Attorney destroys madam’s ‘black book’ despite request

Some courts have taken action against parties that destroy records before review of the denial is complete

From the Summer 2001 issue of The News Media & The Law, page 36.

A Frederick, Md., newspaper and the Associated Press have accused officials of a cover-up through the shredding of a public document. Although the news organizations acknowledge that the shredding was done by a private party, they believe that the city should be sanctioned for handing the public document over to an attorney who shredded the document.

In motions filed in March by The Frederick News-Post and the Associated Press, the media claimed that Frederick public officials made a concerted effort to block access to a “black book,” including aiding in the destruction of the book. The black book was seized from Angelika Potter, who pleaded guilty to running a prostitution ring in Frederick in November 2000.

Several newspaper stories about Potter’s arrest said she kept a “black book” of clients, some of whom allegedly were unidentified city officials. According to court documents, Potter’s light sentence — probation and a $100 fine — smelled like a “rat” to the News-Post.

To check out these allegations, the News-Post requested access to the book of names that police collected as part of an investigation into Potter’s actions.

Last November, the city denied the request under an exception to the Maryland open records act for investigative records that would infringe on certain public interests, such as those that would identify a confidential source or would prejudice an investigation. However, the city did not specify what public interest would be injured by release of the black book.

The News-Post along with the Associated Press appealed the denial in December 2000 in Circuit Court in Frederick County. While the news media appeals were pending, Potter filed a lawsuit to recover her book from the city, claiming she had intellectual property rights to it. The city also filed a lawsuit asking the court to clarify its duties under the law. In February, Potter’s suit was dismissed and the city voluntarily dropped its lawsuit after agreeing to hand the black book over to Potter’s attorney.

Later that month, Frederick Mayor James S. Grimes ordered that the book be returned to Potter’s attorney, who immediately began shredding its contents, despite the fact that the document was still subject to the news media appeal.

At an emergency hearing the next day the news media convinced a Frederick County Circuit Court judge to enter an emergency order preventing Potter’s attorney from destroying any more documents, but not before nearly all of the book was destroyed, according to court documents.

The news media are now asking the court to sanction Potter’s attorney for destroying documents they believe are public and to fine the city for handing over public documents to Potter’s attorney.

Destruction of public records obliterates any chance of success under open records laws. It undermines the ability to use state and federal open record laws to access documents created or held by agencies.

However, there have been very few cases in which freedom of information requesters have squared off against agencies that not only denied the records, but destroyed them before an appeal or a lawsuit could be brought.

Some courts have taken notice of the seriousness of public record destruction and have levied penalties. Most notably, a federal district court in Washington, D.C. in March 2000 fined a federal agency $10,000 for failing to reconstruct destroyed records. The court ordered the reconstruction after the Executive Office for United States Attorneys “purged” a file of a drug crime prosecution. (Jefferson v. Reno)

Despite the lack of solid statutory and case law on destruction of records, the media should confront officials suspected of destroying public documents by publicizing that information is being withheld. Several news organizations, including the Associated Press and Frederick News-Post, have publicized the events surrounding the destruction of the black book.

Although subsequent Washington Post reports have said that Frederick Mayor Grimes is planning to run for re-election, he announced at an aldermen meeting in June that he would not seek re-election because of the media coverage of the black book and its shredding.

The News-Post quoted Grimes at the meeting, “The misquotes. The headlines. The stories. They suck.” — CC