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PLN's cert. petition in FOIA case gets recognition

National Law Journal, Aug. 10, 2011. http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id...
PLN's cert. petition in FOIA case gets recognition - National Law Journal 2011

Brief of the Week: A tale of the tape

Tony Mauro

The National Law Journal

08-10-2011

Just how public are the public proceedings in federal courts?

That is the question at the core of a petition filed earlier this summer in Prison Legal News v. Executive Office for United State Attorneys by former solicitor general Paul Clement, now with the Bancroft law firm in Washington.

Clement, representing the prison news publication pro bono, asserts that under the Freedom of Information Act, videotaped records shown at a public trial must also be released to the public after the trial.

A ruling against disclosure by the U.S. Court of Appeals for the 10th Circuit, Clement wrote, "minimizes the constitutional notion of a public trial and runs counter to a longstanding tradition of making public records generally accessible to the public at large."

The issue arose in the context of a gruesome 1999 prison cell murder at the U.S. penitentiary in Florence, Colo., a high-security prison with "a history of grace security problems," according to the brief. Cousins William and Rudy Sablan murdered their cellmate Joey Estrella. Prison officials who arrived at the scene videotaped the aftermath, including images of the Sablans disemboweling their victim.

"The murder was pretty off the hook. You don't often have cannibalism in U.S. prisons," said Paul Wright, editor of Prison Legal News, a nonprofit publication that has reported aggressively on prison issues for an audience of inmates, lawyers and others since 1990. "You had three men in a solitary confinement cell, and they were drunk and armed. We still don't know where they got the knives from and where they got the booze from."

The videotapes were used by the government in both murder trials as evidence against the suspects. The Sablans were found guilty, but not sentenced to death as the government requested. When Prison Legal News sought access to the video under the FOIA after trial, the government invoked several exemptions from the law, primarily 7(c), which allows the withholding of law enforcement records that would cause "unwarranted invasion of personal privacy" if released. The claim is that the release of the video would invade the privacy of the family of the inmate killed in the prison cell.

The 10th Circuit sided with the government, finding that the use of the videos in court was a "limited nature" disclosure that should not automatically trigger general release under the FOIA. "This decision thus significantly shrinks the set of people who can view audiovisual evidence first hand," Clement wrote. He added that the privacy exemption cannot be invoked when records have already been made public. The D.C. and 2nd Circuits have ruled in favor of disclosure in similar cases.

"The videotapes were viewed not in one but two public trials, and they were never under seal," said Wright. Wright and his colleagues debated whether it was wise to appeal to the Supreme Court, having filed FOIA lawsuits before. "We take our litigation very seriously."

Why did he seek out Clement, who is usually identified with conservative causes? Wright said he saw an article in The National Law Journal detailing Clement's pro bono work challenging prosecutorial immunity in a wrongful conviction case, Pottawattamie County v. McGhee, several years ago. Clement took on the FOIA case while at King & Spalding, and stuck with it when he left for Bancroft in April.

Two amicus curiae briefs have been filed in support of Prison Legal News: one, by Arnold & Porter's Lisa Blatt, on behalf of several media organizations, and the other for civil rights groups, by Hillary Richard of Brune & Richard in New York. The government has until Aug. 17 to respond.