EMS allegations fuel debate over open records

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EMS allegations fuel debate over open records

By KYLE PETERSON kpeterson@beaufortgazette.com 843-706-8147
Published Saturday, June 11, 2011   |  1270 Words  |  

Beaufort attorney Robert Achurch moved quickly last month when he learned The Island Packet and The Beaufort Gazette were about to run a story detailing two Beaufort County paramedics' alleged on-the-job disciplinary problems.

The next day, Achurch asked a judge to block the story's publication, according to court documents. He argued it would be unfair to the paramedics, who are accused of mishandling a 2008 ambulance call involving a Bluffton man who was brutally beaten in his backyard.

Circuit Judge Carmen Mullen refused to stop the story, according to the documents. But six days later, Achurch was back with another request: He asked the judge to bring in the people he believed disclosed the information from the paramedics' personnel files -- attorney Joel Bailey of Beaufort, and Bailey's clients, Brian and Tracy Lanese -- and find them in contempt of court for "clear, plain and intentional violations" of confidentiality.

Mullen agreed to consider the request for contempt citations during a hearing at 1 p.m. Tuesday.

It was the latest surprising turn in case that began in October 2009, when the Laneses filed suit against the county's EMS department. A flurry of legal paperwork has flown back and forth since then -- raising questions not only about the treatment Lanese received, but also about the county's adherence to state laws requiring government openness.

Jay Bender, an attorney for the S.C. Press Association, reviewed recent filings in the case and said they suggest misunderstandings of the state's Freedom of Information Act.

"There are a bunch of very confused people involved in this litigation, its seems to me," Bender said.

PROTECTIVE ORDER

State law requires most government activity be open to the public and makes courts among the most accessible. But a lid went on the Lanese case about eight months after it began. The lawyers agreed to a "protective order," signed by Judge Mullen in July 2010. The order forbids disclosing information from the paramedics' personnel files and the Laneses' medical records to anyone other than a "qualified person" -- the lawyers, their clients, court personnel and others directly involved the case.

Further, if such information comes up during court sessions, the order requires that no one except qualified persons can be present to hear it, and transcripts containing protected information will be sealed.

The protective order runs counter to established rules for open courts, according to Bender, the media lawyer. Before documents can be sealed or proceedings closed, a formal process, including an open hearing, is required, he said.

"There was no motion heard on that matter, and that's inconsistent with what the court rules require," he said.

Neither Achurch nor Bailey returned phone calls last week to discuss the protective order or other aspects of the case.

Tuesday's hearing might answer questions about whether the case will proceed openly or under cover of the protective order.

PRIOR RESTRAINT

In preparing for trial, Bailey obtained personnel records showing multiple instances of disciplinary action against the two paramedics, according to court documents. For example, one of them, Jeffrey Knieling, allegedly took pictures of a naked female patient and downloaded them onto his home computer, according to the documents.

Bailey filed an amended lawsuit May 11 that included these new details.

A reporter for The Packet and The Gazette who checked the Lanese case found the revised lawsuit and called Achurch on May 19, seeking comment. The next day Achurch sought the restraining order to stop the newspaper from publishing the story.

He argued the story would embarrass the paramedics and bias potential jurors when the Lanese case goes to trial.

Blocking publication -- sometimes called "prior restraint" -- is an extreme step for judges, Bender said. Sometimes it's not even enough to argue that national security could be compromised. Keeping paramedics' personnel files secret doesn't come close to meeting the standard, he said.

"I think the lawyers demonstrated a complete lack of understanding of the First Amendment by even asking for such an order," he said. "When I read that, I said, 'Obviously these folks slept through their constitutional law class.' "

The newspapers were was not notified of the attempt to stop publication. Nor did Achurch file his request with the clerk of court. As far as court records are concerned, it never happened.

CONTEMPT OF COURT?

Four days after the newspaper's story ran May 22, Achurch asked that Bailey and the Laneses be held in contempt. By revealing allegations from the paramedics' personnel records, Achurch contends, they violated the protective order guaranteeing confidentiality.

Bailey's response argues that he warned the new lawsuit could bring media coverage, but he states he was verbally directed by the judge to file it with the court anyway.

He also protests twice about "improper ex parte communication" between Judge Mullen and Achurch. The term means that one side has been excluded from participating in a proceeding. Rules governing judges and lawyers frown on ex parte communications.

Achurch and Mullen communicated one-on-one on May 20, when he asked the judge to stop the newspapers from publishing the story, and again on May 26, when he requested that Bailey and the Laneses be held in contempt, according to Bailey's response.

Bailey wrote that such communications were "in violation of the Rules of Professional Responsibility and the Canons of Judicial Ethics."

COUNTY OPENNESS

Has Beaufort County been forthright with information surrounding the Brian Lanese case?

In his revised lawsuit, Bailey emphatically answers no. He argues that a former EMS official tried to steer a state investigation of how paramedics treated Brain Lanese by altering documents and withholding information.

Weeks after the attack, when reporters asked the county for records on previous disciplinary action against the paramedics, a county attorney responded that none existed.

The county also denied Freedom of Information requests for other EMS records, such as ambulance response times, until the legislature changed state law last year specifically to make them available.

County officials say they can't talk about specifics of the case.

Staff attorney Lad Howell said he has not been involved in the litigation because the county has a policy with the state Insurance Reserve Fund, which defends it in such lawsuits.

Any direction to Achurch would have come from the Reserve Fund, not county officials, Howell said.

But Howell did express concern that public knowledge of the case could bias potential jurors.

"I'm at a loss to understand why you all think that the information should be open to the public in an active litigation trial," Howell said.

Bender said state law makes clear that county employees' disciplinary records are public. He pointed to a 2004 case in which the York County Sheriff's Department was ordered to release disciplinary information about deputies suspended for misconduct. The Sheriff's Department protested that releasing records would be an invasion of privacy. However, a state appeals court said the public's right to know how officers conducted themselves outweighed privacy concerns.

But Howell argued the newspaper's coverage of allegations against the paramedics amounts to "a strong proactive position on behalf of the plaintiffs."

"You printed everything in (Bailey's) amended complaint as if it were fact," he said.