Supreme Court denies request for records in 2017 shooting involving Baldwin Sheriff’s deputy

By John Underwood / john@gulfcoastmedia.com
Posted 10/1/21

MONTGOMERY — On Friday, Sept. 24, the Alabama Supreme Court upheld a lower-court ruling stating that the Baldwin County Sheriff’s office did not have to turn over all records pertaining …

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Supreme Court denies request for records in 2017 shooting involving Baldwin Sheriff’s deputy

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MONTGOMERY — On Friday, Sept. 24, the Alabama Supreme Court upheld a lower-court ruling stating that the Baldwin County Sheriff’s office did not have to turn over all records pertaining to a 2017 officer-involved shooting to a Mobile weekly newspaper.

The judgement, issued by Justice Greg Shaw, was entered in favor of the defendants, Baldwin County Sheriff Huey Hoss Mack, and two members of the Baldwin County Sheriff’s Office, Col. Anthony Lowery and Lt. Michael Gaull, in the action alleging that they improperly denied a request by the Mobile independent weekly newspaper Lagniappe for public records in violation of the Open Records Act.

In May 2017, Cpl. Matt Hunady, a deputy with the Baldwin County Sheriff’s Office, responded to the scene of a single-vehicle accident where, ultimately, he fatally shot Jonathan Victor, the driver and sole occupant of the vehicle, according to records.

The incident was apparently captured on video by various means, including Hunady’s body camera and cell phones of eyewitnesses. The Baldwin County Major Crimes Unit was called in to investigate the shooting.

In October 2017, a Baldwin County grand jury returned a unanimous finding that charges would not be brought against Hunady, resulting in his reinstatement.

In January 2019, Lagniappe reporter Jason Johnson emailed Lowery requesting information. Through subsequent emails, Johnson requested all records related to the shooting of Victor, “including but not limited to dash cam, body cam, and third-party video; the audio from any 911 calls or radio communications; photographs from the scene; autopsy records; and communications such as emails, text messages and other forms of messaging.”

Lowery referred Johnson’s request to Gaull who eventually denied the request.

Lagniappe would later sue the Sheriff’s Office, Lowery and Gaull in the Baldwin County Circuit Court. The complaint was later amended, omitting the Sheriff’s Department as a defendant, and adding Mack alleging that the Sheriff’s Department had violated the ORA by failing to produce “nonexempt public writings.”

Following additional filings and a hearing, the trial court ruled in favor of the Sheriff’s Department.

In its judgement issued Sept. 24, the Supreme Court upheld the lower court’s ruling, stating that the records fall under an exemption for investigative records.

Chief Justice Tom Parker filed the lone dissent in the judgement, stating that the ruling “spells the end of public records access to law-enforcement records that are connected in any way to an investigation.”

“I cannot sit idly by while this Court shrinks a legal right of the people of Alabama to the vanishing point,” Parker wrote. “And I especially cannot do so when that shrinkage flies in the face of text and precedent.”

In their judgement, the justices agreed with the Sheriff’s Department argument that “the materials at issue, even if not specifically generated by law-enforcement officers during or for the purpose of a systematic inquiry into a criminal incident, nonetheless fall into the broader ‘related investigative material’ label that the legislature purposefully designated as ‘not public records.’

“All materials requested by Lagniappe are related to the incident regarding Cpl. Hunady, which was the subject of a criminal investigation,” according to the judgement. “The very wording of Lagniappe’s request, seeking all the ‘records related to the shooting,’ seeks such investigative material. There is no need for affidavits or other evidence to establish what the Sheriffs possessed because all the records that were requested would be covered …. Thus, the investigate-privilege exception applies.”