Chiropractors, attorneys win right to accident reports

KENTUCKY–Two state laws restricting access to otherwise-public accident reports violated the First Amendment, a federal appellate court in Cincinnati held in mid-February. The appellate panel upheld a trial court decision striking down two statutes aimed at preventing attorneys and chiropractors from using public records to solicit new clients.

The case follows a series of decisions in courts across the nation determining whether requesters may use government records for commercial purposes such as solicitation of clients. Currently, federal circuits are split on the issue and the Supreme Court has agreed to review a similar case.

In a 2-1 decision, the appellate panel ruled that the laws unconstitutionally infringed on commercial speech rights guaranteed by the First Amendment because they did not directly advance the state’s interest in protecting citizen’s privacy. The court noted that although the government had a substantial interest in protecting accident’s victims’ privacy, that interest was already undermined by statutory exceptions allowing the media and insurers to have access to the reports.

The suit was brought by a number of attorneys and chiropractors, as well as the publisher of a proposed commercial newsletter.

Before 1997, chiropractors and attorneys who submitted open records requests received reports containing the name, address and driver’s license number of those involved in accidents along with a diagram and description of the accident.

In response to public anger over increased mail solicitation, the state legislature passed laws in 1997 severely limiting access to accident reports and charging commercial users of records higher fees for access than those charged to noncommercial users.

In rejecting the state’s arguments that criminals would use information to prey on accident victims, the court noted that the information had been freely available for years without any demonstrable harm. The state failed to prove that the harm it asserted was real, the court held, adding that conjecture and speculation were insufficient grounds upon which to base restrictions on commercial speech.

The court remanded the case to the trial court and ordered it to determine whether the state agency was correctly interpreting the fees statute.

Judge Eugene Siler dissented, arguing that the statutes advance the state’s substantial interest in a reasonably direct way and were therefore constitutional. (Amelkin v. McClure)