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Empire editorial: The court must say where to draw the line

Posted: June 13, 2012 - 11:04pm

Late last month, the Juneau Empire filed a notice of appeal with Juneau Superior Court.

This appeal seeks to overturn the opinions of two City and Borough of Juneau administrators — one of whom is City Manager Kim Kiefer — that the Empire is not entitled to certain records involving several criminal cases of obvious public interest, most notably records involving the Juneau Police Department’s investigation of one of its own, Brian Ervin.

One of the records the Empire sought was denied outright, while another was provided with so many redactions it looks like an endurance test by the manufacturers of Sharpie markers.

The city, in justifying its denial, cites its desire to protect the privacy of the victim, the defendant and witnesses. We’re sympathetic to the desire to shield the victim’s identity and the identities of certain witnesses. However, it must be pointed out the Ervin trial is concluded. He’s no longer a defendant, but instead a man who’s pleaded no contest to a felony charge of attempted interference with official proceedings (more on that in a bit). The victim, Darcy Ervin, has courageously consented to the use of her name and the telling of her story with the hope the horrors of her ordeal might let other victims know they are not alone and can seek help. The statute the city cites requires the protection of privacy must be reasonable. Here, however, the case has already been adjudicated in open court and the person most deserving of privacy protection doesn’t want it. The city’s claim their denial is reasonable to protect privacy, given all the circumstances involved, isn’t reasonable, and that’s why we are pursuing an appeal in that case.

It’s a reasonable question to ask why we want those records after the case has already been decided. Here’s where that part about Ervin’s plea bargain comes into play. He didn’t contest charges of attempted interference with official proceedings after initially being charged with four counts of sexually abusing a minor. That’s quite a step down, especially given his sentence was 54 months in prison, against a presumptive sentence of 20-35 years if convicted of the sexual abuse charges. Darcy Ervin’s claims were found credible by the sentencing judge, and by the grand jury that indicted Brian Ervin. By all indications she was willing to testify against her alleged abuser.

So why did District Attorney Dave Brower not take this case to trial and instead agree to a much-reduced sentence? We don’t know, and he isn’t saying. Brian Ervin was a city employee investigated by other city employees. In this circumstance, it’s particularly important openness and transparency are ensured, to guarantee there has been no abuse of power by allowing charges to be manipulated to protect Brian Ervin or the city at the expense of justice for the victim. Again, we don’t know, but it’s our job to try to find out, and that’s what we are doing.

The city, and other holders of public records, have an obligation to make those documents available to the citizens who entrusted those officials to keep and maintain them, absent a compelling reason. Here, we don’t agree the privacy concerns raised are reasonable, or at least don’t think the city has done enough to balance its concerns with its obligation to disclose. It’s unfortunate we’ve had to take the step of legal action, but the city has left us little choice if we want to meet our obligations as journalists. Fortunately, we will get a chance to make our case in a court of law, and not have to rely on the judgment of the same entity we’re asking to release the records. We’re seeking openness, not salaciousness and the line between the two is not up to the City and Borough of Juneau to draw. The laws of the state have done that for us, and we now await the court’s survey of where that boundary is demarcated.

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