Scripps Wins I-Team Defamation Case in Cincinnati

April 2006 By Monica L. Dias Scripps Wins I-Team Defamation Case in Cincinnati A former public relations consultant for a public school board dropped the appeal of her defamation lawsuit against Cincinnati television station WCPO-TV and its reporter in March after a trial judge dismissed the case. The plaintiff also agreed to pay the station $500 and agreed in writing that the broadcast she challenged was not actionable. (Groene v. WCPO-TV, No. A050501 (Hamilton County Common Pleas Ct. March 15, 2006) (Davis, J.).) Background Facts In late 2003, WCPO s investigative unit, the I-Team, received complaints from residents of Norwood, a Cincinnati suburb, about what they perceived to be the Norwood City School District s wasteful spending and the school district s refusal to explain its spending decisions. These residents began investigating the district s spending after they became frustrated with below-average test scores and graduation rates at the city s schools. The residents found several examples of questionable spending, including the purchase of an overpriced garage for storing lawn mowers, the purchase of an elaborate phone system that was not being used for its stated purpose of keeping parents informed of important school news, and thousands of taxpayer dollars spent on retirement parties for school employees. Frustrated at the school district s refusal to explain the expenditures, residents asked the Ohio State Auditor s office to investigate. The auditor s investigation found no criminal wrongdoing. Residents remained frustrated. They still had received no satisfactory explanation as to why the board was spending thousands of taxpayer dollars on parties and a lawnmower palace instead of on things that would directly benefit students. That s when they turned to the I-Team and I-Team reporter Laure Quinlivan. The school district was no more forthcoming with Ms. Quinlivan than it had been with Norwood residents. Neither the superintendent nor any of the elected school board members would agree to an on-camera interview. They refused to provide any meaningful explanation to the I-Team for their spending decisions. In the course of investigating the story, the I-Team learned through one of the residents that the school district was paying a business named Groene Personnel Consulting Service Inc. for public relations consulting work. The resident obtained copies of the

company s invoices to the school district. Those invoices contained no description for the work performed in exchange for taxpayer dollars other than public relations work. Curious, Ms. Quinlivan requested and obtained a copy of the school district s contract with the company and invoices showing the company and its owner, Judith Groene, were to be paid a total of $36,000 under a one-year contract to provide public relations services. Although Ms. Groene s contract stated that she was hired to field and direct responses to all media-related inquiries, Ms. Groene had never been in contact with the I-Team in response to any of the I-Team s repeated requests that someone at the school district grant them an interview to answer questions about spending. No one at the school district had referred the I-Team to Ms. Groene for the requested interview. Once alerted to Ms. Groene s existence, the I-Team requested that the school district produce her for an on-camera interview, but the school district refused. Unbeknownst to the I-Team, no one at the school district told Ms. Groene of the I-Team s request to interview her. In fact, the school district deliberately kept Ms. Groene removed from the I- Team s communications and inquiries. The school district would not answer questions about its $3,000-per-month contract with Ms. Groene or explain why it had hired someone with no public relations experience to be its public relations consultant. The I-Team also asked the school district to produce copies of Ms. Groene s entire work product. The district produced a handful of documents, including copies of school newsletters and the school calendar, and a brief description of expense reimbursement amounts paid to Ms. Groene. The Complaint and Motion for Summary Judgment On February 17, 2004, the day of its broadcast about the school district s questionable spending, Ms. Quinlivan contacted Ms. Groene to ask her if she would answer any questions about her contract. Ms. Quinlivan testified in her deposition after the phone call, she added to the story the information she had learned from Ms. Groene, including that Ms. Groene had no previous public relations experience, that the superintendent contacted Ms. Groene about the job, and that Ms. Groene worked about 20 hours per month to earn her $3,000 monthly payment, which amounted to $150 an hour. The broadcast included Ms. Groene s contract as just one of four examples of questionable spending by the school district. After the broadcast and in a move to appease upset residents, the district canceled the public relations contract with Ms. Groene two weeks before it expired. In January 2005, Ms. Groene sued WCPO-TV and Ms. Quinlivan for defamation. She claimed the broadcast ruined her business. Ms. Groene challenged several statements in the broadcast:

Guess who else won t do an interview? The district s public relations consultant. The I-Team found she has a contract that pays her to deal with the media. Groene, who gets paid without submitting any record of the work she s done. PR consultant Judy Groene tells me she met Steve Collier when she worked at the state auditor s office writing job descriptions for school openings PR Consultant Judy Groene tells me she used to work for the state auditor s office writing job descriptions for job openings, and that s how she met Superintendent Collier. He s paying her 20 hours a month, at $150 an hour. She s paid $150 an hour, despite having no PR experience. In their motion for summary judgment, WCPO and Ms. Quinlivan argued that the challenged statements were not actionable because they were substantially true and not defamatory, were protected expressions of opinion, and were statements deserving of the qualified common interest privilege recognized under Ohio law. WCPO and Ms. Quinlivan argued that Ms. Groene could not produce any evidence of actual malice, which is necessary to defeat the privilege. Ms. Groene was most offended by the statement that her salary of $3,000 a month for 20 hours of work per month equated to $150 an hour. Ms. Groene argued that she told Ms. Quinlivan she worked 27 hours per week for the school district. She argued that Ms. Quinlivan s purported failure to report the accurate number of hours defamed her, caused her to lose business with other school districts (despite the fact that she had only written job descriptions for those districts and had never done any public relations work for them), and was evidence of reckless disregard for the truth. However, Ms. Groene testified in her deposition that she had no evidence that Ms. Quinlivan knew during their phone conversation that Ms. Groene said she worked 27 hours per week but decided to report 20 hours per month in the broadcast. Ms. Groene also agreed in her deposition that it was possible Ms. Quinlivan asked how many hours a month Ms. Groene worked for the school district, and Ms. Groene responded with how many hours per week she worked. Ms. Groene also took offense at the statement that she got paid without submitting any record of the work she did for the school district. She contended in her deposition that she kept every piece of her work product in a binder in the superintendent s office. However, the superintendent testified in his deposition that he had no knowledge of the binder and never saw its contents until his deposition. No one at the school district provided the binder s contents to Ms. Quinlivan during the I-Team investigation, and no one at the school district asked Ms. Groene to provide it to the I-Team.

On December 19, 2005, immediately after hearing oral argument, Judge David Davis granted WCPO s motion for summary judgment. He found the majority or all of the challenged statements to be true or substantially true, not defamatory, or protected statements of opinion. He also found that the qualified privilege applied and that Ms. Groene failed to show that WCPO and Ms. Quinlivan acted with actual malice in reporting the statements in the broadcast. On December 28, 2005, Judge Davis filed the final entry dismissing Ms. Groene s complaint and charging all costs to Ms. Groene. Based on that order, on January 25, 2006, WCPO filed a motion for approval of a bill of costs requiring Ms. Groene to pay multiple thousands of dollars to WCPO for its costs incurred in taking or defending depositions. Two days later, Ms. Groene filed a notice of appeal with the Ohio Court of Appeals. In March, Ms. Groene signed a non-confidential release in which she agreed to pay $500 to WCPO, agreed that the broadcasts were not actionable in the first place, and agreed to withdraw her appeal if WCPO withdrew its motion for costs. WCPO agreed not to seek costs, fees, sanctions or any other recovery from Groene or her attorneys. Ms. Groene withdrew her appeal on March 15, 2006, and WCPO withdrew its motion for costs a week later. By Kevin T. Shook Media Defendants Win Defamation Case Against Evangelist Sinclair Media II, Inc. and Outlet Broadcasting, Inc. were recently granted summary judgment against defamation claims filed by Charles Spingola, a confrontational evangelist. For 25 years, Mr. Spingola has traveled to public places to protest gay activism and sodomy. His sermons utilize various props to stir controversy and spread his message in a confrontational style. In 2001, Mr. Spingola was arrested after burning a gay flag at a Pride Parade in Columbus, Ohio. In addition to being charged with open burning for his conduct at the parade, Mr. Spingola was also charged with aggravated menacing and assault (both misdemeanors). These charges were filed after a security guard at the parade claimed Mr. Spingola sprayed her with gasoline and told her she was going to burn in hell. Mr. Spingola was eventually acquitted of the assault and menacing charges, but found guilty of open burning. After being acquitted, Mr. Spingola filed a lawsuit against WCMH- TV4 (Outlet) and WSYX-6 (Sinclair) claiming that their television news reports regarding his arrest were false and defamatory.

To prevail on a defamation claim, a public figure like Mr. Spingola is required to show that the media defendants reported on the events with actual malice, meaning the defendants either knew their broadcasts were false or acted with reckless disregard for the truth. Mr. Spingola alleged that both the Sinclair and the Outlet reports were published with actual malice for different reasons. The key issue in the case was whether Mr. Spingola could prove actual malice at trial. With respect to the Sinclair report, Mr. Spingola attempted to prove actual malice based upon Sinclair s statement that the incident was violent, an inaccurate statement that he also burned a flag in 1999 and a statement that Spingola might be charged with a felony. The court found that none of these facts could possibly support a finding of actual malice. The court noted that Sinclair s video of the incident did depict a violent and chaotic scene. Also, Mr. Spingola had burned flags in previous years and the mistaken reference to 1999 did not support a finding of actual malice. Finally, the court noted that Sinclair s report regarding the charges that would likely be filed against Mr. Spingola was based upon interviews with the Columbus police. The fact that the police eventually filed different charges that were not felonies did not support a claim for defamation. The court also found that Mr. Spingola failed to prove Outlet acted with actual malice. Mr. Spingola attempted to prove that Outlet acted with actual malice based upon similar statements that Mr. Spingola might be charged with a felony and additional statements regarding the security guard s claim that she had been sprayed with gasoline. The court found that the statements in the Outlet report could not possibly support a claim for defamation because the security guard did indeed make this allegation and the video evidence did not suggest anything that would lead a reporter to believe these allegations were false. Further, just like Sinclair, Outlet merely reported the charges the police told them would likely be filed. The trial court s ruling will hopefully bring an end to Mr. Spingola s protracted civil litigation against the media. By Stephen M. Gracey HIPAA Does Not Preempt The Ohio Public Records Act On March 17, 2006, the Ohio Supreme Court, in State ex rel. Cincinnati Enquirer v. Daniels, 108 Ohio St. 3d 518, 2006-Ohio-1215, unanimously held that the federal HIPAA privacy law does not preempt the Ohio Public Records Act. Normally HIPAA prevents the disclosure of individual protected health information. One exception to this general rule occurs when the protected health information is required by law to be disclosed. HIPAA does not supersede or preempt state disclosure requirements. As such, the Ohio Public

Records Law, R.C. 149.43, which requires the disclosure of public records, includes the disclosure of records containing HIPAA protected information, provided the requested records fall within the ambit of the Ohio Public Records Act. The Cincinnati Enquirer asked the Cincinnati Health Department to produce copies of lead citations issued between 1994 and January 16, 2004. The Cincinnati Health Department refused to produce the records, claiming their production would violate HIPAA because the records contained individual identifiable health information. The Cincinnati Enquirer filed a mandamus action for their production. The state of Ohio has longstanding public policy reasons for open public records, which the Ohio Supreme Court has consistently enforced. According to Ohio law, unless the requested public records fall within one of the specific limited exceptions to the Public Records Act, a request for access to the public records should be granted. Ruling in favor of production of the records, the Supreme Court noted a conflict between Ohio s state public record law and HIPAA. Under HIPAA, protected health information generally should not be disclosed. But this information can be disclosed to the extent that such disclosure is required by law. Under Ohio law, the Ohio Public Records Act requires disclosure of records unless the disclosure or release is prohibited by federal law. Since HIPAA and the Ohio Public Records Act are circular in relation to each other, the Ohio Supreme Court looked to the history of the HIPAA enactment. Examining the history of HIPAA, the Supreme Court found that Congress did not intend to preempt state law with HIPAA and that covered health care providers were required to still comply with its existing legal obligations. Additionally, federal Freedom of Information Act requests require disclosure of protected health information that meet the relevant requirements of the law. Therefore, an entity like the Cincinnati Department of Health, faced with an Ohio Public Records Act request, need determine only whether the requested disclosure is required by Ohio law to avoid violating HIPAA s privacy rule. The Ohio Public Records Act required disclosure of the requested documents; therefore, the Cincinnati Department of Health had to produce them. After prevailing, the Cincinnati Enquirer sought its attorneys fees under R.C. 149.43(C). The court denied the request because the case presented a new legal question. The court found that public agencies should not be punished for taking a rational position on an unsettled legal issue.

By Joseph A. Tomain Update: Momentum for a Federal Shield Law On Friday April 21, 2006, the Media Law Committee of Ohio State Bar Association sponsored a seminar on the reporters privilege at the University of Cincinnati College of Law. The interdisciplinary panel included UC law professor A. Christopher Bryant, investigative reporter for WCPO-TV Laure Quinlivan, and FBT media law attorney Monica Dias. Joe Tomain, also a FBT media law attorney, moderated. The seminar emphasized the need for a federal shield law to protect journalists from having to reveal confidential sources. As Monica Dias said, This issue is important not because reporters are so special, but because of the public's right to know. Without an informed citizenry, our democracy cannot function as well as it should. A shield law promotes the goal of an informed citizenry. The quintessential example of a confidential source exposing government corruption is Watergate. With the recent controversies involving Valerie Plame, Wen Ho Lee, and domestic wiretapping, there is an opportunity to educate the public on the need for a federal shield law. This seminar was just one small step in keeping the momentum alive for the enactment of a federal shield law. Currently, the Free Flow of Information Act (H.R. 581), a proposed federal shield law, has been working its way through Congress. On March 14, 2006, the bill s sponsor, Representative Mike Pence (R-IN) formally addressed the House of Representatives regarding the Act. He commended House Judiciary Committee Chairperson Jim Sensenbrenner (R-WI) for holding upcoming committee hearings on the Act. Pence noted the timeliness of the announcement because it was made during National Sunshine Week a week celebrating openness in government. He closed his brief remarks by quoting Daniel Webster s missive that the entire and absolute freedom of the press is essential to the preservation of government on the basis of a free constitution. If you would like more information on the reporters privilege, materials from the April 21 seminar are available. Please contact Joe Tomain at jtomain@fbtlaw.com for the materials or other questions. THIS IS AN ADVERTISEMENT To contact us, please write to: Frost Brown Todd LLC 2200 PNC Center 201 East 5th St. Cincinnati, OH 45202-4182 OR Frost Brown Todd LLC 400 West Market St. 32nd Fl. Louisville, KY 40202-3363