Nixon Peabody – RI Future

Addressing a brazen attempt to chill freedom of speech, the American Civil Liberties Union of Rhode Island today announced it has agreed to provide legal representation to the Warwick Post and the Warwick Beacon, both of which have been threatened with a defamation suit if they write stories about the contents of a public document.

The threat, by the Warwick School Department’s outgoing director of human resources Rosemary Healey, was made in response to the imminent release of a report prepared for the school committee, examining how Healey and other school administrators handled accusations of sexual misconduct made against a junior high school science teacher. The Attorney General recently ruled that the report, with certain information redacted, was a public record.

Even though Healey’s attorney, Jeffrey Sowa, acknowledged that Healey had not “been given the opportunity to substantively review the report,” he called the report “neither fair nor impartial” and “defamatory and malicious” in his letters to the publishers of the Post, a news website, and the Beacon. While further acknowledging that the Attorney General had ruled the document a public record, Sowa wrote that the publishers would “not be insulated from liability” for releasing information about the report, and that they should “cease and desist from publishing any matters relating to” Healey.

ACLU volunteer attorneys Neal McNamara and William Wynne from the law firm of Nixon Peabody have agreed to defend the newspapers if Healey follows through on her threat of legal action. Both papers are prepared to publicize the report, which is expected to be released sometime later today.

Warwick Post publisher and editor Robert Borkowski said today: “I’ve often been threatened with frivolous lawsuits aimed at scaring me away from reporting on public matters and records in 20 years of community journalism. This was the first time it directly threatened a business I owned, though, and it rattled me. But Attorney Sowa, who must surely be aware of First Amendment protections regarding reporting on public officials and documents, sought to bully Mr. Howell and me into walking away from our responsibility to give the parents of Warwick the information they need to assess the deeds of the people they entrust their children to each day. So when I thought about that, I was only rattled a little while. Fortunately for Warwick parents, Mr. Howell, and me, the ACLU of Rhode Island has agreed to offer us legal representation if Sowa and his client make good on their threat.”

John Howell, publisher of the Warwick Beacon, added: “Ever since the School Committee completed an investigation of how its administrators handled complaints about a teacher drawing phallic symbols on the arm of a junior high school female student last spring, the Warwick Beacon has sought to get a copy of that report. That request was denied by the committee and later by the city after it used its subpoena powers to get the school report. Fortunately, the Attorney General agrees the report is public. Given that ruling and our belief that the citizens of Warwick have the right to know how their school administrators acted, I intend to publish those findings.”

ACLU of RI executive director Steven Brown stated: “A public employee’s threat to sue newspapers for doing their job – informing the public about the contents of a public document on a matter of enormous public interest – attacks the very heart of the freedom of the press. Over twenty years ago, the General Assembly passed a law to protect people from lawsuits that have a chilling effect on speech. As that statute, known as the anti-SLAPP law, points out, ‘full participation by persons and organizations and robust discussion of issues of public concern … are essential to the democratic process.’ The public document at issue here deserves a full airing, and the First Amendment was designed to allow that airing. We are prepared to vigorously defend the Post and the Beacon from this threatened abuse of the legal process.”

The American Civil Liberties Union of Rhode Island has asked a federal court to order the U.S. Drug Enforcement Administration (DEA) to release thousands of pages of documents in support of its Freedom of Information Act (FOIA) lawsuit on behalf of local journalist Philip Eil, who has been stymied for years in his effort to obtain from the DEA evidence disclosed at a major prescription drug-dealing trial. In its motion for summary judgment filed yesterday, the ACLU called for the release of “the wrongfully withheld documents post haste.”

In a 15-page memo, ACLU volunteer attorneys Neal McNamara and Jessica Jewell, from the law firm of Nixon Peabody, argue that the DEA has wrongfully withheld thousands of pages of evidence shown during the 2011 trial of Dr. Paul Volkman, whom the Department of Justice calls “the largest dispenser of oxycodone in the country from 2003 to 2005” and who is currently serving four consecutive life terms in prison.

Requesting the prompt release of this trial evidence, McNamara and Jewell write, “The government cannot on the one hand hold this case up as an example of how it investigates and prosecutes diversion cases and on the other state that the majority of the evidence used to convict such a defendant is not actually available to the public. FOIA is meant to prevent such ‘secret law.’ The general public clearly has an interest in knowing how Volkman was investigated and prosecuted.”

In support of the motion, the memo further notes that the federal government itself has uploaded to a publicly accessible judicial records website some of the documents it continues to withhold from Eil.

The ACLU’s legal memo was accompanied by an eight-page affidavit from Eil, in which he describes an array of obstacles he faced while covering the Volkman trial. Before the trial began, Eil says a DEA agent told him he could be charged with witness tampering for conducting interviews with potential witnesses. In 2011, while attending the trial, in Cincinnati, he was subpoenaed for testimony by the lead prosecutor and barred from re-entering the courtroom, though he was never actually called to testify. When he filed his FOIA request with the Department of Justice in February 2012, the agency took more than three years to fully respond, and withheld more than 85 percent of the pages it processed. Many of the pages released were significantly redacted.

“In 2009, when I learned of Volkman’s indictment, I set out to tell the story of a highly-educated man – my father’s former classmate – who became one of the most notorious prescription drug dealers in U.S. history,” Eil states in the affidavit. “As we approach the five-year anniversary of the verdict in that case . . . I am astonished that the vast majority of evidence from his trial remains sealed off to that case’s plaintiff: the American public.”

ACLU of Rhode Island executive director Steven Brown stated: “I am hopeful that the court will put a stop to the DEA’s flippant attitude towards the Freedom of Information Act. The agency’s siege mentality in trying to wear out Mr. Eil through years of delays amounts to an appalling attack on the public’s right to know.”

The DEA (represented by the office of Rhode Island U.S. Attorney Peter Neronha), has until May 4th to respond to the ACLU’s motion, with rebuttal memos due in June and July. Oral argument will likely be heard before U.S. District Judge John McConnell, Jr. sometime later this year.

These filings take place during Sunshine Week, a week designated to educate the public about the importance of open government, and at a time of heightened criticism of President Barack Obama’s transparency record. In 2015, the Associated Press reported that the Obama administration had “set a record again for censoring government files or outright denying access to them” in 2014. And, last week the Freedom of the Press Foundation reported that “the Obama administration – the self described ‘most transparent administration ever’ – aggressively lobbied behind the scenes in 2014 to kill modest Freedom of Information Act reform that had virtually unanimous support in Congress.”

Eil is an award-winning freelance journalist who served as the news editor and staff writer at the Providence Phoenix until the paper’s closing in 2014. He has since contributed to VICE, Salon, the Atlantic, Rhode Island Monthly, and elsewhere. He has conducted more than 100 interviews, across 19 states, for his book about the Volkman case.

Tag: Nixon Peabody

ACLU offers legal representation to Warwick Beacon and Warwick Post against potential lawsuit

During Sunshine Week, ACLU seeks court order for the release of documents a local journalist has sought for years