Wednesday, July 18, 2007

Open Records And The Wilson Tape

Former federal prosecutor and U.S. Congressman Bob Barr has an interesting article regarding the vilification of Douglas County District Attorney David McDade.
The Georgia Open Records Act is even more explicit. If the judge with jurisdiction over a case does not approve public inspection of the evidence, the person responsible for the maintenance of the evidence, including a district attorney, is then required by the law to make available a reproduction or copy.

Really? Well, before we get to that, what about a couple of other angles on the issue?

A Typical Joe handles the political aspect. It appears Barr's recent resurgence of common sense libetarianism once again takes a back seat when the sex is involved.

Sara (with local PD Audacity commenting) handles the concept of federal pre-emption. A concept that's been settled for only about 140 years.

But what about Georgia Open Records statutes? Is it as simple as Bob Barr states? Via the tip line, Georgia Unannotated Code 50-18-72:
(a) Public disclosure shall not be required for records that are: (1) Specifically required by the federal government to be kept confidential; (2) Medical or veterinary records and similar files, the disclosure of which would be an invasion of personal privacy.

Number 2 might be argued but number 1 is pretty clear.

If there are other legal minds that disagree, the tip line and the comments section are wide open.


Sara said...

My guess is that Barr, like many states' rights advocates, has a problem with an expansive view of federal preemption. He would prefer to argue that states get a lot of leeway in what they want to legislate and that the feds need to be explicit in their intent to preempt or else the states can be outliers.

Unfortunately for Barr, preemption is in the Constitution's Supremacy Clause and the federal courts have been trending towards, rather than against, a broader view of federal preemption in the last few decades. I don't think under any circumstances would a federal court find a violation of a federal criminal provision acceptable because it conflicted with a state Open Records statute, and particularly not one with exceptions like you mentioned.

It seems pretty obvious McDade has to deliberately misread both state and federal law to make his argument work. I'm not surprised he would do that because he's a slimebag who's trying to save his own behind, but I am surprised Barr would play dunce to make his argument work. Perhaps his civil libertarianism causes him to place undue importance on the openness of government, but he's just flat wrong.

griftdrift said...

Libertarians above all value the harm principle. Releasing a tape showing a 15 year old performing a sex act definitelt violates that principle.

Jen said...

If everything was available via Open Records, there would be no need for the Discovery statute and reciprocal discovery.

I could simply ask for everything the State has via Open Records and keep all my evidence to myself, surprise at trial.

In any event, once it's confirmed that there's a video in my CM case, I'm going to request it via Open Records.