Charleston officials have balked at releasing a police videotape from the scene of Councilwoman Deborah Morinelli's June arrest for drunken driving, contending that they must first allow her attorney to try to persuade a judge to block the tape's release.
The motion to block the release of the tape was filed after the city informed Morinelli's lawyer, former Councilman Paul Tinkler, that The Post and Courier had filed a South Carolina Freedom of Information Act request to obtain the tape.
Having informed Tinkler of the June 29 request, the city then cited the motion filed by his law firm on July 15 as the reason why the tape would not be immediately released.
"We find ourselves in the middle, and would like the court to resolve this," said city attorney Susan Herdina,who said Morinelli and her attorney received no special treatment or favoritism.
"It is not unusual for the city to do this," Herdina said. "We have had requests where someone is asking for documents that potentially have an impact on a third party, and what we do in those situations is reach out to the third party and tell them we've had a FOIA request, and see if they have an objection."
Jay Bender, attorney for the South Carolina Press Association, said a city's duty is to comply with the open records law, not to help third parties throw up roadblocks.
"The city is not caught in the middle of anything," he said. "The city has failed to follow the law, and is now trying to excuse that failure by relying on a court that appears to me to have no jurisdiction."
Bender said municipal courts have no jurisdiction over Freedom of Information Act requests. He also said the information request should have been automatically considered approved because the city failed to approve or deny the release of the information within the time allowed under the law.
The city did not respond to the newspaper's Freedom of Information Act request until Tuesday and has taken the position that it does not have to declare whether it will release the videotape until the motion filed by Morinelli's attorney is resolved.
State law requires local governments and other bodies subject to the FOIA law make a determination to provide or deny information requested within 15 working days, in writing.
The law states: "If written notification of the determination of the public body as to the availability of the requested public record is neither mailed nor personally delivered to the person requesting the document within the fifteen days allowed herein, the request must be considered approved."
Morinelli is contesting the DUI charge and a charge of having an open container in her vehicle and is seeking a jury trial, which has not yet been scheduled.
"It's a difficult situation because it brings to bear the age-old conflict between someone's right to a fair trial and other people's right to know," said Tinkler, her attorney.
"I want everything to be open and above board," he said. "I was trying to get a hold of this tape myself, to examine the evidence, and it was in that context that I was informed of the FOIA."
"This is how they (the city) ought to handle any request involving any citizen charged with a crime," Tinkler said.
Morinelli was charged after her Jeep went into a ditch at Plainview and Ashley River roads, not far from her home, around 1:30 in the afternoon on June 26. Morinelli told reporters that another car ran her off the road.
A police report said Morinelli smelled of alcohol at the scene, had an open, single-serving size bottle of wine in her purse and attempted to stay seated on the ground but kept falling over onto her back. The police response to the incident was videotaped by one of the officer's car-mounted cameras, according to the report. It is that tape that The Post and Courier sought under the FOIA law.
Morinelli has said she would take a month off from City Council and said she has been attending Alcoholics Anonymous meetings. She did not attend the July council meeting Tuesday.