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Andrew Foster, recently terminated from his job as director of the Autauga-Prattville Public Library, called on APPL Board Attorney Laura Clark to retract what he said were defamatory statements.
Clark responded on Tuesday, stating that the charge of defamation against her falls short on multiple fronts, including that what she said was true.
“Nowhere in your letter did you address the McDaniel/Burney rule, qualified privilege, or the actual-malice standard. Even if you were able to overcome these behemoth-sized obstacles—which you are not—you also will not be able to disprove the affirmative defense of truth.”
The bulk of Clark’s response focuses on three reasons the statements would never make it to the point of being considered on the merits.
First, Clark claims that the statements were not published to a third party.
“Consequently, if I did not send the communications in question to anyone other than the board and Mr. Foster, then there is by definition no publication under Alabama law,” Clark wrote.
Clark also claimed she had absolute privilege to “publish defamatory matter … preliminary to a proposed judicial proceeding … if the matter has some relation to the proceeding.”
And further, she said she has absolute immunity because two of the alleged defamatory statements were made “during a meeting in compliance with the Open Meetings Act.”
Whether that meeting complied with the Open Meetings Act is also under the microscope though, as Foster has demanded reinstatement, retraction and a name-clearing hearing from the board on accusations that the board violated the Open Meetings Act at least four different ways during the meeting in which the board terminated him.
One of those charges is that the executive session was not properly entered into by the board, which failed to include in its motion why it was going into executive session.
Clark also claims that the statements were protected by attorney-client privilege, and that Foster could not waive this privilege himself since the privilege existed among joint clients.
But if “lightning somehow strikes twice in the same place and you’re able to get past the first two problems, there is no way you will be able to satisfy the actual-malice standard,” Clark wrote to Foster and his attorney, Chris Weller.
Clark argues that Foster is at least a limited-purpose public figure, if not a full public figure, therefore requiring Foster to prove actual malice to successfully find that Clark had defamed him. She also notes that “I strongly believe that Mr. Foster himself tipped off Mr. Holmes to submit the open-records request, and I fully intend to explore that issue in discovery if this case actually proceeds.”
This is the second time in her response that Clark announces her intent to explore communications between Foster and Holmes in discovery if the case goes to trial, but does not explicitly outline what relevance it would have to determining whether her statements were defamatory.
But besides the procedural hurdles, Clark also claims she told the truth.
She explains in her letter her belief Foster did release confidential information.
“… 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,” Clark wrote. “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.”
As for the allegation of criminal eavesdropping, Clark argues that the eavesdropping statute can apply despite Foster being party to the conversation due to a phrase in the statute “except as otherwise provided by law.”
Clark argues that the provision of the Open Meetings Act generally allowing for the recording of meetings, “except in executive session,” creates an expectation of privacy that makes recording the session qualify as criminal eavesdropping.
Again, whether that executive session was even legitimate is still in question; neither Clark nor the board have yet responded to Foster’s demand for reinstatement and retraction based on allegations of Open Meetings Act violations.
Clark advises that the Weller “do the smart thing and walk away,” because the “baseless accusations” would lead to Foster having to pay her legal fees as well as face a counterclaim for defamation because he told media she said he had “violated federal law,” and that his statements have led to “constant attacks on my competency as an attorney” and even death threats.
“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.”
However, Clark says she has no desire to sue Foster.
“I am annoyed by the lies he has spread about me,” Clark said. “But when I remember who is mad at me – the slim minority of Alabamians who want kids to get exposed to porn and make the taxpayers fund it – it’s easier just to laugh it off and move on. But if you bring a defamation claim against me, then I must bring a counterclaim if it arises out of the same transaction or occurrence, or else I waive it.”
Instead, Clark suggested a church meeting, noting that both she and Foster are 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.”
Clark has now given Foster five days to apologize himself, although she states that she will only sue him if he follows through with legal action against her.
