In a series of counter motions filed in mid-August, Todd Fort has responded to States Attorney Mike Henshaw's motions to dismiss Fort's lawsuit against him.
Fort — former chief deputy of the Saline County Sheriff's Office who served prison time for sex with a 17-year-old working at the sheriff's office — has also filed a motion to add parties to the lawsuit, specifically, "The Disclosure" and the publishers of "The Disclosure," Jack and Angela Howser.
In addition, Fort has made a motion to strike from evidence the affidavit and exhibit of Angela Howser's Freedom of Information request cited by Henshaw, and another motion for a new judge to be appointed to the case.
Henshaw filed motions to dismiss Fort's case based on the contention that several of Fort's claims were not properly alleged or supported, that Henshaw was protected from legal action by several forms of immunity protecting public servants and that date of Fort's filing suit had exceeded the statute of limitations that apply to cases of this type. Fort's counter-motions rebut these contentions.
Fort has claimed intrusion upon seclusion against Henshaw because of Henshaw's release of tapes of phone conversations Fort had with family member when fort was incarcerated in Jackson County Jail awaiting trial. Henshaw's response was that Fort knew all his phone calls were taped and thus should not have placed the calls if he did not want to risk their being released to the public. In the response, Fort claims that he did know that his calls were taped, but that knowledge did not in any way give consent for the calls to be published. "The mere fact that your conversation is being taped does not mean that you authorized it being posted on the Internet," Fort's filing states.
Fort's response to Henshaw's request to dismiss the claim of public disclosure of private facts is that such release of information is only justifiable when the public interest would be served by the release of such information. Fort maintains that the release of tapes of his phone calls did not in any way serve the public interest and only caused him embarrassment and emotional distress. "The very conversations are still available online. The evidence is not going away," the filing states.
In response to Henshaw's motion to dismiss intentional infliction of emotional harm based Fort not being able to make more then a "conclusory allegation" that he suffered severe emotional distress, Fort's response is brief and succinct.
Citing several legal precedents pointing to the conclusion that the primary question in situations of this sort is whether the defendant's behavior was extreme and outrageous, Fort maintains the releasing tapes of personal phone calls is extreme and outrageous.
As to Henshaw's contention that he is protected by absolute immunity because he was responding to a Freedom of Information request Fort's response is complex.
Page 2 of 2 - Freedom of Information Act requests can only be acted upon by a designated and trained Freedom of Information Officer, Fort claims. Henshaw was not occupying that position nor, apparently, had a Freedom of Information Officer been designated for the Saline County State's Attorney's Office, according to Fort.
The Freedom of Information Act request should have been directed to the Jackson County Jail, not to the Saline County State's Attorney's Office, Fort claims. Henshaw had no duty to release copies of the tapes in response to a FOIA request because FOIA requests do not apply to him specifically, according to Fort's filing. That by requesting copies of Fort's phone conversations and then releasing them to "The Disclosure" Henshaw failed in his duty to protect Fort's privacy in personal matters, and cites sections of the FOIA exemptions section including, "Personal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, unless the discloser is consented to in writing by the individual subjects of the information."