By Eric Mann
When John Burtis Caylor, a self-described investigative reporter, turned himself in to Daphne police March 30 for publishing the expunged court records of a Mobile man on his website, he likely became the first person in Alabama charged with violating a 2014 state law that criminalized the publication of expunged court records.
Mobile attorney Thomas Scott Smith III filed a complaint against Caylor, claiming Caylor illegally published copies of Smith’s sealed and expunged court records on his website and personal Facebook page. Caylor now faces a fine of up to $500 and a maximum of 12 months in jail if found guilty in Daphne City Court on May 3.
In his April 1 complaint, Smith alleges Caylor, the publisher of Insider-Magazine.com, intentionally and maliciously made materials related to Smith’s sealed and expunged court records public, in violation of the 2014 state law. Prior to the law being passed, expunged legal records were perfectly legal to publish in Alabama. Since the new law was passed, many have sought to have past legal difficulties wiped from the public record, but the law as written also means media outlets are breaking the law if they mention such details. For instance, it would be illegal for a newspaper to publish an expunged drug arrest record of someone who later was charged again for a similar crime.
Smith, who works in the U.S. District Court Southern District of Alabama, informed a Daphne Police investigator he was arrested in 2000 for unlawful possession of a controlled substance in Houston County; the charges were dismissed in 2004 and the records expunged in 2015.
Smith told investigators he discovered an article on Caylor’s website March 16 that included a link to his expunged court records as well as other personal information. The article revealed Houston County Sheriff’s Department officers seized $3,274 in cash and a 1996 Ford Mustang from Smith, which they believed were being used in the transportation or sale of methamphetamine. The case was dismissed in 2004 after Smith entered a pretrial diversion program, according to court records.
According to the complaint, Caylor was personally delivered a written cease and desist letter March 24 and also received one by certified mail March 26, ordering him to remove the documents from both his personal Facebook page and website.
At press deadline this week, the records were still available on Caylor’s website.
Smith’s complaint seeks a declaratory judgment requiring the permanent removal of the court records from the website and Facebook page. It also asks that Caylor be permanently restrained from republishing those documents and to surrender all copies of the materials in his possession.
The complaint also asks that Caylor be required to disclose the names of persons to whom he has given copies of those records. So far Caylor has refused to remove the records from his website.
“I did receive a certified letter demanding I remove the records from my website, but I don’t plan to do so because I think this should be public,” Caylor said. Caylor has said he believes Smith’s records are a matter of public interest because he currently clerks for Senior Federal District Court Judge Ginny Granade and has also worked for Federal District Court Judge Kristi DuBose.
Smith declined a request to comment for this story. His attorney, Thomas S. Smith, did not provide comment by press deadline, but said in an email he was concerned making a statement would create a further invasion of privacy. Ironically, it was Smith’s decision to file charges against Caylor that has brought media attention.
Daphne Police Cpl. Jason Vannoy said Caylor turned himself in for arrest March 30; his bail was set at $500.
“Mr. Caylor released some court documents about Mr. Smith that had been expunged, and the victim made a complaint to us,” Vannoy said. “Publishing someone’s expunged record is a Class B misdemeanor, so the court issued a warrant for Mr. Caylor’s arrest.”
According to arrest and offense reports provided by the Daphne Police Department, Smith reported the publication of his expunged record to the department on March 21.
After being released on bond, Caylor said he understands why states should protect those whose court records are sealed. Caylor claimed he did not know the state had an expunged records law.
“When I published the records on my site I was unaware that publishing those records was a crime in Alabama,” Caylor said. “In this case, I was dumbfounded when I was first contacted by Daphne police. I do believe states have the right to shield people who had juvenile convictions and that sort of thing. But you shouldn’t be able to use the law to hide things that should be exposed.”
According to the arrest report from the Daphne Police Department, Caylor told investigators the expungement publication law did not apply to him because of his position as “a journalist.”
The report says Caylor was booked into the Daphne City Jail without incident.
“In my 16 years with the department I’ve never had a case like this,” Vannoy said.
The 2014 law banning the publishing of expunged records began as a bill sponsored by former Sen. Roger Bedford (D-Russellville). The law allows persons charged with certain misdemeanor criminal offenses, traffic violations or municipal ordinance violations to have their record expunged. The law makes Alabama one of the few states that administers criminal penalties for such publication. In addition, the law also requires government employees queried about expunged records to declare that no record exists, even though expunged records are still held by the state and are simply not available to the public.
If an expungement is granted by a judge, an individual’s court records are essentially wiped from the public view in court records and police records. Violent felony offenses such as murder, rape, assault, burglary, robbery, kidnapping and extortion are not eligible for expungement.
According to the Alabama Law Enforcement Agency, non-felony charges may be expunged if the charge was dismissed with prejudice, no billed by a grand jury and if the charge was dismissed without prejudice more than two years prior, has not been refiled and the defendant has not been convicted of any other felony or misdemeanor crime. The record could be expunged if the defendant was found not guilty of the charge.
Nonviolent felonies may also be dismissed if the charge was dismissed with prejudice, no billed by a grand jury or the charge was dismissed after the successful completion of a drug court program, mental health court program, diversion program or veteran’s court.
Alabama code 15-27-16 bans disclosure of information from an expunged file without a court order. Any individual who knows an expungement order was granted and who intentionally and maliciously divulges those records has committed a Class B misdemeanor.
Some nationwide press freedom advocates have opposed the criminalization of publishing expunged records in newspapers and noted such laws could easily constitute prior restraint by the government in determining what can and cannot be published, something the U.S. Supreme Court has repeatedly held as being unconstitutional. Locally, Alabama Press Association Executive Director Felicia Mason said the APA has been concerned newspapers could be held liable for old, but factually accurate, crime stories.
“The Alabama Press Association has been concerned with expungement bills that would impair a newspaper’s ability to prove that the publication of an arrest article was accurate at the time published and concerned that expungement would subject newspapers to liability if the newspaper did not remove the correct information from old archives,” Mason said. “It is our understanding those concerns have been addressed.”