Recent Court Cases
Researched and compiled by Bruce T. Moats, Esq.
©2021 Bruce T. Moats
Reprinted with permission by the Wyoming Press Association
DISTRICT COURT SUMMARIES
KTWO Corporation et al. vs. Hot Springs County School Dist. One, Fifth Judicial District, Docket number unknown (Dec. 16, 1993).
QUESTION PRESENTED: Does the Wyoming Open Meetings Act allow a school board to prohibit videotaping of meetings.
FACTS/ARGUMENT: School board adopted a policy that prohibited videotaping of public meetings. KTWO videotaped the meeting where the policy was adopted, and the cameraman was asked to stop recording after its passage. The policy was triggered by a local group of dissenters who began videotaping board meetings.
The District argued that the Public Meetings Act did not explicitly provide the right to video record the meetings, so the Board was free to prohibit it. The trustees argued that the videotaping was disruptive.
HOLDING: The Court cited to the court cases finding that public meetings statutes are to be read liberally in favor of openness. “It would appear from the Wyoming case law and decisions of other jurisdictions that there is a movement away from closed and secretive meetings of public agencies.”
The Court found that the policy banned all videotaping whether done in a disruptive manner or not done in such a manner. The Act allowed the Board to prohibit videotaping that was truly disruptive.
Interestingly, the Court also ruled that the Board did not adopt the rule in compliance with the Administrative Procedures Act. The Board did not follow the dictates as to timelines and opportunity for public input in W.S. 16-3-103.
Rawlins Daily Times v. Downtown Development Authority, Second Judicial District, Docket No. 10-339 (Dec. 20, 2010)
QUESTION PRESENTED: Did the executive session the DDA held to discuss a lease for a downtown art gallery violate the Act, and should the minutes of the session be released.
FACTS/ARGUMENT: The DDA recognized its mistake and stipulated that the session was improper. W.S. §16-4-405(b) requires a court order to release minutes and the DDA agreed to stipulate to the court that the minutes could be released pursuant to a Court order.
HOLDING: The Court ordered the release of the minutes.
Rawlins Daily Times v. Carbon County School Dist. 2, Second Judicial District, Docket No. 12-20 (April 18, 2012).
QUESTION PRESENTED: Did the school board violate the Public Meetings Act by using a secret ballot to appoint a person to a vacant position on the Board.
FACTS/ARGUMENT: The Board relented and agreed that the secret ballots violated the Act. Several votes were taken and resulted in a tie until finally a candidate was selected. Unfortunately, while the vote tallies were kept, the slips of paper used to vote were not kept and could not be produced.
HOLDING: The consent order was entered into which the Board agreed it had violated the Act.
Cheatham v. Casper City Council, Seventh Judicial District, Docket No. 0995 (Oct. 13, 2017)
QUESTION PRESENTED: Did the Casper City Council take “action” as defined by the Wyoming Public Meetings Act when it decided to take no action on a citizen complaint in executive session.
FACTS/ARGUMENT: Debra Cheatham made a complaint to the City Council regarding the settlement of a claim against the city by the city manager, asserting he acted outside his authority. In executive session, the Council determined that he had acted appropriately, and that her complaint had no merit. No public vote was taken.
Cheatham was notified by a letter from the mayor that the council decided to take no action on the complaint. Several council members in response to questions by Cheatham at an open meeting referred to the “action” they had taken in executive session.
Council argued that it took no vote and that by taking no action was not an action under the Act.
Cheatham argued that the decision made by the council to take no action on the complaint was a decision that qualified as “action” under the Public Meetings Act. The Act defines action as “the transaction of official business of an agency, including a collective decision, a collective commitment or promise to make a positive or negative decision, or an actual vote…” W.S. 16-4-401(a).
HOLDING: The Court held that the Council had to make a decision when it concluded as a body that no action should be taken on the complaint. The Act clearly states that a vote is not necessary and that the Council made a “collective decision” defined as “action” under the Act.
The Court declared the action taken by the Council to be “null and void” as required by the Public Meetings Act when action is taken that is not in compliance with the Act. W.S. 16-4-403(a). Minutes of the executive session recording the conversation about the complaint was ordered to be released publicly.
Cain v. Rawlins City Council, Second Judicial District, Docket No. 18-161, (July 2019)
QUESTION PRESENTED: Did the Rawlins City Council violate the Public Meeting Act when it discussed and decided in executive session that a citizen complaint was without merit.
FACTS/ARGUMENTS: Rose Cain, the operator of a trash hauling business, complained that the City was allowing a competitor to operate outside City ordinances.
The Council discussed and took action on the complaint in executive session. An email by the city manager to the competitor said the council had decided that the business was in compliance with city ordinances. The Council agreed to release its executive session minutes, but continued to argue that the Council had cured the violation pursuant to the process outlined in Gronberg v. Teton County Housing Authority. To cure a violation of the Public Meetings Act where a governing body makes an illegal decision in executive session, a governmental body may conduct “a new and substantial reconsideration of the action in a manner which complies with the Act.” This reconsideration must afford the public “ample opportunity to know the facts and to be heard with reference to the matters at issue.” Gronberg v. Teton Cty. Hous. Auth., 2011 WY 13, & 24-25, 247 P.3d 35, 42.
HOLDING: The Court agreed that the Council had violated the Act by discussing and deciding on the complaint in executive session. However, the Court held that the Council had cured the violation when the complaint was indirectly discussed in a subsequent meeting and then the Council later asked for comment, without indicating whether it was from council or the public, and then a few seconds later, voted to reaffirm their decision that there was no merit to the complaint.
NOTE: The Court’s analysis did not seem to comply with the requirements of Gronberg, but the petitioner decided against an appeal as she had made her point that the Council was violating the Public Records Act.
Barbour v. Teton County Commissioners, Ninth Judicial District, Docket No. 18365, (Jan. 11, 2020).
QUESTION PRESENTED: Did the Teton County Commissioners have to give a library board member notice that the body was going to hear complaints against her or consider her dismissal from the library board so that she might exercise her right to ask that the discussion of the complaints and her proposed removal be discussed in public as afforded by the Public Meetings Act.
FACTS/ARGUMENT: Two members of the Teton County Library Board asked that they be heard by the commissioners regarding complaints about another library board member and to request her removal. Dail Barbour had no notice that complaints were to be aired against her.
W.S. 16-4-405(a)(ii) allows a governing body to go into executive session “to consider. . . dismissal of a public officer, professional person or employee . . . or to hear complaints or charges brought against” the officer, “unless the employee, professional person or officer requests a public hearing.”
Barbour argued that her right to request a public hearing would be meaningless unless she has notice that she was going to be discussed. (Barbour also contended she was denied due process, but that claim is outside the scope of this endeavor.). The commissioners argued that the statute does not specifically require notice to the employee, officer or professional person.
HOLDING: The Court agreed in an initial ruling that the right to request a public hearing would be meaningless without notice that the person is going to be the subject of an executive session. Barbour was reinstated to the library board, and the county paid her attorney fees pursuant to an agreement ending the case.
SUPREME COURT SUMMARIES
Emery v. City of Rawlins, 596 P.2d 675 (1979)
QUESTION PRESENTED: Did an informal discussion before a council meeting violate the Public Meetings Act.
FACTS/ARGUMENT: Property owners protested assessments for a special improvement district, and asked that an ordinance setting the assessment be declared null and void.
HOLDING: The Court ruled that the Public Meetings Act definition of a meeting at the time required a vote or decision to be made. No such decision was made in this case, the Court ruled.
NOTE: The definition of a public meeting was later amended not only to define a meeting as one where action is taken, but also one where “discussion, deliberation, [or] presentation of information” occurs.
Ward v. Goshen Co. School Dist. No. 1, 868 P.2d 618 (1993)
QUESTION PRESENTED: Should a decision to close schools be declared null and void because the school board held a special meeting without proper notice but where no action was taken.
FACTS/ARGUMENT: The board held two special meetings where the closures of schools was discussed. The meetings were not properly noticed, but the plaintiffs were in attendance. A vote to close the schools was held at a later properly noticed meeting.
HOLDING: No transcript of the two special meetings existed and the plaintiffs failed to point to any evidence that a decision was made at these meetings. All issues were discussed at a properly noticed meeting a day prior to the meeting where the vote was held. Therefore, the actions taken were proper.
NOTE: As a result of this decision, the definition of a public meeting was later amended not only to define a meeting as one where action is taken, but also one where “discussion, deliberation, [or] presentation of information” occurs.
Deering v. Fremont Co. Library, 954 P.2d 1359 (1998)
QUESTION PRESENTED: Was the termination of a library employee null and void because the meeting where the action took place was not properly noticed.
FACTS/ARGUMENT: The board decided to eliminate three positions, including Mr. Deering’s, in a reduction in force due to budgetary constraints. He argued that the notice for the meeting did not cite that reduction in force would be discussed. The notice of a special meeting must list the subjects to be considered. W.S. §16-4-404(b).
HOLDING: The meeting where the action was taken was not a special meeting but the rescheduling of a regular meeting. The public is on notice that any subject may be discussed at a regular meeting, so no special notice of the topics was needed.
The Court found no merit in the argument that the rescheduling of the regular meeting was not done according to parliamentary rules. The board agreed to reschedule but apparently did not formally vote. The Court said the plaintiff offered no legal authority to sustain his position that a violation of the parliamentary rules was sufficient to overrule his termination.
Fontaine v. Park County Commissioners, 4 P.3rd 890 (2000).
QUESTION PRESENTED: Did the Public Meetings Act require that minutes be taken of executive sessions so that the county clerk had to be in attendance to take the minutes.
FACTS/ARGUMENT: County Clerk Marie Fontaine was not allowed into the executive sessions of the county commissioners. She contended that one of her duties was to take minutes. Therefore, she had to attend the executive sessions to do so.
The commissioners argued that the purpose of the sessions to allow candid conversations would be thwarted if Fontaine had to attend.
HOLDING: The Court found that the Public Meetings Act required minutes to be taken of executive sessions pursuant to W.S.§16-4-403. The statute requires minutes of all meetings except day-to-day activities where the commissioners acted as administrators and not policy makers.
Mayland v. Flitner, 2001 WY 69
QUESTION PRESENTED: Did the county commissioners violate the Public Meetings Act when they discussed a private road application in executive session.
FACTS/ARGUMENT: Mayland challenged the commissioners’ decision to allow a private road across her property to another person’s property. She challenged the discussion of the private road application in executive session.
HOLDING: The Court found that the application for a private road “is not covered by any of the exceptions” to public meetings in the Public Meetings Act. However, it said no decision was made on the private road, so there was no decision to declare null and void. The findings of fact and conclusions of law that the commissioners asked their attorney to prepare on the issue was discussed and voted upon at a later public meeting.
Cheyenne Newspapers v. Bldg. Code Bd. of Appeals, 2010 WY 2.
QUESTION PRESENTED: Were quasi-judicial deliberations of a governing body exempt from the Public Meetings Act, and was a board of a city a “governing body” as contemplated by the Act.
FACTS/ARGUMENT: The City of Cheyenne Building Code Board of Appeals held an executive session to discuss whether to uphold the denial by the Historic Preservation Board of permits to demolish six homes in an historic district. The board contended it was acting as a quasi-judicial body as it was hearing an appeal of the Historic Preservation Board’s denial of the permits. It also claimed that the city council was the “governing body” for the city and the appeals board was not a governing body. The board noted that its decision could be appealed to the city council.
HOLDING: First, the Court noted that the “media as the public’s representative, have standing under our precedent to determine the applicability of the Act under these circumstances.”
The board was an agency as defined by the Act in W.S. 16-4-402(a)(ii). The definition of agency includes “any . . . board . . . [of] a municipality.” The board was created by ordinance, one part of the definition of an agency.
The board was a governing body as it had “ultimate control over [its] decisions. To say that the council is the governing body of the city would render the definition of an agency in the Act “nonsensical.”
The Court further ruled that there was no exception to public meetings for quasi-judicial proceedings. Therefore, the executive session violated the Act. The Court did not declare the board’s ultimate decision null and void because it was discussed and voted upon at a public meeting.
A dissent by Justice Burke would have remanded the case back to the district court to determine if any decision was made in the executive session. That factual question should have precluded summary judgment and required a hearing in the district court below.
A concurrence by Justice Kite, joined by Justice Hill, said the media/public could seek injunction against planned executive session if they believed the session would violate the Act.
Gronberg v. Teton County Housing Authority, 2011 Wy 13.
QUESTION PRESENTED: Could a governing body cure a violation of the Public Meetings Act by reaffirming a vote.
FACTS/ARGUMENTS: The housing authority board decided to purchase property in an executive session. The board recognized its error and then discussed and voted to approve the purchase in a public meeting.
HOLDING: The Court ruled that focus of the Act is on process of governmental decision-making and not on the ultimate outcome. The Act does not favor one outcome over the other.
A governing body may cure a violation of the Public Meetings Act where a governing body makes an illegal decision in executive session, if it conducts “a new and substantial reconsideration of the action in a manner which complies with the Act.”This reconsideration must afford the public “ample opportunity to know the facts and to be heard with reference to the matters at issue.”
The Court found the housing authority had done a new and substantial reconsideration.
Cheyenne Newspapers v. City of Cheyenne, 2016 Wy 125.
QUESTION PRESENTED: Did a committee of the City of Cheyenne created to make a “final plan” for the implementation of the recommendations of an employee compensation study that had to be approved by the city council have to follow the Public Meetings Act.
FACTS/ARGUMENT: The City of Cheyenne created by resolution an Employee Investment Study Implementation Team after an employee salary study was met with controversy within the council.
The City argued the committee was not formed by an ordinance. Therefore, it did not meet the definition of an “agency” in the Act. W.S. §16-4-402(a)(ii) defines an “agency” as “any authority, bureau, board, commission, committee, or subagency of the state, a county, a municipality or other political subdivision which is created by or pursuant to Wyoming constitution, statute or ordinance. . .”
The newspaper argued that the phrase “pursuant to” meant that the City was using its authority under the constitution and statute to create the committee. It pointed out that hospital boards and school boards do not have ordinances, so even a permanent committee of a hospital or school board would not be governed by the Act if it must be created by ordinance.
HOLDING: As the committee was temporary and, therefore, properly formed by resolution rather than ordinance, it did not fall under the Act. Further, the committee did not make the final decision on the compensation plan. The committee created by resolution is “the kind of impermanent body” that is not an agency.
The Court noted the concern that a governing body may use temporary committee to avoid having controversial or sensitive discussions in public. And noted a Florida case which held that “a public body cannot escape the application of the Sunshine Law by undertaking to delegate the conduct of public business through an alter ego.” It said there was no record of such evasive activity occurring here.
Sheridan Newspapers v. Sheridan County School Dist. No. 2, 2015 WY 70.
QUESTION PRESENTED: Did the school board violate the Public Meetings Act when it discussed the location of a proposed recreation center in executive session.
FACTS/ARGUMENTS: The school board discussed the potential location of a recreation center in closed session.
The newspaper asked for a declaration that the closed session violated the Act and sought release of the executive session minutes.
Both the lower court and the Supreme Court reviewed the minutes in chambers.
W.S. § 16-4-405(a)(vii) allows executive sessions to consider a site for a project or the purchase of real estate “when the publicity regarding the consideration would cause a likelihood of an increase in price.”
HOLDING: The minutes of the executive session on the recreation center do not indicate that disclosure would likely cause an increase in price. Meetings with attorneys can be held in executive session if the attorneys are providing legal advice, but the minutes do not contain any legal advice from the attorneys. Therefore, the Court ordered the minutes released.
Further, the Court held that exceptions in the Public Record Act do not govern public meetings. The school had argued that the deliberative process privilege adopted in public records litigation supported the propriety of the executive session and the confidentiality of the minutes. The privilege could not be used as basis to close a meeting.
DISTRICT COURT SUMMARIES
Gillette News-Record v. Eekhoff, Eighth Judicial District, Docket No. 21815 (April 13, 1999)
QUESTION PRESENTED: Should the “coroner’s autopsy report” on the death of Campbell County Attorney Michael Maycock be available to the public.
FACTS/ARGUMENT: Mr. Maycock was found hanging, without clothes, in a cabin he owned. The cause of death attributed to accidental sexual asphyxiation. His brothers refused to accept that cause, while his wife and children agreed that the cause was correct. The Maycock Estate intervened in the lawsuit asserting privacy and ownership interests. The Estate argued the sexual nature of the death weighed against release.
The coroner argued that his “Report of the Coroner” was the only document required to be released. The respondents further argued that release would result in “copy-cat” deaths by sexual asphyxiation. However, their expert, the Natrona County coroner, testified that this type of death is often misconstrued by law enforcement, family and the public as suicide rather than accidental by sexual asphyxiation. He also testified that public education was necessary to help prevent these kinds of deaths.
Respondents argued that the report was exempt pursuant to W.S. 16-4-203(d)(i) as a medical record, and disclosure would constitute an unwarranted invasion of privacy. They further argued that W.S. 16-4-203(g), the so-called catch-all provision of the Public Records Act, allows custodians to seek court permission to withhold records that do not fall within any of the exemptions in the statute if release would do substantial injury to the public interest.
HOLDING: The Court held that autopsy reports are specifically excluded from the exemption for medical Records. The Courts found little privacy interest at play in the case. “The deceased no longer has a common-law privacy right.”
The Court cited the definition of an unwarranted invasion of privacy as “the publicizing of one’s private affairs with which the public has no legitimate concern,” and found that the public has a legitimate interest in the operation of the County Coroner’s office and how it arrives at its conclusion. “Without disclosure of the Coroner’s records the public has no way of determining whether its elected official – the Campbell County Coroner – is appropriately doing his job.”
In that vein, the Court also ruled that there would not do substantial injury to the public by release, as this type of death is “sufficiently common” to have its own category and respondents had not demonstrated a risk of “copy-cat” activity.
NOTE: A statutory change has made much less information available now from autopsy reports. See W.S. 7-4-105.
Gillette News-Record v. Pagel, First Judicial District, Docket No. 155-180 (May 16, 2000)
QUESTION PRESENTED: Is the investigative report by the Division of Criminal Investigation into the death of Michael Maycock, including the autopsy report, available to the public. (Coroner Eekhoff, after being ordered to release the autopsy report claimed he had given his only copy to DCI).
FACTS/ARGUMENTS: DCI claimed the report was exempt from disclosure pursuant to the so-called investigative exemption at W.S. 16-4-203(b)(i). The agency argued that releasing the report would result in a “chilling effect” on witnesses in future investigations.
HOLDING: Release of the report would not be contrary to the public interest, but the Court ordered redaction of unsubstantiated allegations against third parties, personal family information and graphic photos of the deceased.
Neal v. Olson, Seventh Judicial District, Docket No. 78353-B (May 11, 2000)
QUESTION PRESENTED: Is the report of an investigation into discrimination against Casper school principal available to the public.
FACTS/ARGUMENT: A black junior high principal in Casper alleged that he was subject to possible racial harassment. An independent investigator completed a report on the allegations. The school district argued that the report was part of the principal’s personnel file and exempt under the so-called “personnel files” provision at W.S. 16-4-203(d)(iii).
HOLDING:The report, while touching on personnel matters, was not a “personnel file containing items such as employment applications, performance ratings, scholastic achievement data, etc. for an identified employee.” The Court rejected the district’s argument that it should be considered a personnel file within the meaning and spirit of the applicable statutes. Such an approach would be “contrary to the requirement of Wyoming law that exemptions to public disclosure are to be construed narrowly.” The Court allowed redaction of the names of witnesses. The newspaper did not argue for release of the names. The Court held that release of witnesses might chill the district’s future investigations.
In the Matter of: State of Wyoming, Director of the Office of State Lands and Investments’ Application for Order Restricting Public Records from Disclosure, First Judicial District Court, Docket No. 156-264 (March 3, 2000).
QUESTION PRESENTED: Should an appraisal of a 640-acre parcel of school trust land ordered by the State of Wyoming be available to the public.
FACTS/ARGUMENT: The state asked for requests for proposals for the purchase, exchange or lease of the subject parcel. As part of the process, the state obtained an appraisal of the parcel. The state argued that the report was exempt from disclosure under the catch-all exemption at W.S. 16-4-203(g). The exemption for appraisal in the Public Records Act at W.S. 16-4-203(b)(iv) allowed only appraisal of land the state proposes to buy, not sell, to be excluded. Therefore, the state resorted to subsection (g) which requires a custodian to ask the court for permission to withhold records not otherwise exempt, if release would do substantial injury to the public interest. The state argued it would “limit its bargaining position” with the seven entities providing proposals regarding transfer of the parcel
HOLDING: The catch-all provision is only meant to be used in “extraordinary situations which the [Legislature] could not have identified in advance.” The Court concluded “that the public’s right to comment on all aspects of the process outweighs the Board’s desire to complete the negotiations without disclosing the appraisal.”
Neal v. Pagel, First Judicial District, Docket No. 157-838 (Feb. 28, 2001)
QUESTION PRESENTED: Should a Division of Criminal Investigation report on whether a state representative had lied about living in her district in Casper be made public.
FACTS/ARGUMENT: State Rep. Carolyn Paseneaux was accused of lying when she asserted that she lived within the district she represented in the State Legislature. DCI argued that release of the report would prevent people from cooperating with the agency in future investigation.
HOLDING: The Court rejected the argument and ordered the report released except for the names of three witnesses who were interviewed as part of the investigation. Under cross examination, DCI’s expert witness, former Albany County prosecuting attorney, Cal Rerucha, admitted that he had been able to continue to investigate and prosecute cases even after the intense international media interest in the Matthew Shepard murder case.
Allsop v. Cheyenne Newspapers, First Judicial District, Docket No. 158-720 (Dec. 4, 2001)
QUESTION PRESENTED: Did the Wyoming Criminal History Records Act prevent release of the names, addresses or any other identifiable descriptions of individuals arrested by the Sheriff’s Department and individuals detained in the Laramie County Jail.
FACTS/ARGUMENTS: The sheriff argued that release of the names of those in the county jail was exempt from public access as “criminal history record information.” The newspaper argued that a liberal interpretation of the language favoring openness, as required in interpreting the Public Records Act, requires that the names be available to the public.
HOLDING: Criminal history record information is that contained in the central repository at the Division of Criminal Investigation that is used by law enforcement to identify potential suspects in crime. Only the information in the repository is exempt from disclosure, not information on arrestees or jail inmates held through the state.
Albany County Hospital Dist. v. Laramie Newspapers, Second Judicial District, Docket No. 29166 (Dec. 28, 2004)
QUESTION PRESENTED: Should the severance agreement between Ivinson Hospital and its CEO be available to the public.
FACTS/ARGUMENT: Ivinson Hospital entered into a severance agreement with its CEO when it decided to terminate his contract prior to its expiration date. The hospital argued the agreement was part of the CEO’s personnel file exempt under W.S. 16-4-203(d)(iii), and as a hospital record under 203(d)(vii).
HOLDING: The hospital records exemption does not apply as the public interest in the expenditure of public funds outweighs any privacy interest by the CEO. The Court cited Houghton v. Franscell, 870 P.2d 1050 (1994), which held that contracts inducing physicians to come to Gillette with monetary incentives was a public record. The Court noted that this case was the payment of public funds to induce an employee to leave employment. The public had a legitimate interest in this expenditure of public funds and the release of the severance agreement did not constitute an unwarranted invasion of privacy. Therefore, it was not excluded under the hospital records exemption
Further, the Court ruled that the severance agreement was a document setting forth the terms and conditions of employment – the ending of that employment. Such documents are specifically public records under the so-called personnel exemption.
Schmidt v. Falgoust, Fifth Judicial District, Docket No. C05-80 (July 2006)
QUESTION PRESENTED: Should the charges or reasons for arrest of those booked into the Hot Springs County jail be available to the public.
FACTS/ARGUMENT: The sheriff argued he must have discretion in the release of information about jail inmates pursuant to the so-called investigative records exemption at W.S. 16-4-203(b)(i).
HOLDING: The charges and reasons for arrests are the product of investigation, not a record of investigation. Therefore, the investigative records exemption does not apply. The judge noted that in 18 years on the bench, he had tried very controversial cases and that experience has “taught that the public’s need to know about the activities of law enforcement and judicial system is of the essence in a democratic society that in which we, as Americans, live.” “The power to arrest without a warrant can be unbridled unless law enforcement officers have some obligation to disclose to the public what they have done.”
Thuermer & Dewell v. St. John’s Medical Center CEO, Ninth Judicial District, Docket No. 14965 (June 30, 2009)
QUESTION PRESENTED: Are records, excluding patient names and identifying information, of surgeries performed at a hospital restricted from disclosure under the HIPAA.
FACTS/ARGUMENTS: A patient at St. John’s Medical Center bled to death after a botched surgery. The death led to a public issue over whether the hospital was performing surgeries for which it was not prepared for adverse outcomes. The newspaper sought a “list of and the number of surgeries performed at St. John’s overall from 2006 to 2008, categorized by date, type and method.” The Medical Center countered that the Health Insurance Portability and Accountability Act of 1996 (HIPAA) prevented release of the name.
HIPAA protects against the disclosure of personally identifiable health information.
The hospital argued that if a category held five or less surgeries that somehow people could put two and two together and figure out who had undergone those surgeries. Hospital officials were unable to explain on the stand how a citizen, without special knowledge about the person that the general public would not have, could come up with a name.
HOLDING: The Court held that the request would not reveal the identity of any patient. Further, the Court held that HIPAA does not counteract a state’s Public Records Act. If the information would be public under the state’s act, then HIPAA does not prevent its release. Neither did the provision in the Wyoming act preventing release of hospital records as the information sought would not be an unwarranted invasion of privacy. The public had legitimate concern about the operation of the county’s public hospital.
Laramie County Community College v. Cheyenne Newspapers, Docket No. 176-092, (May 25, 2010)
QUESTION PRESENTED: Could the court at the behest of LCCC forbid the use of a confidential investigation report into the conduct of the college president on a foreign trip with students.
FACTS/ARGUMENT: The newspaper anonymously received the report critical of the president’s actions, and asked the college for comment. In response, the college went to the court and obtained an ex parte [without notice to the newspaper] restraining order prohibiting the newspaper from publishing information from the report.
The college alleged that the report was an education record governed by the Federal Education Rights and Privacy Act and that the federal government could take away federal funding because the report was released.
The newspaper moved to dissolve the temporary restraining order and argued that there had been no case where federal funding was removed because of the release of student information.
HOLDING: The Court reviewed the report in chambers. The judge determined that FERPA does justify a prior restraint on publication. FERPA requires a “policy or practice of admitting the release” of student records. An unauthorized, single release of the report did not establish such a pattern.
Prior restraints come with a “heavy presumption against its constitutional validity,” and should be invoked “only in exceptional cases.”
The Court granted the motion to dissolve the TRO.
NOTE: The Wyoming Tribune-Eagle published a story on the report, being careful not to identify the students involved. The federal government did not move to remove federal funding from the college. The college president resigned later that year.
Hurlburt v. Wyoming Dept. of Revenue, First Judicial District Court, Docket No. 178-526 (Nov. 29, 2012)
QUESTION PRESENTED: Was the Department of Revenue custodian of Computer-Assisted Mass Appraisal records “housed” in the computers of the 23 county assessors in the state.
FACTS/ARGUMENTS: The department argued it was not a custodian of the records as they were housed in the county computers. The Public Records Act defines custodian as “the official custodian or any authorized person having personal custody and control of the public records in question.” W.S. 16-4-201(a)(i). The Act defines official custodian as “any officer or employee of the state or any agency, institution or political subdivision thereof, who is responsible for the maintenance, care and keeping of public records, regardless of whether the records are in his personal custody and control.”
HOLDING: Contracts between the department and the counties allowed the department to access the records in the county computers at any time. Therefore, the department had custody and control of the information, was able to provide it to the public and was, therefore, a custodian under the Act.
“Finally, given the legislative intent of the WPRA to maintain an open and accountable government, the Court concludes that multiple agencies may be custodians of the same records.”
Cheyenne Newspaper et. al v. University of Wyoming, Second Judicial District, Docket No. 2012-32631 (Jan. 23, 2013).
QUESTION PRESENTED: Should records that contain the names of the finalist for the presidency of the University of Wyoming be available to the public.
FACTS/ARGUMENT: The University had conducted a search for a new president and had arranged to interview finalists. A coalition of newspapers sued and asked that the names of the finalists be made public. The University argued that if the finalists were released it would deter current presidents from applying because their current institution might retaliate against them for applying elsewhere. And release would do substantial injury to the public interest.
In an evidentiary hearing, testimony showed that there had been no case where a college president was fired because he or she had applied elsewhere.
HOLDING: The policy of openness evidenced by the Public Records Act “outweighs the Board’s desire for every possible advantage they might obtain in choosing UW’s next president.” The Court concluded that UW had “failed to prove by a preponderance of the evidence that disclosure of the finalists’ identities would cause substantial injury to the public interest. Specifically, Defendants have not established that the consequences of disclosing the finalists’ identities would result in substantial inability on the part of the Board to obtain a qualified, and ultimately successful, President.”
NOTE: UW’s friends in the Legislature quickly passed legislation allowing colleges to withhold the names of candidates for president. UW moved for the Court to amend its decision to conform to the new legislation. However, the amendment to the Act was included in 16-4-203(b) which requires that the custodian only withhold records the release of which would be contrary to the public interest. The newspapers argued that the Court had already ruled that release was in the public interest, so the outcome would not change. UW then withdrew its motion, announced the candidates’ names, and hurriedly interviewed the candidates in Denver and made their selection.
Laramie v. Vitale, Second Judicial District, Docket No. 32894 (Jan. 6, 2014)
QUESTION PRESENTED: Should records showing whether a candidate for one of three deputy parks and recreation department director positions had the qualifications for the job be available to the public..
FACTS/ARGUMENT: The former mayor of Laramie was hired as the deputy director of parks and recreation, creating a controversy over whether she was qualified for the job. She had hired the department director when she was mayor.
The city argued that the information as to her qualifications were exempt under the personnel rules exemption, W.S. 16-4-203(d)(iii). The city would release the report to Vitale, a member of the city council, arguing that the deputy director was an employee of the city manager and not the council.
The newspapers pointed to the decision in the Supreme Court case of Houghton v. Franscell that ruled that the exemptions listed at 203(d) were intended only to exclude those records the release of which would constitute an unwarranted invasion of privacy. The release of one’s college degrees or their work history was not an unwarranted invasion of privacy, as most people celebrate their college graduations and their degrees are publicly announced, and publicize their work histories on resumes given to employers and published on the internet.
HOLDING: The candidate’s “college degree(s), as opposed to her college academic performance, and overall work history are not information akin to the private, personal data intended for protection.” The Court held this information was not the kind “that an individual would generally seek or even desire to keep secret.”
Casper Star-Tribune v. University of Wyoming, Second Judicial District, Docket No. 34888 (Jan. 3, 2020)
QUESTION PRESENTED: Should the investigative report and/or related records that preceded the non-renewal of President Laurie Nichols be available to the public.
FACTS/ARGUMENT: The newspaper sought records regarding an investigation by an independent, third party into the conduct of President Nichols prior to the decision by the UW trustees not to renew her contract. UW and Nichols argued that privacy interests prevented release of the records under the personnel files exemption at W.S. 16-4-203(d)(iii) and the internal personnel rules investigation exemption at W.S. 16-4-203(d)(xi). The newspaper argued that both exemptions required that there be an unwarranted invasion of privacy before the records could be withheld.
UW and Nichols argued that the records were exempt under the deliberative process privilege exemption contained within W.S. 16-4-203(b)(v). Under the privilege, the exempt communications must contain advice given prior to a decision and part of the deliberation process leading to the decision.
HOLDING: The Court agreed that there must be an unwarranted invasion of privacy in order to withhold the records. Here, the public interest in the leadership – both the trustees and the president – of the state’s only university is great and the privacy interest the president has in the performance of official duties are slim.
The Court rejected the argument by UW and Nichols that the records were exempt under the deliberative process exemption as they did not show any deliberation, and because the release would not be contrary to the public interest, as required in order to withhold documents under the exemptions in 203(b). The public had a great and overriding interest in the conduct of the president and the UW trustees. The Court also ruled the prerequisite to privilege that the advice contained in the communications must be “so candid or personal in nature the public disclosure is likely in the future to stifle honest and frank communications within the agency” was not met.
Cheyenne Newspapers v. Laramie County School Dist. One, First Judicial District Court, Docket No. 191-736 (April 2, 2020)
QUESTION PRESENTED: Should a report into racial discrimination/bullying at a junior high school in Cheyenne be available to the public.
FACTS/ARGUMENTS: Discriminatory posters were hung by a student at the junior high school. This elicited complaints that the posters were just part of a discriminatory environment at the school. The district asked its Title IX coordinator to investigate whether it was an isolated incident or part of a larger culture.
The District argued that the records were protected as student records pursuant to Family Educational Records Protection Act (FERPA). The District also argued that the documents were protected from disclosure pursuant to attorney-client privilege and work product (that reflect the thinking of the attorney) because the attorneys gave the Title IX coordinator instructions as to how to conduct the investigation. It also claimed that the report was exempt under the internal personnel rules investigation exemption at W.S. 16-4-203(d)(xi).
The newspaper argued that student names, if included, could be redacted, taking the documents outside FERPA protection. It also argued that the report was done to meet the district’s Title IX obligations and not to obtain attorney’s advice that would qualify it for the attorney-client privilege or work product privilege. Further, disclosure would not constitute an unwarranted invasion of privacy as required under 203(d)(xi).
HOLDING: The Court agreed with the newspaper on all accounts, but required the redaction of names and information that would identify individuals to members of the general public, as opposed to those with special knowledge. A summary of the report was not released as it was completed by the attorneys and was subject to attorney-client privilege.
Matt Adelman (Glenrock Independent publisher) v. Town Council of Glenrock, Eighth Judicial District, Docket No. 18374 (October 29, 2021)
QUESTION PRESENTED: Was an attorney hired to investigate allegations against the police chief by department employees acting as an independent contractor or as an attorney representing the town? Did the privacy interest of the chief and witnesses outweigh the public interest in disclosure -- pursuant to the exemption prohibiting release of reports of investigations of internal personnel policy violations that would clearly constitute an unwarranted invasion of privacy? See W.S. 16-4-203(xi).
FACTS/ARGUMENT: Employees of the police department made allegations against the Chief. A Casper attorney was hired to conduct an investigation into the allegations. The mayor decided to recommend the chief’s termination and the city council voted to uphold the termination by a 3-2 vote, after an abbreviated pre-termination hearing.
The town argued that the report could be withheld from the public based on attorney-client privilege. Further, the town argued that release of the report would violate the privacy interests of the chief and witnesses, and the town itself.
The newspaper argued that the attorney was acting as an independent investigation assigned to determine the facts and not an attorney providing legal advice to the mayor or the town. Further, the newspaper insisted that the actions of the police chief, the truth of the allegations and the performance of town officials during the controversy were all of legitimate public interest. That interest outweighed any privacy right of the chief and the complainants, though the court could redact the names of innocent witnesses or subjects that were involved through no actions of their own.
HOLDING: The Court held that the attorney was not acting as counsel for the town when she conducted the investigation. The privilege exists if three criteria are met: (1) there is a communication; (2) between a client and an attorney; (3) that is made in that attorney-client relation. No such relationship was created here. The attorney was appointed pursuant to a town policy that called for town officials to conduct such investigations, and the attorney was acting in place of town officials. The investigative report, pursuant to town policy, was to be delivered to town officials and the town attorney, who could then provide legal advice as to the facts found in the report, the Court found.
The Court agreed that the public interest warranted the release of the contents of the report, but redacted information regarding the allegation of a relationship between a teacher and student, including mental health information about the student. The Court also redacted unsubstantiated allegations of criminal conduct against a third-party officer contained in the complaint letter signed by other department employees. The officer did not sign the letter.
SUPREME COURT SUMMARIES
Laramie River Conservation Council v. Dinger, 567 P.2d 731 (1977)
QUESTION PRESENTED: Should the transcript of a public Industrial Siting Council meeting be available to the public?
FACTS/ARGUMENTS: A non-profit corporation sought to obtain a copy of a transcript of a public meeting of the Wyoming Industrial Siting Council. The non-profit appealed a decision by the Council to grant a power cooperative to build power plant units. The Council administration claimed the transcript was an intra-agency memorandum pursuant to W.S. §16-4-203(b)(v). The administration claimed the transcript was used for internal business.
HOLDING: The Court ruled that the transcript did not fall within the exemption, which it said “must be applied with some common sense. It would be absurd to declare the transcript confidential when the meeting itself was open to the public and the press.
Importantly, the Court said that a “showing of need” was not necessary to obtain public records. So, it does not matter who you are or your purpose in asking for the record. The question is whether the record is available to the public, i.e., anyone who asks for it.
“Restricting disclosure effectively cuts off the flow of such information and therefore should be done only when the requirements of a particular exemption are strictly met,” the decision states.
The Court was unmoved by the argument that officials might be embarrassed by the release of records. “Confrontation has a salutary effect and causes those in positions of public responsibility to practice thoughtfulness and wisdom in their utterances and carefully weigh their decisions. . . The disclosure acts promote within the agencies affected a sensitiveness to the needs of the public and make democratic government function in a modern society. With some necessary exceptions, recognized by Wyoming’s records and meetings acts, state agencies must act in a fishbowl.”
NOTE: The decision in Aland v. Mead, 2014 WY 83 calls into question the pronouncement that embarrassment of officials should not be a reason to withhold public documents, as part of the rationale for the so-called deliberative process privilege is that some advisors to decision-makers would be embarrassed if their advice, rejected by their bosses, is known to the public.
City of Sheridan v. Sheridan Newspapers, 660 P.2d 785, 799 (1983).
QUESTION PRESENTED: What law enforcement records may be withheld from public pursuant to Wyoming Public Records Act’s so-called investigative records exemption.
FACTS/ARGUMENT: The crime reporter for The Sheridan Press began taking funny little stories from the incident reports she reviewed at the police station. The people involved did not always see the humor in the incidents, and complained to the chief of police. The chief decided to withhold all police records and to present information from the records he selected at a news conference.
HOLDING: The Court held that records may only be withheld where any harm created by disclosure outweighs the public’s right to know. The burden is on the custodian to persuade the Court that disclosure would be contrary to the public interest.
“In Wyoming, public records (including police records) are to be open to the public unless the custodian - after restricting his decision-making to areas authorized by statute and after weighing the competing interests involving the public’s right to know against specific statutory mandate and perceived harm to the public interest through disclosure - decides to withdraw the record or a part thereof.”
If a custodian decides to withhold a document pursuant to one of the exemptions, he “must be able to satisfy the court that, in the balancing process, statutory withdrawal, when viewed in the spotlight of public-interest protections, outweighs the public policy which emphasizes disclosure.” The harm the custodian cites “must be real and not fancied.”
A custodian may deny inspection “where disclosure would impair an investigation or compromise the prosecution of a case.” Rolling logs or incident reports, and other records that are not the product of investigation, do not fit the exemption, and must be provided.
Houghton v. Franscell, 870 P.2d 1050 (1994)
QUESTION PRESENTED: Do contracts between a public hospital and doctors pursuant to which incentive payments were promised fall within the exemption for “hospital records.”
FACTS/ARGUMENT: Campbell County Hospital offered monetary payments to entice doctors to come to the community. The hospital refused to allow public access to the incentive contracts.
W.S. §16-4-203(d)allows a custodian to withhold “[h]ospital records relating to medical administration, medical staff, [and] personnel.” The hospital asserted “that the language of the exemption is plain and unambiguous and excludes from public inspection, among other records, all hospital or hospital district records relating to medical staff.”
HOLDING: The Wyoming Supreme Court ruled that the mandatory exemptions contained in W.S. §16-4-203(d), which also includes the personnel files exemption, was meant to protect only those documents the release of which would “constitute a clearly unwarranted invasion of privacy.” Release constitutes a clearly unwarranted invasion of privacy when it reveals personal information with which the “public has no legitimate interest.”
The Court did not limit its holding to only hospital records, but adopted this “definition of invasion of privacy for purposes of exempting records from disclosure under the public records act.”
The Court first cited the constitutional right of access to government information. Pursuant to this constitutional right of access, the Court ruled that “absent a compelling state interest, the state may not exclude an entire class of records from public inspection.” The Court then went on to interpret the hospital records exemption “in light of the legislative presumption of openness and in keeping with the constitutional right of access to public records. . .”
The Court also ruled that the public interest is at its zenith when it comes to expenditure of public funds. Therefore, any exemption designed to withhold such expenditure must be “expressly textual,” i.e., stated expressly and unambiguously.
Wyo. Dept. of Transportation v. International Union of Operating Engineer’s Local Union 800, 908 P.2d 970 (1995)
QUESTION PRESENTED: Are the payroll records, including names and addresses of employees, submitted to the Department of Transportation available for public inspection?
FACTS/ARGUMENT: The Davis/Bacon Act requires a state report on employees working on federally-funded highway projects. One report includes names and addresses of employees. The Union sought the report in order to recruit members. The department argued the names and addresses should be redacted. Federal law said the reports could be released if the state public records act so allows.
The department argued that the names and addressed were “sociological data on individual persons” exempt pursuant to WS. §16-4-203(d)(i).
HOLDING: The Court examined dictionary definition of “sociological” and cases from other states and found that they did not consider names and addresses as sociological data. Instead, the phrase was “used in reference to language ability, extent of formal education, attendance at a segregated school, language ability of seasonal farm workers, and language ability of Spanish speaking individuals who enlist in the U.S. military.”
The Court found that “it suffices for us to conclude the phrase ‘sociological data,’ . . . does not authorize the WTD to withhold the disputed names and addresses.”
Sublette County Rural Health Care Dist v. Miley, 942 P.2d 1101 (1997)
QUESTION PRESENTED: Are financial records submitted by doctors leasing a clinic from the rural health district, a public entity, exempt from disclosure as a trade secret.
FACTS/ARGUMENT: A citizen questioned the contracts that the rural health district held with doctors governing the operation of a clinic owned by the district. The citizen wanted to see the financial information the doctors submitted to the district, detailing the income and expenses from the operation of the clinic. The doctors submitted affidavits that disclosing the information would cause them to withhold the information from the District and would put them at a competitive disadvantage with other doctors who did not have to publicly report such information.
W.S. §16-4-203(d)(v) allows a custodian to withhold: “Trade secrets, privileged information and confidential commercial, financial, geological or geophysical data furnished by or obtained from any person.”
HOLDING: The Court has adopted a test from the federal courts that allowed the custodians to withhold documents under W.S. §16-4-203(d)(v) if it is likely that either 1) to impair the government’s future ability to obtain necessary information (if it to be obtained voluntarily); or 2) to cause substantial harm to the competitive position of the persons providing the information. The Court held that the financial information may be withheld based on the doctors’ affidavits stating it would put them at a competitive disadvantage.
NOTE: This case may be ripe for a revisit after the U.S. Supreme Court overturned the test relied upon by the Wyoming Court. In Food Marketing Institute v. Argus Leader Media, the Court ruled that the Department of Agriculture could withhold the names of retail outlets participating in the food stamp program. The Court did away with the former requirement that the company requesting confidential treatment demonstrate it would suffer “substantial competitive harm,” which, it said, in practice, could be quite costly to prove up and, as a practical matter, required the company to prove harm based on the occurrence of a hypothetical event. Now, an entity seeking shelter under FOIA’s Exemption 4, need only show that (1) the commercial or financial information is customarily and actually treated as private by its owner; and (2) that the information was provided to the government under an assurance of privacy. The decision creates a far more accommodating framework for entities seeking to protect information as confidential.
Cheyenne Newspapers v. Allsop, 2002 WY 22
QUESTION PRESENTED: Was a report by a suicide expert on conditions in a county jail excluded from disclosure pursuant to the so-called investigative records exemption.
FACTS/ARGUMENTS: After attempted inmate suicides at the jail, the Laramie County sheriff decided to have an expert look at the jail’s suicide prevention protocols. The sheriff refused to release the report, calling it a roadmap to suicide and escape.
The district court had ordered the report released with one redaction where the report indicated there was a blind spot in the security camera coverage. The sheriff argued that the Public Records Act did not allow redaction and, if any portion of the report was confidential, then the entire report had to be withheld. He further argued that affidavits from the sheriff were the only evidence in the record and because they supported nondisclosure, the court had no basis to order disclosure.
HOLDING: The Court agreed with the district court and ordered the report released with the single redaction. It said redaction was a traditional remedy used by the courts and there was no indication the Legislature did not intend for the remedy to be pursuant to the Public Records Act.
The Court explained in a footnote that a liberal interpretation of the public records act means that the words “should receive a fair and reasonable construction” that favors openness and construes exemptions narrowly.
The Court also ruled that affidavits provided by the sheriff contained merely conclusory statements with little support and district court could discount them.
Shaeffer v. University of Wyoming, 2006 WY 99.
QUESTION PRESENTED: Was a tape recording made secretly by an employee and then used by the University of Wyoming in an internal investigation available to the public.
FACTS/ARGUMENTS: A University employee claimed that she was concerned about the gossip being shared during meetings of the University parking committee. She secretly recorded a committee meeting. The University obtained the tape as part of an internal, personnel investigation.
The University claimed that because the employee secretly made the tape without authorization, it was not “made” by the University. Therefore, it did not fit the definition of a public record in the Act that was in effect at the time. The definition included records made by or received by a governmental entity as part of the transaction of public business. W.S. §16-4-201(a)(v).
The University claimed that even if the record was a public record, two exemptions allowed the University to withhold it: 1) as part of an investigation into personnel policy violations pursuant to W.S.§16-4-203(d)(ix); and 2) release would do substantial injury to the public interest under the catch-all provision at W.S.§16-4-203(g).
The dispute arose as part of Shaeffer’s employment lawsuit against the University.
HOLDING: The Supreme Court overruled the District Court and declared that the tape recording was a public document. The Court reaffirmed that the Public Records Act must be given a liberal interpretation in favor of openness. “The remedial purpose of the public records act is to permit access to public records unless disclosure would inflict irreparable harm contrary to protected rights.”
The Court did not need to determine whether the recording was “made” by the University, because it ruled it was certainly received by the University. It supported its conclusion with the common meaning of “receive.” The word is defined in Webster’s II New College Dictionary 946 (3rd ed. 2005): “To acquire or take (something given, offered, or transmitted.” The Court found that the tape was received as part of the transaction of public business, i.e., the internal policy and criminal investigations conducted by the University. The investigations were part of the University’s business.
The Court held that the record could not be withheld pursuant to the exemption for records tied to an investigation of internal personnel policy/rules violations. The tape was not “compiled solely” for the purposes of the investigation, as required by the exemption, as it preexisted the investigation. (The Court found that “solely” was the equivalent of “exclusively.”).
The catchall provision requires that the custodian affirmatively request permission from the Court to withhold a document. The University had not done so. It could do upon remand, but there is no record of it doing so.
Freudenthal v . Cheyenne Newspapers, 2010 WY 80
QUESTION PRESENTED: Should the state recognize the “deliberative process privilege,” and withhold proposed budget reduction plans submitted to the governor by state agencies.
FACTS/ARGUMENT: The governor asked state agencies to submit plans for budget cuts. When the newspaper asked for the plans, the governor asserted the “deliberative process,” which protects communications regarding advice given to decision-makers prior to a decision and is part of the deliberations over the decision at hand. Facts are not covered. Neither is advice that is ultimately accepted by the decision-maker.
HOLDING: The Court held that the budget plans represented final agency decisions, and thus, were not covered by the privilege. Therefore, the Court declined to decide whether the state adopted the privilege in the public records contest.
NOTE: The Court did adopt the decision in Aland v. Mead, which is outlined later in this section.
Laramie County School Dist. One v. Cheyenne Newspapers, 2011 WY 55.
QUESTION PRESENTED: Were salaries of school district employees confidential under the Public Records Act?
FACTS/ARGUMENTS: The newspaper sought the salaries of school district employees. The school district pointed to public notice statutes that allow the school districts to publish salaries by employment category, without listing individuals. This showed, the District argued, that the Legislature intended the names and salaries be confidential and, therefore, they are not available under the Public Records Act.
HOLDING: The Court upheld the lower court’s decision that the sentence in the so-called personnel files exemption that information related to the “terms and conditions of employment” are explicitly available to the public. W.S. §16-4-203(d)(iii). The Court held that because the statute does not require the school districts to pay for and publish a legal notice listing the names and salaries, does not mean that a citizen cannot request the salaries of individuals from the districts under the Public Records Act. This included employment contracts and documents setting forth an individual’s salary. The Court said the district could provide a list of the individuals and their salaries in place of disclosing thousands of individual records.
The district could exempt people who could prove that their personal safety was endangered by disclosure of their names.
Powder River Basin Resource Council v. Oil and Gas Commission, 2014 WY 37
QUESTION PRESENTED: Were the chemicals used by oil companies and reported to Oil and Gas Commission in fracking exempt from disclosure as a trade secret.
FACTS/ARGUMENT: A non-profit landowner advocacy group sued to obtain the chemicals used in fracking from the oil and gas commission. The commission and oil company, Halliburton, argued that the chemical lists were trade secrets. The Powder River Basin Resource Council countered that the chemicals are known in the industry and revealing the chemicals would not reveal the formula used. Therefore, the chemical lists are not exempt pursuant to the exception for trade secrets.
W.S. § 16-4-203(d)(v) reads: The custodian shall deny the right of inspection of the following records, unless otherwise provided by law:
. . . (v) Trade secrets, privileged information and confidential commercial, financial, geological or geophysical data furnished by or obtained from any person[.]
The case was originally filed to contest the rule adopted by the Commission under the rule-making requirements of the Administrative Procedures Act. The lower court ruled against the Resource Council on that basis.
HOLDING: The Supreme Court reversed the lower court and said the matter should have been handled under the Public Records Act. It provided guidance to the lower court regarding the exemption for trade secrets:
A trade secret in the public records context is “a secret, commercially valuable plan, formula, process, or device that is used for the making, preparing, compounding, or processing of trade commodities and that can be said to be the end product of either innovation or substantial effort.” Anderson, 907 F.2d at 943-44 (quoting Public Citizen Health Research Group v. Food & Drug Admin., 704 F.2d 1280, 1288 (D.C. Cir. 1983)). This “definition requires that there be a ‘direct relationship’ between the trade secret and the productive process.” Id.
The Court explained, in the public records contest, “trade secret status is reserved for information involving ‘the productive process itself, as opposed to collateral matters of business confidentiality such as pricing and sales volume data, sources of supply and customer lists.’”
The Court could not decide prior to remand whether revealing the ingredients would reveal a company’s recipe. The lower court would have to listen to the experts on both sides and decide who was right on that issue.
NOTE: The parties settled the case and no hearing was held upon remand. Under the agreement, the Wyoming Oil and Gas Conservation Commission will be required to implement a review process that effectively makes it more difficult for a company to claim fracking chemicals are exempt from public information requests. The burden of proof will be on firms to show a chemical qualifies as a trade secret, a legal designation afforded to companies in order to protect valuable technology from competitors. And it requires firms resubmit applications for 128 chemicals, which had previously been granted trade-secret status by the state and challenged in court.
Aland v. Mead, 2014 WY 83.
QUESTION PRESENTED: Does the deliberative process privilege cover communications between the governor and state employees regarding his position on removal of federal protection for grizzlies, and should the privilege be adopted in Wyoming.
FACTS/ARGUMENT: A grizzly bear advocate sought communications between the governor and employees regarding a letter he sent to the Secretary of the Interior regarding the continued listing of the bears under the Endangered Species Act. The governor claimed deliberative process privilege, as the communications were prior to a decision on the contents of the letter and part of the deliberative process.
Aland argued against the adoption of the privilege in Wyoming as contrary to its policy of openness. He also argued that the letter was not developing policy but merely explaining the governor’s position. Explanations of policy decisions are not covered by the privilege.
HOLDING: The Court adopted the privilege in Wyoming in the public records context. The custodian must meet all prongs of the following test: 1) it is an interagency or intraagency communication, 2) the communication is pre-decisional and deliberative, and 3) disclosure is not in the public interest.
The Court cautioned that it “is a very narrowly-circumscribed privilege that can be invoked only with due care.” ¶38 [paragraph numbers used in the court’s decision].The deliberative process privilege applies to communications between executive officials, and not to members of the governing bodies like the trustees.¶20 (“The deliberative process privilege exempts from disclosure communications between executive officials that are both pre-decisional and deliberative.”) . The privilege only applies to advice “so candid or personal in nature that public disclosure is likely in the future to stifle honest and frank communication within the agency.” ¶42.
The Court said that the public interest prong will likely be satisfied if the privilege is otherwise found to apply, as the privilege was adopted because there is a public interest justifying the privilege in the first place. But that may not always be the case.
“In some instances, this public interest prong of the test is satisfied by weighing the public interest in allowing the free exchange of opinions within the executive branch against the public interest in being informed of the actions of public officials carrying out the business of the public. However, that may not be the result in every case, and the records custodian as well as the trial courts must carefully weigh the competing public interests, even after concluding the documents fall under the deliberative process privilege.”
The Court further held that while the state’s policy on grizzlies was generally established, there were still details to be decided. Therefore, the privilege applied in this case. The Court found that “our review of the documents reveals that the State continues to formulate its approach [to delisting the bears] in negotiating with the federal government and interacting with other states on wildlife policy issues. Where the withheld documents reflect this type of deliberation, and we find that the deliberation fits within the framework set forth above, . . . we have upheld application of the privilege. On the other hand, where a document does no more than communicate or explain set policy on a matter, or is virtually identical in substance to a final and released document, we will necessarily find that the privilege does not apply.”
Laramie County School Dist. One v. Cheyenne Newspapers, 2016 WY 113.
QUESTION PRESENTED: Could a custodian charge search and retrieval fees for the inspection and/or copying of public records primarily in electronic form.
FACTS/ARGUMENT: The school district charged the newspaper for not only making a copy of requested records but also the costs associated with searching for and retrieving the records to make it available to the newspaper. A section in the Public Records Act specifically dealt with electronic records. W.S. §16-4-202(d).
The newspaper argued that the section only allowed a custodian to charge search and retrieval fees when the requester wanted information compiled from within a database or several databases. At issue was subsection (d)(i) that says the “reasonable cost of producing a copy of the public record shall be borne by the party making the request.” The newspaper said the phrase “copy of the public record” meant that the custodian could only charge for cost of producing a copy, not the cost associated with searching for and retrieving the record.
HOLDING: In a 3-2 decision, the Court found when a custodian calls up a record on a computer screen for inspection, it is actually producing a copy of the record, not the original. In other words, one always produces a copy when calling up a record on a computer screen.
The Court also ruled that the sentence in W.S. §16-4-204(a) disallowing fees for inspection of records only applied to printed records. The sentence reads: “Nothing in this section shall be construed as authorizing a fee to be charged as a condition of making a public record available for inspection.” Therefore, a custodian may only charge for copying a printed record and not for searching for or retrieving the record.
The decision left open the question of what the reasonable costs would be. No court cases have examined that question since.
Wyoming Jet Center v. Jackson Hole Airport Board, 2019 WY 6.
QUESTION PRESENTED: Did the Legislature intend that the Special District Public Records and Meetings Act replace the Wyoming Public Records Act when a special district is involved.
FACTS/ARGUMENT: Wyoming Jet Center sought records regarding the decision by the airport board to operate as its own Fixed Base Operator, and to buy out the current FBO. The Legislature, in the face of difficulty locating and accessing public records in small governmental entities, adopted the Special District’s Act. The Act requires special districts that do not have regular office hours, to file certain documents with the county clerk:
(a) All special districts and other specified entities shall maintain a copy of the following documents, if the documents exist, provided that the Wyoming Public Records Act and all applicable federal statutes shall control the obligations of disclosure of those documents: adopted minutes of all meetings of the governing board and the governing board’s committees and subcommittees, records of meetings of the governing board and the governing board’s committees and subcommittees, audits, financial statements, election results, budgets, bylaws, rate schedules, policies and employment contracts with all administrators. When consistent with the requirements of this section, all special districts or other specified entities shall produce an original document upon request.
The airport board contended that the records designated in the Special Districts Act were all that were required to be produced by the board. Wyoming Jet Center countered that the Public Records Act cited special districts in its definition of the entities covered, and the board had to produce all records available to the public under the Act. It argued that the two acts could be harmonized. The Public Records Act dictates what records are available to the public if the entity has such records, while the Special Districts Act requires what records must be physically kept at the county clerk’s office so a person can physically inspect them.
HOLDING: The Court ruled: “The Special District Act is a limited purpose act that specifies certain documents of which its covered entities must maintain and make readily accessible to the public. It is not a substitute for and does not change the WPRA’s applicability.”
DISTRICT COURT CASES
O’Neal v. Town of Pavillion, Ninth Judicial District, Docket No. 29020 (June 3, 1997)
QUESTION PRESENTED: Did the failure of the town to publish a proposed ordinance in a newspaper of general circulation in the town render the ordinance null and void.
HOLDING: The town failed to comply with statute requiring at least one publication of the ordinance in a newspaper of general circulation within the town. The Riverton Ranger, though composed and printed in Riverton, was a newspaper of general circulation within Pavillion.
Wyoming Press Association v. Sheridan County Bounty, Fifth Judicial District, Docket No. 97-4-151, (November 5, 1998).
QUESTION PRESENTED: Did the various ways, other than charging for copies or for subscriptions, employed by a shopper in Sheridan County qualify it to run legal notices.
FACTS/ARGUMENT: The Sheridan Bounty, a shopper, contended it was a legal newspaper because it either purchased subscriptions for customers, offered a subscription with the purchase of a radio advertisement or gave gift subscriptions to meet the 500 paid circulation threshold required by W.S. 18-3-519, which reads:
(a) The publication of any legal notice, printing or advertising required by law is without force or effect unless published in a newspaper which has been regularly issued at least once each week for a period of fifty‑two (52) consecutive weeks prior to the date of the first publication of the notice or advertisement, has a paid circulation of at least five hundred (500) and each page is not less than ten (10) inches by twelve and one‑half (12.5) inches in size.
(b) The provisions of this section shall not apply in counties where no newspaper has been regularly issued for fifty‑two (52) consecutive weeks, where there is only one (1) newspaper in the county, or in any county where no newspaper meets the requirements of this section.
The Bounty argued that it paid for the circulation of the shopper by paying the Post Office to distribute it free to Sheridan County residents. The WPA/Sheridan Press contended that these alternate ways of awarding subscriptions did not meet the meaning of “paid circulation” as intended in the statute. The challengers pointed to the Wyoming Supreme Court in Pirie v. Kamps that the purpose of requiring paid circulation was to assure that the publication had the longevity and acceptance in the community.
HOLDING: The Bounty was attempting to run around the statute and its alternate ways of awarding subscriptions was not “paid circulation,” including paying the Post Office to distribute it.
Pinedale Roundup v. Sublette County Commissioners, Ninth Judicial District, Docket No. 8383 (July 8, 2016)
QUESTION PRESENTED: Was the one-cent charged for a shopper in Sublette County qualify the shopper to publish legal notices.
FACTS ARGUMENTS: The Sublette County Commissioners persuaded the owner of a local shopper, the Sublette Trader, to charge one cent for a copy so they could remove the public notices from the Pinedale Roundup and place them in the shopper at a significantly reduced price. People could take a copy from the various distribution points around Pinedale without paying the penny. It was optional.
The newspaper argued that the one-cent charge was optional and a dodge to get around the paid circulation requirement in W.S. 18-3-519. The Commissioners were angry at the coverage of the newspaper and that was the real reason the Commissioners persuaded the shopper to charge the penny. Previously, the commissioners had switched from the Roundup to the Sublette Examiner, which were then under separate ownership, because they were upset with the coverage of the Roundup. They had then questioned why the commissioners should pay the newspaper to attack them. The commissioners had expressed upset with the newspaper’s coverage before the switch to the shopper in comments to the editor and in a taped conversation among the county clerk, county sheriff and a county commissioner.
Prior to the switch, the commissioners had requested proposals to run the county’s legals for the next fiscal year in exchange for a set rate for that year. The newspaper argued that it and the county had, thus, entered into a contract.
HOLDING: The Court agreed that the one-cent charge was a ruse, and the shopper did not qualify. It also found that the Traderwas not a newspaper as contemplated by Wyoming statutes. It also agreed that a contract was formed between the county and the Roundup, and the switch breached the contract. It left damages to a separate hearing.
NOTE: The county and Roundup entered into a settlement agreement as to the damages owed. The Roundup agreed to run all the legals that had run in the shopper that were not outdated in the spirit of keeping the public informed.
SUPREME COURT SUMMARIES
In re Gillette Daily Journal, 11 P.2d 265 (1932)
QUESTION PRESENTED: Was the requirement that a newspaper be published for 52 consecutive weeks for it to qualify to publish legal notices constitutional.
HOLDING: The Legislature has the power to provide that “legal notices shall be published in papers established sufficiently long so as to give reasonable assurance of reaching the people for whom they are intended.”
Pirie v. Kamps, 229 P.2d 927 (1951)
QUESTION PRESENTED: Is the requirement that a newspaper be of a certain size to qualify to publish legal notices.
FACTS/ARGUMENTS: The plaintiff challenged the validity of a notice of an action to quiet title in real estate published in a tabloid newspaper that did not meet the size requirements of state statute.
HOLDING: The Court found that a newspaper of general circulation “is a matter of substance and not of size. The Legislature could prohibit a newspaper so small that it is unlikely to be read by the general public, but a tabloid newspaper is not of such a small size.
Record-Times v. Wheatland, 650 P. 2d 297 (1982)
QUESTION PRESENTED: Was the Town of Wheatland required by state statute to publish the names and salaries of its employees.
FACTS/ARGUMENTS: The town sought to permanently enjoin the newspaper from publishing the names and salaries of employees. The newspaper counterclaimed that state statute required the town to publish the names and salaries. The town withdrew its complaint, and the lower court denied the counterclaim.
HOLDING: The Court reversed the lower court and required the town to publish the names and salaries as a legal notice as set forth in statute. The purpose of the statute was to insure that “the business of each municipality in Wyoming would be subject to public scrutiny with respect to the expenditure of funds for all acquired debts.”
NOTE: The public notice statute has changed as to not require publication of names. Instead, categories are listed. Salaries are still public record.
The Court took “judicial notice” that tabloid newspapers are common and “are ordinarily read generally, if sufficiently established for a length of time, so as to gain a general circulation.” The requirement that the newspaper be published for 52 consecutive weeks with a paid circulation of at least 500 were not challenged.
Therefore, a tabloid newspaper met the “aim of the statute” that the notices be “made in a newspaper which is of general circulation in its community, so as to be generally read and so that the contents of the notice may be brought home to the public generally.”
DISTRICT COURT SUMMARIES
Casper Star-Tribune v. Circuit Court of Seventh Judicial District, Docket No. 89660 (2009)
QUESTION PRESENTED: Do state statutes regarding sexual assaults require that the files of child endangerment cases be closed.
FACTS/ARGUMENT: A newspaper reporter attends a session of the Circuit Court in Casper and hears about a child endangerment case. No name is given for the defendant who appears at the hearing. When the reporter asks who the defendant was, he was told that the case file was closed and he could not even acknowledge what he had just witnessed in open court. The clerk indicated that all child endangerment cases were closed.
The newspaper appealed the blanket closure of the child endangerment cases. The Court argued that W.S. 6-4-403(f)&(g) required the closure. The subsections read:
(f) Prior to the filing of an information or indictment charging a violation of W.S. 6-4-403(b)(ii), (iii) or (vi)(D), neither the name of the person accused or the victim nor any other information reasonably likely to disclose the identity of the victim shall be released or negligently allowed to be released to the public by any public employee, except as authorized by the judge with jurisdiction over the criminal charges. The name of the person accused may be released to the public to aid or facilitate an arrest.
(g) After the filing of an information or indictment and absent a request to release the identity of a minor victim by the victim or another acting on behalf of a minor victim, the trial court shall restrict the disclosure or publication of information reasonably likely to identify the minor victim.
HOLDING: “The provisions of W.S. 6-4-403(f)&(g) prohibiting disclosure of the name of the minor victim and information reasonably likely to identify the minor applies only to child endangerment charges of a sexual nature, those specifically brought pursuant to W.S. 6-4-403(b)(ii),(iii) or (v)(D) or (E), and not to child endangerment charges brought pursuant to other subsections of W.S. 6-4-403.
That the blanket, unwritten policy of withholding the entire files in child endangerment cases, and the failure to list those cases on the court docket, are contrary to the Wyoming Public Records Act and Wyoming case law. See Williams v. Stafford, 589 P.2d 322 (Wyo. 1979).”
NOTE: The Wyoming Supreme Court in Circuit Court of the Eighth Judicial District v. Lee Newspapers, 2014 WY 101, ruled provisions such as the one involved in this case do not allow a court to seal an entire file or court hearing, only that they redact names and any information that would identify the person to the general public.
Intervention in State v. Campbell, Seventh Judicial District, Docket No. 18730 (2011)
QUESTION PRESENTED: Should the name of a deceased minor victim be released to the public.
FACTS/ARGUMENT: The name of a deceased minor victim in a case was sealed in the Court record in Casper. The Star-Tribune moved to have name unsealed.
While Rule 1 of Wyoming Rules Governing Redactions from Court Record requires that juvenile witness names be redacted but allows the Court to order otherwise.
HOLDING: The Court ruled that the purpose of the rule was to protect minors from unnecessary publicity. The intent of the rule cannot be served by redaction as the minor is deceased.
Cheyenne Newspapers v. First Judicial District Court, In re: Court Pretrial Order (2014)
QUESTION PRESENTED: The Court issued an order in a murder trial in Cheyenne that included restrictions on newsgathering. The newspaper asked the Court to modify its Order in several respects.
FACTS/ARGUMENT: The newspaper requests, in addition to the media room adjacent to the courtroom allowed in the Order, that it be allowed to interview witnesses on the first floor of the courthouse or in client consultation rooms or other private rooms on the third floor, and that it be allowed to interview participating counsel on the first, second and third floors of the courthouse. Further, the newspaper requests that it be allowed to photograph trial participants on the first floor of the courthouse, where county offices not related to the courts are located.
Further, the newspaper requested that the prohibition against publication of witness names in advance of their testimony be withdrawn, as it violates First Amendment rights. While judges have the right to control their courtrooms, this right must adhere to the First Amendment. Courts have said that judges may act to protect the defendant’s fair trial rights and to protect against Adisruption or distraction of judicial proceedings, the decorum of the court, but that authority is not unfettered. One appellate court put it this way: “[I]n order to avoid a conflict between individual rights and the pursuit of valid governmental goals, restrictions on otherwise protected conduct must be drawn as narrowly as possible to conform to the ‘letter and spirit’ of the First Amendment.”
Further, Rule 53(9) of the Wyoming Rules of Criminal Procedure states that the Apresiding judge may for cause prohibit photographing, radio or television broadcast of a participant in a court proceeding on the judge’s own motion or on the request of a participant in a court proceeding. [italics added]. Requests by victims of crime, confidential informants, and undercover agents are presumed to be valid. Therefore, a court must articulate the cause necessary to prohibit photographing of trial participants. The cause must be related to the specific case and not the general considerations against photographs that might apply to most or every case.
HOLDING: The Court modified its order to allow for interviews and not to prohibit publication of witness names in advance.
APG Media v. First Judicial Circuit Court, Docket No. 188-551 (Sept. 20, 2017) (Intervention in State v. Barrett, Circuit Court for First Judicial District, Docket No. CR-2017-1523.
QUESTION PRESENTED: Could the circuit court close a preliminary hearing in a child abuse case in which the child died and sexual abuse was alleged.
FACTS/ARGUMENT: Defense moved to close the hearing in a case where a man was accused of abuse, including sexual, of a child that died. The motion to close the hearing was itself sealed. The Circuit Court granted the motion on the basis that hearsay would be heard at the hearing and that a murder charge was involved.
Wyoming Tribune Eagle objected and appealed the closure to the district court, stating that reasons specific to the case, not generalized reasons, are necessary in order to close a case. The factual basis for the ruling, as required by Williams v. Stafford, 1979 WY 1, was missing from the ruling. Hearsay is heard in all preliminary hearings, so that does not provide reasons specific to the case. If the defense was correct, then all preliminary hearings would be closed. Further, if a murder charge is enough, then all preliminary hearings in murder cases, arguably where the public interest is the greatest, would be closed.
District Court Judge Catherine Rogers agreed that those reasons were insufficient, but gave the circuit court an opportunity to come up with other reasons if it chose to do so.
The Circuit Court brought in a different judge to hear a renewed motion by the defense to close the hearing. This time the Court closed the hearing based on three justifications: 1) hearsay would be admissible in the preliminary hearing but not the trial; 2) social media created a greater potential for inflammatory pretrial publicity; and 3) the sexual assault statute that states the identities of the accused and the victim shall be confidential.
The newspaper appealed to the District Court again, arguing that the Wyoming Supreme Court decision in Lee Newspapers v. Circuit Court for the Eighth Judicial District, 2014 WY 101 prohibited closure of the preliminary hearing based on W.S. § 6-2-319, hearsay is allowed in every preliminary hearing and social media was not a reason to close the hearing.
HOLDING: District Court Judge Steven Sharpe ruled that the Eighth Judicial District case and the hearing could not be closed. Further, the circuit court had failed to provide specific reasons with a factual basis for its closure as required by case law.
The judge ruled hearsay being read by potential trial jurors is “a potential issue. . . in every criminal case.” “The First Amendment cannot be overcome by conclusory assertions that publicity might deprive the defendant” of his right to a fair trial. The questioning of potential jurors about what they knew about the case and whether they could decide the case only on what they hear in the courtroom is the proper remedy for blocking the influence of prior publicity about a case.
The judge found that the defendant was relying on speculation in his argument that social media would hinder his fair trial rights. Any jurors who have commented on social media can be questioned about it prior to being selected. “This district has had its fair share of high profile cases. The Court notes that, in those cases, [questioning of jurors called voir dire] was a sufficient tool to remove biased jurors.”
Finally, the judge cited the Lee Newspapers decision that the statute requiring the identities of the accused and alleged victim be kept confidential at the circuit court stage does not justify closing off an entire hearing.
Intervention in State v. Harnetty, Seventh Judicial District, Docket No. 20726-B (Oct. 9, 2017)
QUESTION PRESENTED: Should newspaper be allowed access to a motion to close a pretrial proceeding regarding the admissibility of so-called “bad character” evidence and to appear by telephone in a hearing on the closure.
HOLDING: Court granted access to the closure motion (though not the underlying motions on the evidence) and the right of the newspaper to be represented at the closure hearing. The Court ultimately denied the closure request prior to the pretrial proceeding and the public and media were allowed to stay.
SUPREME COURT SUMMARIES
Williams v. Stafford, 589 P.2d 322 (1979)
QUESTION PRESENTED: Should records of a closed bail hearing be released to the public.
FACTS/ARGUMENT: In the famous case of Ed Cantrell accused of killing an undercover drug agent, the Circuit Court closed a bond hearing. KTWO News then petitioned the district court to require records of the bond hearing be released.
The Circuit Court argued that the closure was necessary to protect the fair-trial rights of the Defendant.
HOLDING: The Supreme Court denied the relief on the basis that the writ of prohibition was not the proper method for challenging the closure, but took advantage of the issues presented to establish standards for future court closures. It did provide that the record of the bail hearing be made available following the completion of the trial.
The Court ruled that closure of court proceedings “should be limited only to exceptional circumstances.”
“The reason for requiring all court proceedings to be open, except where extraordinary reasons for closure are present, is to enhance the public trust and confidence in the judicial process, and to insulate the process against attempts to use the courts as tools for persecution.”
Proceedings and records may be closed to the public if disclosure “would create a clear and present danger to the fairness of the trial,” and the “prejudicial effect . . . cannot be avoided by any reasonable alternative means.”
In addition, the Court said that a hearing on a closure could be closed itself. The Court shall keep a record of the closure proceeding, “and the factual basis for the determination upon which closure is predicated shall be made apparent” in that record. If a decision is made not to close a hearing, then the record shall be made available to the public. If not, then the appellate court can examine the record to determine if closure met the appropriate standards. The problem in this case is that the lower court did not put its determination on record so the Supreme Court had nothing to go on in this case.
Circuit Court of the Eighth Judicial Dist. v. Lee Newspapers et al., 2014 WY 101
QUESTION PRESENTED: Does W.S. §6-2-319(a) allow a court to close an entire case file and court proceedings in sexual assault cases.
FACTS/ARGUMENT: A man in Wheatland took a baby from his home and was charged with sexually assaulting the baby. Newspapers heard about the case and attempted to access the court file. When the attorney for a coalition of newspapers sought to obtain the docket number for the case, the clerk’s office said it could not even confirm the existence of the case.
The newspapers moved to have the preliminary hearing open to the public, but the case was bound over to district court before the motion could be heard. The newspapers then filed a petition asking the district court to declare that the case file and proceedings should not have been closed. The Circuit Court argued that W.S. §6-2-319(a) mandated the closures.
The statute reads:
a) Prior to the filing of an information or indictment in district court charging a violation of an offense under this article, neither the names of the alleged actor or the victim of the charged offense nor any other information reasonably likely to disclose the identity of the victim shall be released or negligently allowed to be released to the public by any public employee except as authorized by the judge with jurisdiction over the criminal charges. The actor's name may be released to the public to aid or facilitate an arrest.
(b) After the filing of an information or indictment in district court and absent a request to release the identity of a minor victim by the minor or another acting on behalf of a minor victim, the trial court shall, to the extent necessary to protect the welfare of the minor victim, restrict the disclosure of the name of the minor victim, unless the name has been publicly disclosed by the parent or legal guardian of the minor or by law enforcement in an effort to find the victim. The trial court may, to the extent necessary to protect the welfare of the minor victim, restrict disclosure of the information reasonably likely to identify the minor victim.
The District Court agreed with the newspapers, and the Circuit Court appealed. While the U.S. Supreme Court had ruled that there was a constitutional right of access to court proceedings, it has not yet ruled on the right to access to court records.
HOLDING: The Court first took care of a preliminary issue. The lower court argued that transcripts of the preliminary hearing are available. Therefore, the case is moot. The Court disagreed, stating even if the transcripts are available the Court will still hear cases that (1) the issue is one of great public importance; (2) we have deemed it necessary to provide guidance to state agencies and lower courts; or (3) the “controversy is capable of repetition yet evading review.”
The Court ruled it could either hear the case under all three factors, given its importance, the need for uniformity in how the courts handle these cases, and the controversy could continue yet evade review because of the short time between the filing of charges and the preliminary hearing.
On the merits, the court found that there is a constitutional right of access to court records, with some exceptions.
In Globe Newspaper Co. v. Superior Court of Norfolk County, the United States Supreme Court noted that open criminal trials provide “a check on the judicial process—an essential component in our structure of self-government.” 457 U.S. at 606, 102 S.Ct. at 2620. Specifically, the press plays a vital role in disseminating information to the general public concerning the judiciary and what occurs in its domain. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491–92, 95 S.Ct. 1029, 1044–45, 43 L.Ed.2d 328 (1975). “[T]he press serves to guarantee the fairness of trials and to bring to bear the beneficial effects of public scrutiny upon the administration of justice.” Id.; see also Richmond Newspapers, 448 U.S. at 572–73, 100 S.Ct. at 2825, (“Instead of acquiring information about trials by firsthand observation or by word of mouth from those who attended, people now acquire it chiefly through the print and electronic media. In this sense, this validates the media claim of functioning as surrogates for the public.”). Public access to judicial documents serves to broaden the dissemination of information thereby allowing the general public to guard against malfeasance in our criminal justice system. Antar, 38 F.3d at 1359. The public provides a significant and positive influence when judicial documents remain open. Press–Enterprise II, 478 U.S. at 8, 106 S.Ct. at 2740. Because, as a general matter, criminal judicial documents meet the experience and logic test, a First Amendment right of access attaches to such documents. Id.
The Court found that redaction of the names in the court records and the use of initials could satisfy the confidentiality set forth in the statute.
Cheyenne Newspapers v. First Judicial District Court, 2015 WY 113.
QUESTION PRESENTED: Could the District Court order media organizations not to publish the names of minor witnesses testifying in open court in a murder trial.
FACTS/ARGUMENT: Teenagers met to fight in a park in Cheyenne. One brought a gun and shot and killed another teenager. He was charged with murder in State v. Sam, Docket No. 32-316.
The Court issued an order prohibiting media from publishing the names of minor victims revealed in open court because they were minors and had received death threats.
The Wyoming Tribune-Eagle filed a Petition for Review with the Wyoming Supreme Court, arguing that if the witnesses were getting death threats then their names were already known to those making the threats. Other remedies were available – finding and prosecuting the offenders and/or giving protection to the witnesses.
The newspaper also argued that the media may not be prohibited or punished for publicizing what it observes in the courtroom. Craig v. Harney, 331 U.S. 367, 374 (1947) (journalists were charged with criminal contempt for “falsely representing” what happened in a courtroom.) The U.S. Supreme Court said in Harney:
A trial is a public event. What transpires in the court room is public property. * * * Those who see and hear what transpired can report it with impunity. There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it.
HOLDING: The Supreme Court granted expedited review because the trial was about to start and then reversed the trial court’s order as an illegal prior restraint of free speech.
The order clashed with “two basic protections that the First Amendment” guarantees: The “right against prior restraints on speech and the right to report freely on events that transpire in open courtroom.” Prior restraints, which forbid certain communications in advance, “are the most serious and the least tolerable infringement on First Amendment rights.”
The Court quoted the U.S. Supreme Court in Nebraska Press Ass’n v. Stuart 427 U.S. 539, 560 (1976):
A responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field. Its function in this regard is documented by an impressive record of service over several centuries. The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism.
Once a public hearing had been held, what transpired there could not be subject to prior restraint.
The Court quoted a second U.S. Supreme Court case, Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975): “Once true information is disclosed in public court documents open to public inspection, the press cannot be sanctioned for publishing it. In this instance as in others reliance must rest upon the judgment of those who decide what to publish or broadcast.”
And a third case, Craig v. Harney, 331 U.S. 367, 374 (1947): “Those who see and hear what transpired [in the courtroom] can report it with impunity.”
The lower court, in order to justify the gag order, must consider: 1) the nature and extent of the news coverage; 2) whether measures other than a prior restraint would likely mitigate the effects of unrestricted publicity of the juvenile’s names; and 3) the likely effectiveness of a prior restraint to prevent the threatened danger.
The Supreme Court said the lower court failed to undertake this analysis, but even if it had, the analysis would have resulted in the withdrawal of the gag order. The Court found that the second and third factors weigh against prior restraint, and the first factor must take on lesser weight given our analysis of factor three.
The Court ruled that the witness names were known so prior restraint would not be effective. It said factor one is more in play when the defendant’s right to a fair trial is in play, which it was not in this case. In regard to the second factor, other protective measures were available, such as prosecuting those making the threats and having law enforcement protection.
The requirements for newspapers to publish legal notices are essentially the same as when first adopted in 1897, shortly after Wyoming became a state. Session Laws, Chapter 73 (a copy is attached).