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Gainesville says judge should decide open records lawsuit

POSTED: June 23, 2009 11:15 p.m.

Lawyers for the city of Gainesville want a lawsuit filed against the city by The Times to be decided without a trial.

The lawsuit filed by the newspaper in March questions whether the city violated the state’s Open Records Law when it refused to release information tied to an investigation of former City Manager Bryan Shuler.

The city claims it legally kept private the names of city employees who were named in an anonymous letter that accused Shuler of sexual harassment.

The letter resulted in an investigation and the subsequent resignation of Shuler.

When Shuler resigned in November, The Times requested a copy of the letter alleging his misconduct. The city released the letter, but refused to release an unedited version of it that included the names of two employees whom the letter alleged had been harassed and another employee unrelated to the accusation.

In defending the stance that the names legally can be removed the letter, the city cited an exemption to the state’s Open Records Act that allows governments to withhold "medical or veterinary records and similar files, the disclosure of which would be an invasion of personal privacy."

On June 16, the city’s lawyers asked Judge Bonnie Chessher Oliver to make a summary judgment in the city’s favor. The motion asks Oliver to rule from the bench, based on both parties’ written or oral arguments, without a trial. The city’s attorneys, Sam Harben Jr. and James E. "Bubba" Palmour, claim that the city was acting on behalf of the city’s "anti-sexual harassment policy" that encourages employees to report sexual harassment and protects "the privacy rights of employees" when it removed the names from the letter.

"...If individuals who may be victims believe that their names will be published in print, they will be reluctant either to report or confirm
sexual harassment," the city’s motion states.

During the months before the newspaper filed suit, the city’s attorneys offered to release an unedited version of the letter to The Times with the stipulation that the newspaper not print the names without permission of those mentioned.

Attorneys for the newspaper, however, said the city government had no role in deciding what should and should not be published in The Times, according to documents also filed on June 16 by The Times’ attorneys.

"Upon obtaining the unredacted letter from the City, the newspaper may or may not determine that it is newsworthy to publish the names of the two unidentified persons," an argument filed June 16 by The Times’ attorneys states. "However, as the Supreme Court has made clear, that is a decision that rests with the press, and not with would be government overseers."

Attorneys for The Times, Steve Gilliam of Gainesville and David Hudson of Augusta, argue that the complete letter is an open record. They argue that the unedited letter could serve public interests.

"The newspaper can inquire whether and to what extent the City heard their side of the alleged episodes in deciding what action to take with the City Manager," the argument states. "... Also, having access to the unnamed individuals will allow a more complete understanding of the facts upon which the City made its decisions regarding Shuler, and the public can accordingly make a more informed judgment about the performance of the Mayor and the City Council members. Lastly, access to the names will allow oversight of how those employees have been treated by City officials as a result of having been identified to the City."

The Times’ attorneys have asked that the city be required to pay the newspaper’s attorneys’ fees. The city claims it should not be forced to pay those fees.



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