By Eric Mann
While still facing a possible $500 fine and up to a year in jail for publishing expunged legal records on his website, blogger John Caylor is now dealing with a civil lawsuit over the same matter.
Caylor appears to be the first person in Alabama arrested under a 2014 law allowing people who have arrest records for non-violent offenses expunge those records. But the law also criminalized publication of such records, a situation that creates potential First Amendment issues and could put news organizations in danger of arrest for publishing factual information.
Caylor will appear in Daphne City Court May 3 to determine his fate regarding the publication of Mobile-area attorney Thomas Scott Smith III’s expunged court file on his website, www.insider-magazine.com.
Smith had Caylor arrested March 30. In addition Smith has filed a civil suit in Baldwin County Circuit Court seeking a declaratory judgment that would require the permanent removal of the records from the website. The complaint also asks that Caylor be permanently restrained from republishing those documents and required to surrender all copies of the materials in his possession.
According to the law, sponsored as a bill by former State Sen. Roger Bedford (D-Russellville), persons charged with certain misdemeanor criminal offenses, traffic violations or municipal ordinance violations may apply to have their record expunged. Those charged with non-violent felonies can also seek an expungement if the charge was dismissed with prejudice, no-billed by a grand jury, the person was found not guilty of the charge or the charge was dismissed without prejudice more than two years ago and has not been refiled, or in the case of a pre-trial diversion program.
Bedford is now a practicing attorney in Russellville after serving as District 6 senator from 1994 to 2014. Last week, he recalled the debates over his bill in 2014.
“For several years I had people calling me who applied for jobs but were not being hired because they had charges on their record that had been dismissed,” Bedford said. “These were people who had made a mistake in high school or college, or people who were in the wrong place at the wrong time. At the time, there was no mechanism in Alabama to have those records expunged.”
The former senator used the example of four teenagers riding in a car in which the driver has a stash of marijuana under his seat that his three passengers are unaware of.
“All four passengers could be charged with possession, even if only one person in the car knew the drug was there,” Bedford said. “This bill protects the others in the car from having this arrest on their record.”
In Smith’s case, he was arrested in 2001 when he was 21 and charged with possession of methamphetamine, according to court records. His case was dismissed after he completed a pre-trial diversion program.
Until the law was passed, Alabama residents had no way to have such records removed from the public eye. Bedford said he studied similar laws in other states and proposed a bill with what he thought were the best parts of those laws.
According to Bedford, the law protects people who were in the wrong place at the wrong time from having arrests show up on applications for employment or school.
“Alabama’s law is much more narrow on what can be expunged than other states,” Bedford said. “The good news is, there is now a law in place that allows expungement in some cases.”
After an expungement, the court records in question are deemed to have never existed. It requires court and law enforcement agencies to deny the existence of expunged court records, even though the records are actually stored by the state. The law reads: “Except as provided in this chapter, the court and other agencies shall reply to any inquiry that no record exists on the matter.”
Bedford said the bill passed the Senate with no major hurdles, but in the House there was mixed support after a handful of law enforcement agencies and district attorneys expressed concerns about the bill, based on the fact they would not be privy to information in the event someone with an expunged record is charged with new crimes in the future.
The law requires expunged records to be kept by the Alabama Criminal Justice Information Center where they are accessible only with a court order. The records include arrest reports, booking and arrest photographs, as well as computer database records of the state. The state retains a copy of the case indefinitely.
“One important thing to note about the law is that it does not allow expungement for anyone who was actually convicted of a crime,” Alabama Law Institute Director Othni Lathram said. “That’s a common misconception about the law.” But what makes this law different from most is it carries a criminal penalty for publication.
According to section 15-27-16 of the Alabama code, anyone who knowingly divulges, gives access to or makes public the contents of an expunged court record without a court order is guilty of a Class B misdemeanor. This issue can present “prior restraint” issues for a news agency covering someone with an expunged record.
Gregg Leslie, legal defense director of the Reporters Committee for Freedom of the Press, said publishing court records should never be a crime unless a reporter does something illegal to obtain them.
“Expungement statutes should only keep the court from releasing them, but they don’t create an Orwellian memory hole where the information must be treated as if it never existed,” Leslie said. “Such statutes are a problem because the government of course keeps that information and can use it against people, while the statute just means that the people will not know what information the government keeps on citizens.”
Lathram argued that the state’s law requires a number of hurdles to be cleared before anyone can face criminal charges for publishing expunged records.
“First of all, they have to know the records they published were expunged,” Lathram said. “It has to be done with malicious intent. There are people out there who publish mugshots and things on the web, and sometimes they unknowingly publish the information of people who’ve had their records expunged, but you have to prove it was malicious. There is a pretty high standard you have to cross.”
At press deadline this week, Caylor had not removed Smith’s expunged court file from his website, www.insider-magazine.com.