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Saturday, March 10, 2012

Ind. Courts - South Bend Tribune required to remove published story that was based on records released by trial court order

Late yesterday afternoon the ILB read and posted the first few paragraphs of a story that had been then just posted on the South Bend Tribune website. This was the fifth paragraph of the long and powerful story:

A judge ruled in The Tribune’s favor in a public records request opposed by DCS attorneys for copies of the hotline recordings and transcripts involving the ... death of XXXXXXXXXXXX. The files were released to The Tribune this week.
Shortly thereafter, the story was removed from the SBT website.

Tim Evans reports this morning in the Indianapolis Star:

The Indiana Court of Appeals approved an emergency request Friday from the Department of Child Services that prevents the South Bend Tribune from publishing a story based on the recording of a call made last year to the state's child abuse hotline.

On Tuesday, a St. Joseph County judge ordered DCS to release a copy of the May call to the hotline alleging 10 children were being abused in a South Bend home.

The Tribune briefly posted a story on its website based on the tape, along with audio clips from the 20-minute call. Both were removed after the appeals court ordered a stay of the local court order late Friday afternoon.

The Court of Appeals also set a hearing on the matter for Monday. * * *

The fight comes just one day after lawmakers gave final approval to Senate Bill 286. Included in the legislation addressing a number of DCS policy issues is a provision making recordings of calls to the hotline confidential unless a judge orders the information to be released.

Gov. Mitch Daniels could sign or veto the bill. The governor's spokeswoman, Jane Jankowski, said Daniels had no comment on the legal dispute.

DCS Director James Payne repeatedly has pledged that the agency would be open and transparent.

But one critic of the agency, Dawn Robertson of the family-rights group HonkForKids.com, says that has not been her experience.

"I've heard Director Payne say over and over how DCS would be open and transparent," she said. "In the years since, families we have worked with have repeatedly run into hurdles just getting their own records.

The South Bend Tribune's story today, published instead, is headed "State court blocks DCS hotline story: Tribune to argue Monday for right to report on call before boy was tortured, killed." It is reported by the two authors of yesterday's story, Mary Kate Malone and Virginia Black, who have been investigating and publishing a series of stories on the DCS for more than month. Some quotes from the must-read story:
SOUTH BEND - The Indiana Court of Appeals granted a request Friday that prevents The Tribune from publishing records the newspaper obtained from the Department of Child Services.

The appeals court’s ruling came three days after a local judge ordered the release of phone records from DCS’s child abuse hotline related to 10-year-old Tramelle Sturgis and his family — ending weeks of DCS legal efforts to keep them out of the public realm.

The records include four audio recordings of hotline calls and accompanying transcripts related to Tramelle, who was found tortured and killed in his home Nov. 4.

But an hour after The Tribune published a story on its website Friday that described one of the phone calls and raised related issues, the appeals court granted the emergency stay DCS requested to prevent The Tribune from publishing the material.

On advice from its attorney, The Tribune removed the story from its website and is forced to refrain from publishing information about the content of the calls. If it does otherwise, the newspaper could be held in contempt of court.

“I am saddened by today’s ruling that delays us from telling this important story,” said Kim Wilson, The Tribune’s president and publisher. “We will continue to fight to provide additional insight and information that might help our community to prevent future tragedies such as the untimely death of Tramelle Sturgis last year.”

A hearing on the matter is scheduled for 2 p.m. Monday in Indianapolis. The court will hear arguments from DCS and The Tribune, with each side given 20 minutes to make its case.

‘Patently unconstitutional’?

In a motion filed Friday afternoon objecting to DCS’s motion for an emergency stay, Tribune attorney Gerald Lutkus argued the U.S. Supreme Court has consistently struck down efforts to restrain the media from publishing information, whether temporarily or permanently.

“The stay requested by DCS is patently unconstitutional in that it is a classic prior restraint on the press,” Lutkus wrote in his motion.

Steve Key, executive director of the Hoosier State Press Association, said it is “very rare” for a court to grant such an order.

“Anytime the government steps in to prevent newspapers from publishing information that they legitimately obtained, it raises huge first amendment issues,” Key said.

He said DCS’s attempt to keep The Tribune from publishing stories on records it already has in its possession is like “trying to put the genie back in the bottle after you’ve let it loose.”

ILB: Here is the 2-page Order issued by Chief Judge Robb of the Indiana Court of Appeals yesterday. The operative language:
Appellant's Verified Emergency Motion to Stay Order Granting Access to Public Records is GRANTED pending further order of this Court. The March 6, 2012 Order Granting Access to Public Records issued by the Honorable Peter J. Nemeth, Judge of the st. Joseph Probate Court, is HEREBY STAYED pending further order of this Court.
Appellant's Verified Emergency Motion to Stay Order Granting Access to Public Records will be heard on Monday, March 12, 2012, at 2:00 p.m., Indianapolis time. The hearing will be held in the Court of Appeals Courtroom, Room 413, State House. It is CAUSE NO. 71A03-1203-JM-I06.

Here is the DCS 5-page petition for an emergency stay of the trial court order. Here is the 2-page South Bend Tribune response.

Posted by Marcia Oddi on March 10, 2012 12:43 PM
Posted to Indiana Courts