Lagniappe will have to wait at least another month before the city of Mobile provides more thorough documentation related to a public records request initially made in November 2012, Circuit Court Judge Rick Stout ruled today.
Stout held the case over until Aug. 30 to allow the city to reproduce any and all records related to the newspaper’s request for public records related to trips taken by the Mobile Police Explorers from 2009- 2012. The request was expanded in January to include a 2008 trip to Denver.
The MPD refused to provide lists of those who went on the trips, leading Lagniappe to sue for them. While the city has provided some records for the federally funded trips, they are incomplete or difficult to decipher without help from the department — help which has not been forthcoming. The department has still not released a list of any of the 42 attendees who flew to Denver in 2008.
The newspaper filed the requests after receiving information that federal money was inappropriately used to pay for municipal employees or their family members to attend the trips, rather than the youth targeted by the Explorers program. Lagniappe sought to subpoena records from Springdale Travel for the 2008 Denver trip, as well as records from a Pigeon Forge, Tenn. motel in regards to a 2009 ski trip there, but Stout temporarily quashed the subpoenas in a July 19 hearing after city of Mobile attorney’s filed an objection.
On Tuesday, Stout maintained the stay on subpoenas, saying he couldn’t find any case law dictating whether such subpoenas are permitted under the state’s Open Records Act.
“I have looked high and low to find some case talking about the use of the [Open Records Act], which is clearly a vehicle for the purpose of getting public records from public officials, and using it as a vehicle to get records from non-parties,” he said. “I can find no case of any kind that suggested you can use this as a vehicle, which has limited scope and purpose, to produce records from non-parties.”
The judge was attempting to clarify his order from a previous hearing in which he asked the newspaper to perform more evidentiary discovery in the case. With the city unwilling or unable to produce documents it was legally obligated to maintain, Lagniappe attorney Ginger Poynter issued subpoenas to both Springdale Travel and the hotel in Pigeon Forge, Tenn., hoping to discover the names of people who attended trips in 2008 and 2009.
Meanwhile, city attorney Larry Wettermark, making his first court appearance in the case, attacked both the newspaper’s legal strategy and reporting on the requests. Wettermark said Police Chief Micheal Williams’ affidavit claiming the department had turned over all records was truthful because it responded to the two trips at the center of the court case, rather than the comprehensive list Lagniappe has sought outside of court and has independently and partially compiled with the assistance of confidential sources within the police department.
“There is a contention being made that we haven’t produced everything that is relevant to the complaint and that [Lagniappe] has come into possession of other documents that have been produced so the subpoenas are warranted,” Wettermark argued. “This sets the precedent that if someone files an open records complaint, it gives them free license to use it as some sort of investigative tool. There could be an abuse of process where, because they’ve now come into possession of new documents, that may be used as a reason to issue subpoenas like this.”
While passing the buck of departmental record-keeping to previous police chiefs Sam Cochran and Phillip Garrett, Wettermark suggested whoever is providing records to Lagniappe outside of the city’s official channels is “trying to cast [Williams] in a false light.” He also contended that some details of the records previously reported by Lagniappe were erroneous, including some of the names of municipal employees whose trips may have been paid for with the federal grants.
“We frankly have a mess on our hands,” Wettermark said. “My problem is we can’t tell who produced these documents to Lagniappe so I don’t know when those documents got there, who sent them, how long they’ve been there and can’t tell whether they’ve been blended with other documents or manipulated. This program has existed for some time although Chief Williams is taking the brunt of the criticism. The problem with what’s going on is the power of the press can be very beneficial but it can also hurt people. In this case what’s happened is there have already been some terrible mischaracterizations.”
Several offers from the newspaper to the police department to explain the relationships of individuals named in the records over the past several months have been ignored. Following Tuesday’s hearing, Lagniappe co-publisher Rob Holbert sent a statement to Wettermark defending the reporting and offering the city an opportunity to help clear up any issues of possible errors.
“I can assure you our intentions have been and always are to be accurate, unfortunately MPD’s steadfast refusal to help in this matter since we first asked about it has complicated things beyond what is normal in the news gathering process,” Holbert wrote. “That’s the danger when public officials refuse to speak with the media. Obviously we would never be in court to begin with if MPD had simply supplied these public records as required by law. The chief never offered any legal reason for doing so, pushing us to the point where we are discussing subpoenas and which records where in the building before his affidavit or not…. We can only deal with what is sent to us, when it is sent to us and explain to our readers that the city continues to work through legal channels to keep us from seeing who went on certain trips. Courtroom issues aside, that remains the basic issue — MPD sent people on trips and has been unwilling or unable to provide complete records for them.”
Wettermark said in the past two days, the department both requested and received related documents from the finance department’s archives and in the next 30 days, would “resurvey and reproduce every document relevant to the original request in 2012” and ask for a summary judgment to dismiss this case.