The Sun Herald is asking the state Court of Appeals to reconsider its decision that found records of the state Department of Marine Resources exempt from the state Public Records Act because Auditor Stacey Pickering's Office had subpoenaed them.
The Court of Appeals ruled in favor of the DMR and auditor's office, declaring DMR's business records fell under the criminal investigations exemption to state law.
In the request for a rehearing, Sun Herald attorney Henry Laird points out the media company filed a public records request for many of the documents before Pickering's office subpoenaed the documents in January 2013.
Laird also said in the request for a rehearing that the public records law, and Supreme Court decisions, say requests for records should be liberally construed and denials narrowly interpreted.
The Sun Herald asks that the Court of Appeals award attorney fees, as the public records law allows.
Chancery Court Judge Jennifer Schloegel presided over the case when the Sun Herald filed suit over the DMR's refusal to supply the records, citing the auditor's subpoena. Schloegel found the DMR compiled the records in the ordinary course of business. She said the records were not created for a criminal investigation and ordered the DMR to provide the Sun Herald copies.
Instead, the auditor's office took the records in the middle of the night to Jackson, turning them over to a federal grand jury that subpoenaed them after Schloegel's ruling.
As a result, Schloegel found State Auditor Stacey Pickering in civil contempt of court for failing to follow her ruling. The Court of Appeals reversed her decision.
U.S. District Judge Keith Starrett also properly found the public records law should be interpreted in favor of openness, Laird noted. Starrett found the DMR records were public and ordered them returned to Schloegel's courtroom from the federal grand jury in Jackson.
Laird said the DMR should have provided the auditor's office copies of the records rather than turning over originals, especially because the Sun Herald had already requested many of the same documents.
Six of 10 appellate judges decided the records fell under the criminal investigations exemption: Joseph Lee, Tyree Irving, Kenneth Griffis, Eugene Fair Jr., Ceola James and Jim Greenlee. Judge Virginia Carlton dissented. Judges Donna Barnes, David Ishee and Jack Wilson did not participate in the decision.
If the Court of Appeals denies the Sun Herald's request for a rehearing, the media company can petition the state Supreme Court to hear its appeal.