Laura Clark, the attorney for the Autauga/Prattville Library Board, has refused the demands from the recently terminated library director, Andrew Foster, who called for a retraction and apology from Clark for statements surrounding Foster’s firing.
Earlier this month, the Autauga/Prattville Library Board voted to terminate Foster for "revealing confidential information in violation of criminal law."
The confidential information Foster was accused of sharing involved a public records request filed with the library by the far-left website Alabama Political Reporter (APR). APR's Jacob Holmes then used the information in an article highlighting perceived ambiguity and confusion with the new board's policies involving "weeding," removing or relocating books.
The story contained information between board members and attorney Laura Clark, which Clark contends is privileged attorney/client information. Additionally, board chairman Ray Boles claimed Foster recorded executive sessions, which he claims violated Alabama's Open Meetings Act (OMA) law.
In response, Foster secured attorney Christopher Weller, who sent letters to the board and Clark. The letter to the board demanded Foster’s reinstatement, restoration of library privileges and a "name-clearing hearing." The letter to Clark demanded a retraction and apology for accusing Foster of committing criminal acts by recording executive sessions and releasing confidential information in the open records request.
Weller's letter to Clark can be found below.
Letter from Andrew Foster's attorney to Laura Clark. by Craig Monger on Scribd
Clark also said that Foster’s recording can be considered criminal eavesdropping. Weller’s letter claims that the action was not criminal since Alabama is a single-party consent state, and Foster consented to the recording. Even if the recording violated OMA, the letter contends it would be a civil matter, not a criminal one.
Additionally, the letter argues that the board’s claims that Foster shared “confidential information” in the open records request were equally false.
“Apparently, you claim that this email communication was protected from disclosure as confidential attorney-client communication. The only guidance ever provided to Mr. Foster regarding Open Records requests was an email from the Prattville City Attorney, Andrew Odom, stating that internal emails were not '’typically’ disclosable public records.”
“Mr. Foster is not an attorney and was not able to judge which communications are privileged without guidance from you or the Board. The Board and you, as its counsel, could have requested an opportunity to review all responsive documents prior to release, but this was not done,” the letter continued.
Clark responded to Weller’s letter to her personally, laying out reasons she believes Foster’s claims face “behemoth-sized obstacles” to succeed. Boles and the library board have not issued responses to Weller’s letter. The full letter can be found below.
Laura Clark's reponse to Foster's attorney. by Craig Monger on Scribd
Clark claims Foster’s claims fail for the following reasons:
· Clark’s alleged defamation does not meet the legal definition of “publication.”
· Clark has “absolute and qualified privilege” as the board’s attorney.
· Weller’s case cannot prove that Clark’s statements were made with “actual malice,” meaning Weller would have to prove Clark made statements she knew were false or with “reckless disregard for the truth.”
· Clark’s statements were truthful regarding Foster’s actions that resulted in his termination.
“Frankly, I believe you know all of this,” Clark said. “I find it more likely that your demand letter was an attempt to get me to turn on my client, as well as my friend Mr. Boles, or at least to give up information that could plausibly provide enough information to make your otherwise frivolous complaint plausible. That isn’t going to happen. To avoid causing further harm to your client, I will take this opportunity to inform you of the material portions of law that you failed to discuss and the counterclaim I must bring against your client if you sue. Instead of wasting your client’s time and money, you should do the smart thing and walk away.”
Clark continued, “You cannot prove publication, lack of privilege, or the presence of actual malice. Most importantly, what I said was true. In the unlikely event that you actually sue, Mr. Foster will face a counterclaim and a strong possibility of paying my attorney fees. I have no desire to do either, so whether he will face an embarrassing loss and a hefty attorney-fee bill depends completely on you. I decline to apologize.”
While claiming that Weller would have a significant burden of proof to display a legally sufficient case for defamation, Clark further argues that her statements that Foster did release confidential information were truthful and accurate.
“First, you claim that he did not reveal confidential information in response to Jacob Holmes’s Open Records request,” Clark stated. “But even in the email from Mr. Odom to Mr. Foster—which you selectively quoted—Mr. Foster was informed that ‘Internal communications, such as texts, emails, etc., and phone records are not typically disclosable public records,’ and ‘internal and external correspondence, such as emails … are not subject to disclosure.’”
“Thus, not only did Mr. Foster fail to consult the most natural lawyer to ask in the situation, but he also rejected the advice of the City Attorney and the Alabama Attorney General. He had plenty of notice that this information was confidential, but he ignored it and handed it over anyway – most likely because the advice he received did not get him to the political result he wanted,” she continued.
Clark further re-stated her claims that she believed Foster violated criminal eavesdropping statutes since recording is allowed “except while in executive session” under OMA. Therefore, Clark claims that OMA provides an exception to the general rule that recording is allowed if one party consents.
“In this case, ‘eavesdrop’ is to ‘record … any part of the private communication of others without the consent of at least one of the persons engaged in the communication, except as otherwise provided by law.’ Ala. Code § 13A-11-30 (emphasis added). If it weren’t for the italicized phrase, you would be correct, but you apparently stopped reading at the preceding phrase. One party consent is enough unless the law provides otherwise. In this case, the Open Meetings Act provides that government meetings may openly be recorded ‘except while in executive session.’”
“In this case, your failure to understand the open records law and the portions of the open-meetings act relating to executive sessions are not my fault – the text is plainly in my favor. As to criminal-eavesdropping, unless you can definitely show that ‘except as otherwise provided by law’ means something other than ‘except as otherwise provided by law,’ you will not be able to demonstrate that I was negligent in my interpretation of the law.”
Clark concluded her letter by stating that if Foster proceeded with a lawsuit, she would additionally countersue for statements Foster made, claiming Clark said he “violated federal law.” She additionally stated no desire to sue but demanded a retraction of Foster’s “false and defamatory” statements.
“Immediately upon his termination, Mr. Foster went out and claimed that I told him he broke ‘federal law,’ although I would never tell him specifically which law he broke,” Clark said. “None of that is true. Because of the false and defamatory statements he has been spreading about me, of which the Alabama Political Reporter and AL.com have savored every morsel, I have been subject to constant attacks on my competence as an attorney.”
Additionally, Clark stated that she would be willing to handle their issues ecclesiastically since both belong to the same Christian denomination.
"I will note that Mr. Foster and I are both members of the Churches of Christ. If I felt that I had to do something to Mr. Foster to restore my good name, I would seek to have the elders of our churches sit down together and try to work it out between us before I would consider suing him. See I Corinthians 6:1-8. So if I have to counterclaim in a lawsuit, it would only be because you forced it," she said.
To connect with the author of this story or to comment, email craig.monger@1819news.com.
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