Northwest Arkansas Democrat-Gazette suing to get Duggar 911 call, judge's letters

FAYETTEVILLE -- The Northwest Arkansas Democrat-Gazette sued Springdale on Thursday to force the release of a 911 call from the Jim Bob Duggar residence in May and two letters to the city attorney from a juvenile court judge.

"Access to public documents is vital to keeping citizens fully aware of how their government works. Something has changed in the city of Springdale's approach to releasing these records," said Rusty Turner, editor of the newspaper.

"It's important to find out why and whether it will be an impediment to the release of other public documents in the future. It's clear to us that the records we requested should be disclosed. It's too bad that litigation will be required to accomplish that," he said.

The lawsuit, filed in Washington County Circuit Court, came after Springdale officials again in mid-August refused to release the 911 documents requested by the newspaper. The city also refused a new request for the correspondence between Circuit Judge Stacey Zimmerman and Ernest Cate, Springdale city attorney.

"Today, the paper filed a lawsuit to appeal the City of Springdale's denial of Freedom of Information Act requests for public records," said Brandon Cate, an attorney for the newspaper. "We seek these records so that the public may continue to monitor the performance of its public officials, as is the goal of the FOIA. We look forward to our day in court on these important issues."

The city was served with the lawsuit Thursday morning, according to Tom Keiklak, an attorney representing Springdale.

"The city regrets that it finds itself in a clash between two very compelling public interests: the commitment to open and transparent government, and the confidentially afforded to certain proceedings," Kieklak said in an email.

"Throughout this entire process, the city has expended great effort and strived to find the balance between these two powerful interests, in order to fulfill its duty to the public. While the city and its officials regret having to be involved in litigation, we appreciate the role the court serves in these matters and look forward to the court's decision."

The case has been assigned to Circuit Judge Doug Martin, and the newspaper requested a hearing be held within seven days, as outlined in the Arkansas Freedom of Information Act.

The newspaper and reporter Doug Thompson renewed the request for the 911 recording after Zimmerman said during an Aug. 18 hearing the recording isn't exempted from public release by any court order she has issued. She declined to offer an advisory opinion, sought by Springdale, on whether the recording is exempt under other FOIA. The advisory opinion was requested by the city after it denied the paper's initial FOIA request in June.

"With respect to your FOIA request regarding a 911 call of May 27, 2015, we are concerned with the potential effect or application of a supplemental court order that the city of Springdale became aware of only after the filing of a complaint by a citizen," according to a June 10 response.

"This complaint was received after the initial release of the 911 audio pursuant to an earlier FOIA request. We are in the process of evaluating the appropriate action," the city said in June.

The 911 recording already been released to the public. The newspaper filed a Freedom of Information Act request for it on June 10, but a copy of the call already been obtained by In Touch magazine of Englewood Cliffs, N.J., through an earlier Freedom of Information Act request.

In Touch's account of the recording said the caller identified himself as a Washington County case worker for the state Department of Human Services. He was quoted as giving the Duggars' address and saying: "We have an investigation, and I guess they're not being cooperative. We have to see the child to make sure the child is all right. So we just need police assistance."

The city contends the records may still be exempt from FOIA disclosure based on a state law related to investigations by the Department of Human Services and Arkansas State Police that involve the welfare of children.

The newspaper argues the city has "already rung the proverbial bell" by previously releasing the information to the magazine and, further, the recording wasn't created, collected or compiled on behalf of DHS or the state police but, instead, as part of the city's administrative function of providing 911 services to the public.

"A statutory provision for nondisclosure must be specific, and there is nothing in the statute that specifically provides that the city of Springdale's 911 records are exempt from disclosure," according to the lawsuit.

The letters from Zimmerman to Ernest Cate represent a newer front in the fight.

"Judge Zimmerman mentioned a seven-page letter to Ernie Cate," according to Thompson's FOIA request. "I'd like to see any correspondence she's had with the city regarding my FOI request or the (redacted) case."

The letters addressed the release of a certain police report and inquired as to the city's policy on the release of police reports in the future, according to one of the city's responses to Thompson's FOIA requests.

The city acknowledged it had the letters, but declined to release them, saying they appear to relate to a 2007 juvenile case involving the Duggars and are covered by a previous Zimmerman order. The letters were sent May 27 and June 11 and specifically referenced the Duggar juvenile case by case number, according to the city's response to the newspaper.

"While it is unclear if these letters are part of the record in Case No. J2007-38, because of the references contained therein, we must assume so," according to a letter from Susan Kendall, an attorney for the city. "As such the letters are exempt from disclosure under the FOIA."

The newspaper contends the letters aren't juvenile court records and should be subject to release.

The letters were sent from Zimmerman to Springdale at a time when the city wasn't a party to the juvenile court action involving the Duggars, according to the lawsuit.

"Even if the letters were confidential juvenile court records at some point in time, they ceased to be confidential when they were sent to a nonparty to the juvenile action," according to the lawsuit.

The Duggars were stars of the now-canceled 19 Kids and Counting television show. The TLC cable network canceled the show after learning the oldest child, Josh Duggar, fondled four of his sisters and a babysitter when he was a teen.

Josh Duggar resigned his position as a lobbyist with the conservative Family Research Council after the admissions. More recently, he admitted being unfaithful to his wife and entered a rehab program after it was revealed he had accounts with an infidelity website that was hacked.

NW News on 09/04/2015

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