is true, as Howard maintains, that the Act applies to existing records in that no public officer or agency is required to prepare reports, summaries, or compilations not in existence at the time of the open records request. But the evidence in this case was that the documents at issue were generated on an ongoing basis and that the newspaper’s requests for access to the documents were continuing,” the court held.

The Supreme Court also upheld the trial court’s award of attorney fees and costs to the Free Press.