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Denial of records over reporter's criticism upheld

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    NMU         SIXTH CIRCUIT         Freedom of Information         May 25, 2000    

Denial of records over reporter’s criticism upheld

  • A city attorney’s refusal to release public records to a journalist who had criticized him in print did not violate the First Amendment, an appellate court held.

A federal appeals court found that a city attorney’s refusal to provide public records to a freelance reporter after the reporter criticized him in print was not an adverse action against the reporter and did not violate his First Amendment rights. Even though the city attorney refused to provide otherwise public records in retaliation for what the reporter had written, the appeals court said, reporter Geoffrey Davidian’s ability to continue writing critical reports about the attorney was not chilled.

The U.S. Court of Appeals in Cincinnati (6th Cir.) issued its ruling against Davidian in early April but recommended that it not be formally published.

In 1996, Davidian, who had spent more than a year investigating a death in Cookeville, Tenn., began publishing The Putnam Pit, a newspaper reporting on local government. Davidian relied upon public records to report that public officials had engaged in unethical and illegal behavior.

After Davidian wrote that city attorney T. Michael O’Mara had allegedly charged the city $8,730 for prosecuting a speeding violation involving Davidian, O’Mara wrote Davidian telling him that he would no longer have access to the city’s public records unless he could show that he was a citizen of Tennessee. O’Mara accused Davidian of growing increasingly “demanding and belligerent.”

Davidian hired his son — who is a Tennessee citizen — to file requests for him, but later told the court that his son was also denied records because of his association with The Putnam Pit.

Although the Tennessee Open Records Act only applies to “any citizen of Tennessee,” the Cookeville city charter makes records available to any citizen of Cookeville, any representative of a Cookeville citizens’ organization or any representative of the press. Davidian wrote to the city manager, claiming rights of access as a representative of the press, but the city manager responded that Davidian’s publication was not a “newspaper of general circulation.”

Davidian sued for the records in Putnam County Chancery Court. It ruled that Davidian was not entitled to records under the state open records law because he is not a Tennessee citizen, but that Davidian’s son is allowed access. After that lawsuit city officials provided records on request.

However, Davidian sued in federal District Court sitting in Cookeville saying that in witholding the records because of what he had written, the city violated his First Amendment rights. In 1999 the court granted summary judgment to the city and Davidian appealed.

Davidian has also appealed another case against Cookeville, arising out of the city’s denial of access to its electronic computer files, but the appellate court has not yet decided that case.

(Davidian v. O’Mara)

© 2000 The Reporters Committee for Freedom of the Press

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