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Police Records Access - 50 State Info Police Records Access - 50 State Info Document Transcript

  • Police Records A reporter’s state-by-state access guide to law enforcement recordsWinter 2008
  • Although most states provide for the Vanderbilt University, said he learned via “held that a governmental entity cannotrelease of information about arrests and a newspaper article in spring 2006 that the enter into confidentiality agreements withcriminal convictions, there have been at least Metropolitan Nashville Police Depart- regard to public records.”two recent movements aimed at hiding this ment was displaying on a department Web The station also argued that the decreesvaluable information from public view. site pictures, names and other information operate as a form of prior restraint in viola- In Nashville, Tenn., a Vanderbilt Univer- about men arrested for solicitation of pros- tion of the First Amendment.sity law professor has sought enforcement titution. Frank Gibson, director of the Tennes-of a more than 30-year-old federal consent “I had moved on,” Blumstein said. “I see Coalition for Open Government, saiddecree that shields arrest information from hadn’t monitored this. I thought and as- he believes advocates for overturning ordisclosure. sumed that they would act in good faith; we redrafting the consent decrees have a good At the same time, an American Bar negotiated this in good faith. Every once in a shot at winning.Association commission recommended while you would see some arrest information “The government lawyers, who are onnumerous restrictions on criminal records come out, but I thought that came through our side in this particular case, probably saidbefore withdrawing the resolution from con- the court system because news media have it best in their argument before the federalsideration by the ABA House of Delegates access to court records.” judge,” Gibson said. “The public has a rightin August 2007. Blumstein said the reason behind the case to know about crime in their neighborhoods. In the early 1970s, a class-action lawsuit is the protection of the interest an individual And, if the police department can’t reportin Nashville, Tenn., resulted in two consent holds in being able to obtain employment, that they’ve arrested someone in a crimedecrees (a mix between a contractual agree- and not having an arrest that does not result in that might be of great public interest thenment and a court order) that limited how the a criminal conviction hamper that interest. the public doesn’t know about it.”city, county and state governments could use “The evidence we developed at the time Gibson also expressed concern that thearrest information. and was conceded by the government, and consent decrees could negatively impact Specifically, in 1973 the government there’s still pretty good evidence of that, is programs such as Crime Stoppers.agreed not to use information about arrests that people can be discriminated against in “This would make such programs asthat did not result in criminal convictions their employment when arrest records are Crime Stoppers obsolete,” he said. “Mostin considering applications for employment available,” Blumstein said. Crime Stoppers are looking for peoplewith the Metropolitan Government or its He said that when raw arrest information who’ve been charged with a crime, butboard of education. is released, it does not afford the arrestee a haven’t been convicted. This consent decree Additionally, in 1974, the government chance to defend the arrest. says the police department cannot identifyentities agreed not to disseminate informa- However, media groups have argued in anybody arrested for a crime until they aretion about arrests made by the Metropolitan court documents that changes in law since convicted.”Government except to law enforcement the consent decrees were accepted require Blumstein disagreed with Gibson’s assess-agencies for law enforcement purposes. the agreements to be modified. ment, saying that the consent decrees do not Jump ahead more than 30 years to 2007 Citing a United States Supreme Court prevent officials from releasing informationand Doe v. Briley is active again after a law decision (Paul v. Davis, 424 U.S. 693 (1976)), about suspect who have yet to be arrested. Heprofessor who represented the class in the attorneys for Nashville’s NewsChannel 5 further said that the decrees do not preventoriginal case sought to have the consent have argued that one’s reputation is not a the police from announcing an arrest, theydecree enforced. liberty or property interest protected by just cannot name the specific individual who James F. Blumstein, a law professor at the Constitution. They have also argued, has been arrested. citing a Sixth Circuit case from 1996, that The case is still pending in federal District there is no privacy interest “in one’s criminal Court in Nashville. Police Records record.” Winter 2008 Although Blumstein agreed that a change ‘Guilt isn’t the only measure’ in law could be grounds for a modification to Sparked by a speech by U.S. Supreme The Reporters Committee is grateful the consent decrees, he said the time to raise Court Justice Anthony Kennedy, the to legal intern Sean Hill for his work such an argument has come and gone. He American Bar Association created two com- in updating the introduction to this said the appropriate time for that argument missions to examine the national criminal guide. He built on the work of previous “would have been sometime after 1976,” justice system. fellows and interns. when Paul was decided. The first produced recommendations The television station, however, has in 2004 related to sentencing procedures, © 2008 The Reporters Committee also argued that the information should specifically calling for the repeal of manda- for Freedom of the Press. All rights be released under the Tennessee Public tory minimum sentences. reserved. This material may not Records Act, which provides access to “all The current commission, the ABA Com- be reproduced without the written state, county and municipal records” unless mission on Effective Criminal Sanctions, has permission of the Reporters a state statute provides otherwise, according made recommendations to restrict access to Committee. to the station’s court filings. criminal history information. “Moreover, subsequent Tennessee case These recommendations were to be The Reporters Committee for law has made it clear that the agreement presented to the ABA’s House of Delegates    Freedom of the Press to enter into the Consent Decree by the in August 2007, but were withdrawn at the 1101 Wilson Blvd., Suite 1100 Metropolitan Government and by the last minute. Arlington, VA 22209 State itself is unenforceable and a violation In its recommendations, the commission (703) 807-2100 of public policy,” NewsChannel 5 wrote in urged governments to limit access, within the web: www.rcfp.org court documents. limits of the First Amendment to criminal e-mail: rcfp@rcfp.org The television station also pointed out cases where charges are dropped or not that the Tennessee Court of Appeals has pursued, those that result in acquittal, wherePage 2 The Reporters Committee for Freedom of the Press Winter 2008
  • convictions are overturned, other sources, often with little difficulty.or where confessions are If a charge has been filed and the case hasset aside. been turned over to a court, access may be The commission also had greater because the U.S. Constitution andrecommended that access to many state constitutions guarantee publicmisdemeanor and felony access to the criminal judicial system. But ifconvictions not involving the information you seek is in law enforce-“substantial violence, large ment officials’ hands, obtaining it can bescale drug trafficking, or more difficult.conduct of equivalent grav- Information may be kept in severality” be restricted after “the different forms at a police station. Oftenpassage of a specified period there is a “blotter” -- a log of all calls forof law-abiding conduct.” assistance received by police. It may provide One recommended ex- rudimentary information about the locationception would have allowed of an event, the time and a brief descriptionsuch convictions to be of the caller’s request.used in later prosecutions For additional information about anor sentencing hearings. item on the blotter, you may want to seeThe commission had also the incident report filed by the officer whorecommended that judges answered the call. In some police depart-should be able to grant ac- ments all reports are kept in one office. Incess to records for “good others, the reports may be filed in the officecause shown” or where that will investigate the incident further. For“public welfare support[s] example, a report about a robbery would gorevocation” of restriction. to the “crimes against persons” office and a The recommendations report about prostitution or drugs would gohad also stated that dis- to the vice squad.closure of restricted re- A third source of information is the ar-cords need not be made to rest or “booking” log, which provides basicemployers or anyone else information about individuals charged withquestioning an individual’s crimes. Often it includes the name, addresscriminal background, ex- and age of the suspect and brief descriptionscept for law enforcement. of charges filed against the individual.The commission had also To determine whether a person is beingrecommended that liability AP Photo by Lefteris PitarakisA held in jail or has been released on bail, you Availability of arrest records varies widely from statefor an employer’s negligence may have to inquire at another office at the to state; some make little information available, whilein hiring be removed so long others make arrest information and entire ‘rap sheets’ police station or the clerk’s office in the courtas the relevant records had available to the public. where suspects are arraigned.been restricted. The commission also recommended found innocent. Cultivate your local policethat credit reporting agencies be prohibited “Innocence is a measure that is important In practice, getting to know members offrom releasing information about restricted for the press to be able to audit,” Joyner said. the police force could be the most importantrecords. “If they close these records where someone step in learning about events, criminal and Chris Joyner, a reporter at The Clarion is charged and found innocent, we’re sort of noncriminal, and getting access to policeLedger in Jackson, Miss., said he opposes going around half blind.” records.any attempt to close access to records, but He said what impact these recommen- At the scene of a crime, accident or otherthat the ABA commission’s recommenda- dations would have, if adopted by local emergency, a friendly officer may providetions scared him. governments, would be delayed. He said the information that you will not find in an “In these specific recommendations, they impact may not be noticed until someone incident report until hours later, if at all.scare me because they place the documents wants to look at large-scale issues within the But be careful. Some of the informationentirely on one side of the ledger in the hands court system. may be incomplete or not entirely accurate.of law enforcement,” Joyner said prior to the “A big part of the watchdog function Publishing such material without verificationwithdrawal of the recommendations. “That of the press is to go back and look at large might lead to a libel suit. You should readprovides no opportunity for the press or for numbers of cases to see what they tell us the actual incident report, or contact higherindividual citizens to provide some sort of about the way the system is working for officials who can confirm the information,check on that power. It requires us to place people,” Joyner said. “If those records are before writing your story.a mount of trust on the court system that the then sealed after the fact, we’re going to In most states, fair and accurate reports ofcourt generally does not require.” lose that ability.” the contents of official documents, including Joyner said court records are among the police records, are privileged. In those states,most important held by the government Sources for information about a news organization that accurately reportsbecause they reflect how individuals are crimes, criminals the contents of an official police documentjudged innocent or guilty. Information about crimes, criminals and containing false information cannot be held He said it is important for court records their victims is a staple for most local news- liable for the inaccuracies. In a few casesto remain open not only to see who has paper and broadcast news operations. Re- courts have ruled that a reporter who has notbeen convicted, but also to see who has been porters obtain it from police, the courts and read the report from which the informationWinter 2008 Police Records Page 3
  • was obtained cannot invoke the privilege. Others allow you to ask for copies. The may want to bring this to the attention of Therefore, even if a police official has time limit for providing copies will vary the city, county or state attorney.provided information from an incident or from state to state. Statutes and case law on media access toarrest report over the telephone, it is a good If, in your state, an open records request police records vary greatly from state to state.practice to visit the police station and read would compel you to wait for paper copies Some states’ open records laws, includingthe document yourself. of information, you may want to invoke the Indiana’s, Minnesota’s and Oregon’s, go into At headquarters, police personnel may access laws only as a last resort. great detail about access to arrest records,alert you to a seemingly innocuous blot- Individual police officers may not be incident reports and “rap sheets.”ter entry that could be a page one story. aware of the requirements of the state’s open Open records laws in some states make noYour source may let you read the relevant records laws. Be prepared to point to statu- mention of law enforcement records. In somereports or refer you to someone else who tory provisions that entitle you to inspect of these states, court opinions specify the lawhas them. and copy public records. enforcement records that are open. Most police agencies also have writ- Often the records law will exempt “in-Laws and rules govern access ten policies concerning what information vestigatory” records. An informal poll of The open records laws in most states is public and who may release arrest and state press associations showed that theirguarantee that police records are open un- incident reports. Acquaint yourself with foremost concern in gaining access to policeless some specific exemption would allow those policies so that you can invoke them records is the broad and frequent interpre-officers to deny access to the information. when needed. tation of police records as “investigatory,”Some of those laws entitle you to inspect If the policies are at odds with the re- even when release would clearly not harmrecords during regular business hours. quirements of the open records law, you investigations.State-by-state guide to access The following summaries of state laws are public records. Ala. Code § 12-21-3.1(b) mission. Op. Att’y Gen. Ala. No. 2005-042,derived from the “police records” section of the (Supp. 2005). However, there is author- 2005 Ala. AG LEXIS 9 (Jan. 18, 2005); Ala.Reporters Committee’s “Open Government ity for public access to complaint reports, Code §41-9-590 et seq. (2000); Ala. Code §Guide,” available online at www.rcfp.org/ogg. including the front side of incident/offense 41-9-636 to 642 (2000).These guides are written by attorneys in each reports subject to the right of the sheriff to There is statutory or case law authoritystate who often litigate these issues on behalf of withhold or redact certain information on a for closure of the following records regardingjournalists. case-by-case basis depending on the nature crime victims: Court files regarding crime of the case, the status of the investigation, victim’s petition hearing that reveals theAlabama whether the victim would be subject to victim’s address, telephone number, place Since police departments and their officers threats or intimidation, or when public of employment, and related information,can properly be considered “public officers disclosure would hinder the investigation; Ala. Code § 15-23-69 (1995); Crime Victimsand servants of counties and municipalities” Washington County Publications v. Wheat, No. Compensation Commission reports andwithin Alabama Code § 36-12-1 (2001), all CV-99-94 (Cir. Ct. of Washington County, information obtained from law enforcementpolice records that are not expressly made Ala., May 1, 2000); as well as search and ar- officers and agencies, Ala. Code § 15-23-5confidential by statute or that must be kept rest warrants, with supporting affidavits and (1995); child abuse reports and records,confidential to protect a pending criminal depositions, after a search warrant or arrest Ala. Code § 26-14-8(c) (Supp. 2005); andinvestigation should be open. warrant is executed and returned. 197 Op. complainant identification on arrest reports. Accident reports (Alabama Uniform Traf- Att’y Gen. Ala. 13 (Oct. 10, 1984). Birmingham News Co. v. Deutcsh, CV 85-504-fic Reports) are available to the public. There is no specific statutory or case law 132 JDC (Cir. Ct. of Jefferson County, Ala., The police blotter is a public record un- authority regarding public access to records Equity Div., Aug. 19, 1986).der the authority of Birmingham News Co. of closed investigations. Alabama Attorney General opinions havev. Watkins, No. 38389 (Cir. Ct. of Jefferson There is authority for public access to approved closure of information gatheredCounty, Ala., Oct. 30, 1974) (based upon the following arrest records: arrest reports, about a crime victim who is also a witness tothe First Amendment, not Public Records with redaction of witness identification a crime. Op. Att’y Gen. Ala. No. 2000-225,Law, with discretion for police department and witness reports at the discretion of the 2000 Ala. AG LEXIS 166 (Aug. 30, 2000);to withhold portions of records or entire police department, Birmingham News Co. v. Op. Att’y Gen. Ala. No. 2000-203, 2000 Ala.records if and as necessary to prevent “actual Deutcsh, CV 85-504-132 JDC (Cir. Ct. of AG LEXIS 136 (Aug. 8, 2000).interference” with law enforcement). Jefferson County, Ala., Equity Div., Aug. There is no statutory or case law author- There is no specific Alabama statutory 19, 1986) (consent order); and arrest war- ity regarding public access to records ofprovision or case law authority regarding rants and search warrants, with supporting confessions.public access to 911 tapes, but the Alabama affidavits and depositions, after execution Rule 3.9 of the Alabama Rules of CriminalAttorney General has held that 911 tapes and return. 197 Op. Att’y Gen. Ala. 13 (Oct. Procedure protects the identity of confi-are public records, Op. Att’y Gen. Ala., No. 10, 1984). dential informants when sworn testimony2001-086 (Jan. 26, 2001), and Alabama media Compilations of criminal histories by is taken to support the issuance of a searchhave been able to obtain access to such tapes the Alabama Criminal Justice Information warrant.in several instances in recent years. Center (ACJIC) are available to only those There is no statutory or case law authority Law enforcement “investigative reports persons with a “right to know” or “need to regarding public access to records of policeand related investigatory material” are not know” as determined by the ACJIC Com- techniques; however, the Alabama Crimi-Page 4 The Reporters Committee for Freedom of the Press Winter 2008
  • AP Photo by George WidmanDispatchers work inside a 911 call center in Manheim, Pa. Recordings of the calls are often only released if police thinkthere will be a benefit in doing so, although in many states they will not be released at all.nal Justice Information Center’s proposed These laws are dealt with in the compre- copied by subsequent amendment of thechanges to the Law Enforcement Officers’ hensive survey of the law governing access Anchorage Municipal Code) simply codifiedHandbook state that a law enforcement to police records contained in the Nov. 25, what was generally understood to be theagency may redact information from Ala- 1994, Op. Att’y Gen. No. 663-93-0039 (re- prevailing common law, and was consistentbama Uniform Incident/Offense Reports ferred to hereafter as “1994 Police Records with an earlier superior court case grantingthat “would reveal investigatory techniques.” AG Opinion.”). access to a police tape recording. AnchorageSee ACJIC, Law Enforcement Officers’ Hand- Police records are specifically addressed in Daily News v. Municipality of Anchorage, 11book, Part III (proposed changes) (October the Public Records Act, as a result of a 1990 Media L. Rptr. 2173 (Alaska Super. Ct.,2005), available at http://www.alabamapress. amendment that added AS 40.25.120(6). 3rd Jud. Dist., April 26, 1985). There, theorg/alapress/forms/LEOfficersHandbook. This exception to the general public right court ordered release of tape recordedpdf. to inspect public records provides that an conversations between a police officer and A mug shot in a police computer database agency may withhold law enforcement a municipal assembly member stopped foris a public record. Op. Att’y Gen. Ala. No. records that: could reasonably be expected a traffic violation. The court stated that in2004-108, 2004 Ala. AG LEXIS 35 (Apr. to interfere with enforcement proceedings; order to construe the municipal ordinance1, 2004). would deprive a person of a right to a fair exempting police records as being consis- State law requires each sheriff to keep trial or an impartial adjudication; could rea- tent with state law, police records must bein the sheriff’s office, subject to public in- sonably be expected to constitute an unwar- disclosed, at least when a case is closed andspection during office hours, a well-bound ranted invasion of the personal privacy of a in the absence of other circumstances thatbook that must include a description of each suspect, defendant, victim or witness; could compel continued withholding, such asprisoner received into the county jail. Ala. reasonably be expected to disclose the iden- endangerment of witnesses and disclosureCode § 36-22-8 (2001). tity of a confidential source; would disclose of confidential informants or investigative confidential techniques and procedures for techniques.Alaska law enforcement investigations or prosecu- Records that are otherwise public remain Statutes requiring or authorizing the tions; or would disclose guidelines for law subject to disclosure when they are usedwithholding of police records include the enforcement investigation or prosecution if for, included in, or relevant to law enforce-Public Records Act, the Criminal Justice the disclosure could reasonably be expected ment proceedings and other litigation. ASInformation Systems Privacy and Security to risk circumvention of the law. 40.25.122.Act (Alaska Stat. [hereinafter “AS”] 12.62), The addition of subsection 120(6) (which The Alaska Rules of Court were revised inand AS 28.15.151, dealing with drivers’ mirrors the federal FOIA provisions for law 1989 to exempt search warrants and relatedrecords and traffic reports. enforcement records, and was substantially affidavits, receipts and inventories from dis-Winter 2008 Poiice Records Page 5
  • source, or that would disclose confidential disclosure of a victim’s identity contained techniques and procedures for law en- in police records. Accordingly, the general forcement investigations or prosecutions. provisions of Arizona’s Public Records Law AS 40.25.120(6)(D), (E). See 1994 Police governs. Records AG Opinion, § A.1.a. Confessions in police records are public The Public Records Act specifically records and thus presumed open for inspec- authorizes an agency to withhold records tion and copying. or information compiled for law enforce- Records of reports of criminal activity “to ment purposes that could reasonably be a silent witness, crime stopper or operation expected to interfere with enforcement game thief program” are not public. A.R.S. proceedings, or that would disclose confi- § 12-2312. dential techniques and procedures for law Wiretapping activity cannot be revealedclosure until after an indictment is returned, enforcement investigations or prosecutions. except to specific public officials involved inexcept upon a showing of good cause, and to AS 40.25.120(6)(A)(E)(F). See 1994 Police the investigation. A.R.S. § 13-3011.make these documents presumptively public Records AG Opinion, § A.1.b. Mug shots are public records and thus pre-after charges are filed. Ak.R.Cr.P. 37(e). The Public Records Act does not spe- sumed open for inspection and copying. Accident reports are presumably open, cifically address photographs or mug shotssubject to the restrictions permitted by AS within the context of law enforcement Arkansas40.25.120(a)(6). records, but as these would be within the The Arkansas Freedom of Information Police blotters are presumably open general definition of public records, there Act (“FOIA”) exempts “[u]ndisclosed in-under the public records statute, and case is no apparent reason why mug shots would vestigations by law enforcement agencieslaw interpreting similar statutes. not be available or unavailable according to of suspected criminal activity.” Ark. Code 911 tapes are presumably available on the criteria set forth in AS 40.25.120(6). Ann. § 25-19-105(b)(6). A record must bethe same basis as other police records, and investigative in nature to fall within thehave been obtained by news media, but in Arizona exemption, Hengel v. City of Pine Bluff, 307any given case access may be subject to ar- The release of police records is governed Ark. 457, 821 S.W.2d 761 (1991), and onlyguments based on the Victim’s Rights Act, by the Arizona Public Records Law. A.R.S. records of “ongoing criminal investigations”and balancing of personal privacy interests §§ 39-121 to -125. are exempt. Martin v. Musteen, 303 Ark. 656,in individual cases. Executive orders 98-6, 98-4 and 95-5 have 799 S.W.2d 540 (1990); McCambridge v. City The state public records law, in AS prohibited the release of accident reports for of Little Rock, 298 Ark. 219, 766 S.W.2d 90940.25.120(a)(6)(A) (and a similar provision commercial purposes. (1989).in the Anchorage Municipal Code and some 911 tapes are public records and thus pre- By statute, traffic accident reports com-other municipal ordinances) exempts from sumed open for inspection and copying. pleted by a police agency must be madedisclosure law enforcement records or infor- In Cox Arizona Publications Inc. v. Col- available for public inspection “at all reason-mation that “could reasonably be expected lins, 175 Ariz. 11, 14, 852 P.2d 1194, 1998 able times.” Ark. Stat. Ann. § 27-53-305(a).to interfere with enforcement proceedings.” (1993), the Arizona Supreme Court reversed A separate statute provides that accidentThe statute does not expressly distinguish the court of appeals’ ruling that the public reports by the state police are open to thebetween active and closed investigations, but is not entitled to examine police reports in public. Ark. Code Ann. § 27-53-209.records from a closed case are less likely to “an active ongoing criminal prosecution.” Police blotters are open, as are incidentinterfere with proceedings. The Arizona Supreme Court held that such reports, dispatch logs, and similar “routine” Arrest records are presumably public. a “blanket rule . . . contravenes the strong records. Hengel v. City of Pine Bluff, 307 Ark.See 1994 Police Records AG Opinion, § C; policy favoring open disclosure and access.” 457, 821 S.W.2d 761 (1991); Ark. Op. Att’ysee also, Jan. 1, 1989, Op. Att’y Gen. No. Thus, public officials bear the “burden of Gen. No. 87-319.663-89-0142. showing the probability that specific, mate- Emergency calls recorded by a publicly The names of victims of sexual assaults rial harm will result from disclosure” before supported 911 communications center areor kidnapping can no longer be given out. it may withhold police records. Mitchell v. open. Ark. Op. Att’y Gen. Nos. 99-409,In addition, the business and residence ad- Superior Court, 142 Ariz. 332, 335, 690 P.2d 95-018, 94-120, 94-100, 90-236. However,dresses and phone numbers of victims or 51, 54 (1984). a statute exempts “subscriber information”witnesses of any crimes cannot be given out. However, A.R.S. § 13-2813 prohibits from disclosure. Ark. Code Ann. § 12-10-See generally, Article 2 of the Victim’s Rights disclosing “an indictment, information or 317(a)(2).Act, AS 12.61.100 - .150. complaint . . . before the accused person is The FOIA’s law enforcement exemption, Nothing in the statute specifically ex- in custody or has been accused.” Ark. Code Ann. § 25-19-105(b)(6), appliesempts confessions, but as a practical matter A person who has been wrongly “arrested, to records that are investigative in nature,disclosure of confessions by police and pros- indicted or otherwise charged,” can have the Hengel v. City of Pine Bluff, 307 Ark. 457, 821ecutors is governed by standards issued by arrest record cleared and such information S.W.2d 761 (1991), but only if the investi-the American Bar Association. Confessions shall not be released to any person. A.R.S. gation remains ongoing. The Hengel caseoften become public when they are attached § 13-4051. indicates that information, such as an officer’sto court pleadings filed in connection with A.R.S. § 41-619.54(C) provides that all speculation about a suspect’s guilt, his ormotions to suppress their use as evidence criminal history records in the hands of the her views as to the credibility of witnesses,in a trial. Board of Fingerprinting are private and and statements by informants fall within the The Public Records Act specifically pro- not subject to A.R.S. § 39-121. Further, exemption. See also Ark. Op. Att’y Gen. No.vides that an agency may withhold records or it provides that any good cause exception 99-110 (exemption applies to opinions andinformation compiled for law enforcement hearing is also private and not subject to impressions of investigating officer).purposes that could reasonably be expected A.R.S. § 39-121. Arrest records are open. Hengel v. Cityto disclose the identity of a confidential Arizona does not specifically prohibit the of Pine Bluff, 307 Ark. 457, 821 S.W.2d 761Page 6 The Reporters Committee for Freedom of the Press Winter 2008
  • (1991). However, records of thearrest or detention of a juvenileare exempt unless disclosure isauthorized by written order ofthe juvenile division of circuitcourt or the juvenile is formallycharged with a felony in thecriminal division. Ark. Stat. Ann.§ 9-27-352. So-called “rap sheets” are ex-empt from disclosure by virtue ofArk. Code Ann. § 12-12-1003(e).This information, which is main-tained by the Arkansas CrimeInformation Center, cannotbe obtained from prosecutors,local police departments, orother authorized persons whohave received it from the center.E.g., Ark. Op. Att’y Gen. No.94-054. A statute passed in 1997provides that the address andtelephone number of a victimof a sex offense, a victim of anyviolent crime, a minor victim ofany offense, or a member of the AP Photo by David Kidwell , Pocono Record Journalists rely on access to the records created during police investigations and othervictim’s family “shall be exempt information gathered from crime scenes to report on important stories.from the Arkansas Freedom ofInformation Act.” Ark. CodeAnn. § 16-90-1110(c)(2). Cal. Gov’t. Code §§ 6250 through 6276.48, is currently being held, and all charges the Records reflecting confessions are appar- and by the state’s constitution through the individual is being held upon, including anyently open to the public, unless the particular Sunshine Amendment, Cal. Const. Art. I, § outstanding warrants from other jurisdic-record is considered “investigative” in na- 3(b), passed by voters in 2004. tions and parole or probation holds. Cal.ture. See Ark. Op. Att’y Gen. No. 89-158. Accident reports are exempt. Cal. Veh. Gov’t Code § 6254(f)(1). The FOIA does not contain a specific Code § 20012. Abstracts of accident reports For complaints or requests for assistance,exemption for the identities of confidential required to be sent to the state are open to the agency must disclose such facts as the timeinformants, although such information is the public for inspection at the DMV during and nature of the response, the time, date andexempt under the law enforcement exemp- office hours. Cal. Veh. Code § 1808. location of occurrence, the time and date oftion, Ark. Code Ann. § 25-19-105(b)(6), so A police blotter is a public record as to the report, the name and age of the victim,long as an investigation is in progress. Ark. information that is expressly stated to be the factual circumstances surrounding theOp. Att’y Gen. No. 2002-149, 90-305. subject to disclosure in the statute. Cal. Gov’t crime or incident, and a general description Generally, the FOIA’s law enforcement Code § 6254(f)(1), (2) and (3). of any injuries, property or weapons involved.exemption will not apply to agency manuals 911 tapes are public as to most informa- Cal. Gov’t Code § 6254(f)(2).that contain policies and instructions to law tion contained in tape but tape itself arguably The California Public Records Act’senforcement personnel, since they are not not required to be disclosed under investiga- exemption for investigatory files does notinvestigative in nature. Cf. Hengel v. City of tory records exemption. Cal. Gov’t Code § terminate when the investigation termi-Pine Bluff, 307 Ark. 457, 821 S.W.2d 761 6254(f)(1), (2), and (3). nates. Williams v. Superior Court, 5 Cal. 4th(1991). The attorney general has opined that Specified facts from investigatory or 337, 362, 852 P.2d 377, 19 Cal. Rptr.2dlaw enforcement manuals are exempt only if security records, without disclosure of the 882 (1993).they are “part of an ongoing investigation.” records themselves, must be disclosed unless Arrest records, including a list of specificArk. Op. Att’y Gen. No. 85-134. disclosure would endanger the successful details, must be released, except to the ex- Mug shots are open. The FOIA definition completion of an investigation, or related tent that disclosure of a particular item ofof “public record” is broad enough to include investigation, or endanger a person involved information would endanger the safety of aphotographs, see Ark. Code Ann. § 25-19- in the investigation. Cal. Gov’t Code §§ person involved in an investigation or would103(5)(A), and a mug shot is not sufficiently 6254(f)(1), (f)(2) and (f)(3). endanger the successful completion of theinvestigative to qualify for protection under For arrests, the agency must disclose such investigation or a related investigation. Cal.the law enforcement exemption. Cf. Hengel v. facts as the name, occupation and detailed Gov’t Code § 6254(f)(1); see also County of LosCity of Pine Bluff, 307 Ark. 457, 821 S.W.2d physical description of every individual ar- Angeles v. Superior Court (Kusar), 18 Cal. App.761 (1991). rested by the agency, as well as the time and 4th 588, 22 Cal. Rptr. 2d 409 (1993). date of arrest, the time and date of book- Local summary criminal history informa-California ing, the location of the arrest, the factual tion (a “rap sheet”) is exempt from disclosure. Open records law in California is rep- circumstances surrounding the arrest, the Cal. Penal Code § 13300.resented by statute primarily through the amount of bail set, the time and manner of The name and age of victims shall be madeCalifornia Public Records Act (“CPRA”), release or the location where the individual public, unless disclosure would endanger theWinter 2008 Poiice Records Page 7
  • the court under Colo. Rev. Stat. § 24-72- that daily activity sheets, after the deletion of 308(1). certain exempt information, were not exempt Compilations of criminal history are open from disclosure under FOIA. under Colo. Rev. Stat. § 24-72-303. There are no specific provisions or re- Victims’ identities, insofar as they are ported authorities regarding 911 tapes. part of police records, are public records In Gifford v. FOIC, 227 Conn. 641, 631 subject to inspection. The only exception is A.2d 252 (1993) the Supreme Court ruled the name of victims of sexual assault. Colo. that reports prepared by police in connection Rev. Stat. § 24-72-304(4). with arrests were not required to be disclosed Confessions are public records if procured to the public during the pendency of the re- during an official action by a criminal justice lated criminal prosecution, but Connecticut agency. law other than the FOIA law requires limitedsafety of a person involved in an investigation. Confidential informants’ identities and data to be released regarding arrests.However, the name of any victim of certain statements are subject to withholding if There are no specific provisions or deci-crimes defined by various provisions of the their disclosure may harm an ongoing inves- sions regarding mug shots, and are presumedPenal Code relating to sex offenses may be tigation or cause other injury to the public open unless a specific exemption applies.withheld at the victim’s request, or at the interest. Colo. Rev. Stat. § 24-72-305(5).request of the victim’s parent or guardian See Pretash v. City of Leadville, 715 P.2d 1272 District of Columbiaif the victim is a minor. Cal. Gov’t Code § (Colo. App. 1985). Open records law in the District of Co-6254(f)(2). Records of security procedures may be lumbia derives primarily from the District If a confession is part of an agency’s withheld under Colo. Rev. Stat. § 24-72- of Columbia Freedom of Information Actinvestigatory records compiled for correc- 305(5) if disclosure would be contrary to of 1974. D.C. Code Ann. § 2-531 et seq.tional or law enforcement purposes, this the public interest. (“D.C. Act”).information is not required to be disclosed. Mug shots taken at the time of arrest The privacy exemption, D.C. CodeHowever, once introduced into evidence in a should be deemed open because they are Ann. § 2-534(a)(2), investigatory recordscriminal proceeding, other than a grand jury “photographs . . . which are made, maintained exemption, id. at § 2-534(a)(3), and arsonproceeding, public access to the information or kept by any criminal justice agency for reporting exemption, id. at § 2-534(a)(9), mayis presumed absent a constitutional showing use in the exercise of functions required or apply. Complaints and other specified policejustifying closure. authorized by law,” and they are records of records shall be open for public inspection The identity of confidential informants an “official action.” Colo. Rev. Stat. § 24- under D.C. Code Ann. § 5-113.06.and any statements made by them are ex- 72-303(1), §§ 24-72-302(4) & (7). The mayor’s office has ruled that whenpressly exempt from disclosure by the CPRA. a defendant has pleaded guilty to a chargeCal. Gov’t Code § 6254(f). Connecticut and a videotaped confession was never used Police techniques or “security proce- As per the Connecticut Freedom of Infor- against him in court, the privacy rights ofdures” are expressly exempt from disclosure. mation Act (“FOIA,” codified as amended at the police officers involved and the victim’sCal. Gov’t Code § 6254(f). Conn. Gen. Stat. §§ 1-200 through 1-241), family bring the videotape under the privacy Access to mug shots appears to be discre- law enforcement records are exempt if exemption of the D.C. act. The defendanttionary. See Cal. Op. Att’y Gen. No. 03-205 “compiled in connection with the detection was found to have forfeited his privacy(2003)(sheriff has discretion to furnish copies or investigation of crime, if the disclosure rights, and parts of the tape could be madeof mug shots to public or media but once of said records would not be in the public public that merely identified him as thereleased a copy must be made available to interest because it would result in the dis- perpetrator. In re Appeal of Molly Pauker,all who make request). In California, law closure of (A) the identity of informants not Esq., (unnumbered FOIA App.) (Office ofenforcement agencies routinely make mug otherwise known or the identity of witnesses the Mayor, Nov. 3, 1989).shots available to the press. not otherwise known whose safety would be No sex offender registration informa- endangered or who would be subject to threat tion is available as a public record exceptColorado or intimidation if their identity was made those records made public by regulations Accident reports filed with the Motor Ve- known, (B) signed statements of witnesses, promulgated by the Mayor. D.C. Codehicle Division are public records under Colo. (C) information to be used in a prospective Ann. § 22-4017.Rev. Stat. §§ 42-4-1610 and 42-1-206. law enforcement action if prejudicial to such Records of official actions, including action, (D) investigatory techniques not Delawarerecords of arrests on a “police blotter,” are otherwise known to the general public, (E) Delaware open records law derives bypublic records under Colo. Rev. Stat. §§ arrest records of a juvenile, which shall also statute through the state’s Freedom of24-72-303 and 24-72-304. include any investigatory files, concerning Information Act. 29 Del. C. § 10001 et seq. 911 tapes are subject to release. See Colo. the arrest of such juvenile, compiled for law (the “Act” or “FOIA”).Rev. Stat. §§ 24-72-303 and 24-72-304. enforcement purposes, (F) the name and ad- Statutory exemptions related to criminal For police investigatory records, public dress of the victim of a sexual assault . . . or records and files are poorly worded andaccess is discretionary with the custodian, (G) uncorroborated allegations . . .” Conn. contradictory. Police agencies are willingColo. Rev. Stat. § 24-72-305(5), who may Gen. Stat. § 1-210(b)(3) to release general statistical information butdeny inspection if disclosure would be “con- In Calibey v. State Police, Do. #FIC 86-310 are reluctant to release individual files, oftentrary to the public interest.” See Pretash v. City (Jan. 28, 1987), the Freedom of Information relying on the investigatory records excep-of Leadville, 715 P.2d 1272 (Colo. App. 1985). Commission held that a report of a fatal tion. See 29 Del. C. § 10002(g)(3).The statute does not differentiate between motor vehicle accident was not exempt from Accident reports are exempt only if theactive and closed investigations. disclosure under FOIA. disclosure would constitute an invasion of Arrest records are open under Colo. In Town of Trumbull v. FOIC, 5 Conn. L. personal privacy or constitute an investiga-Rev. Stat. § 24-72-303(1), unless sealed by Trib. No. 34 (1979), the Superior Court held tive file. See 29 Del. C. § 10002(g)(3); 29Page 8 The Reporters Committee for Freedom of the Press Winter 2008
  • Del. C. § 10002(g)(6). secs. 905.26 119.011(3)(c). Police blotters are not Juvenile records traditionallyexempt; 911 tapes may not have been treated differently frombe exempt. other records within the criminal Investigatory records in justice system. The Florida Juve-active investigations are ex- nile Justice Act exempts most in-empt under the third exemp- formation pertaining to juveniles.tion the investigatory files Fla. Stat. sec. 39.045(5). However,exemption. See 29 Del. C. § Fla. Stat. sec. 39.045(9) authorizes10002(g)(3). Closed records a law enforcement agency to re-may also still be exempt. See lease for publication the recordsDel. Op. Att’y Gen., No. 99- of a child taken into custody underib14 (Nov. 5, 1999). certain limited circumstances, Arrest records are ex- such as where the juvenile has beenempt under open records taken into custody for a violationexemption four except an of law which would be a felony ifindividual’s own record. 29 committed by an adult.Del. C. § 10002(g)(4). Criminal histories, like other Past practice suggests non-exempt public records, arethat compilations of criminal subject to the statutory disclosurehistories may be released. requirements of the Public Re-Bd. of Managers of Delaware cords Law, Chapter 119. However,Justice Info. Sys. v. Gannett courts have the power to seal or ex-Co., 808 A.2d 453 (Del. punge records containing criminalSuper. 2002). history information under statuto- As a matter of practice, rily specified circumstances. Fla.investigatory reports are Stat. sec. 943.058.released to victims, though The name, sex, age and addressthe Act appears to treat the of the victim of a crime is openinformation as exempt. See to public inspection under the29 Del. C. § 10002(g)(3). Public Records Law. Fla. Stat. sec. Confessions are exempt 119.011(3)(c)(2), but other infor-under both exemption three mation concerning victims, suchand exemption four. See 29 as the victim’s telephone numberDel. C. §§ 10002(g)(3), (4). or address or personal assets, is Information on confiden- AP Photo by Michael Probst exempt, Fla. Stat. 119.03(3)(s).tial informants is exempt if Information from active investigations can be withheld under Information revealing thethe disclosure would con- most state open records acts. “substance of a confession” of astitute an endangerment to person arrested or of witness listslocal, state or national welfare and security lic inspection certain criminal intelligence exchanged pursuant to the provisions of Fla.under open records exemption five. 29 Del. and investigative records and files. Fla. Stat. R. Crim. P. 3.220 is not subject to the dis-C. § 10002(g)(5). sec. 119.07(3)(f). The police investigative/ closure requirements until such time as the Police techniques could be exempt under intelligence records exemption only applies charge is finally determined by adjudication,open records exemptions five. 29 Del. C. when such records are active. Fla. Stat. sec. dismissal or other disposition. Fla. Stat. sec.§ 10002(g)(5), (16). See also Del. Op. Att’y 119.07(3)(b). Criminal intelligence/inves- 119.07(3)(k).Gen., No. 05-ib19 (Aug. 1, 2005). tigative information is considered to be Information revealing the identity of Mug shots may be exempt under exemp- “active” while such information is directly confidential informants or sources is exempttion four. 29 Del. C. § 10002(g)(4). related to pending prosecutions or appeals. from the provisions of Chapter 119. Fla. Stat. Fla. Stat. sec. 119.011(d). Once the convic- sec. 119.07(3)(c).Florida tion and sentence have become final, the Information revealing police surveillance The Florida open records law is codified exemption no longer applies. State v. Kokal, techniques, procedures or personnel, andat Fla. Stat. sections 119.01 to 119.15. As a 562 So.2d 324 (Fla. 1990). Records disclosed information revealing undercover person-general rule, accident reports are subject to to a criminal defendant are not exempt as nel of any criminal justice agency is notchapter 119 disclosure requirements. How- investigative or intelligence information. subject to public inspection. Fla. Stat. sec.ever, police accident records often encompass Fla. Stat. sec. 119.011(3)(c)(5). 119.07(3)(d).exempt information, such as confessions or The following information relating to ar- Mug shots are subject to public in-investigatory data. rest records is not considered to be criminal spection unless they are exempt criminal Police blotters are subject to public intelligence/investigative information and is intelligence information or are otherwiseinspection. available for inspection: the name, sex, age exempt. Fla. Stat. § 119.011(1); Fla. Stat. § To the extent that records of 911 tapes and address of a person arrested; the time, 119.07(3)(b).are not otherwise statutorily exempt from date and location of the incident and of thethe mandates of the Public Records Law arrest; the crime charge; documents given or Georgia(Chapter 119) (i.e., confessions, etc.), they required by law or agency rule to be given The Georgia Open Records Act (“theare subject to public inspection. to the person arrested; and information and Act”) specifically provides that “initial police The Legislature has exempted from pub- indictments except as provided in Fla. Stat. arrest reports and initial incident reports”Winter 2008 Poiice Records Page 9
  • other instances it may cite Section 92F-13(3), might threaten to frustrate a legitimate which excepts “[g]overnment records that, government function or interfere with law by their nature, must be confidential in order enforcement measures. for the government to avoid the frustration The UIPA has no specific general ex- of a legitimate government function.” Haw. ception for information compiled for law Rev. Stat. § 92F-13(3). enforcement purposes that would, if dis- Monthly supplemental homicide reports closed, identify a confidential informant or prepared by county policy departments must reveal confidential investigative techniques. be made available for public inspection and Nevertheless, the OIP has exempted from copying. Supplemental Homicide Reports, disclosure agency records that would inter- Office of Information Practices (“OIP”) fere with investigative or law enforcement Op. Ltr. No. 94-1 (Mar. 11, 1994). The procedures of agencies.are public records and must be disclosed. reports contain information concerning Standards of police conduct are notO.C.G.A. § 50-18-72(a)(4). the age, gender, and race of the victim(s) confidential unless they concern purely In 1999, the General Assembly limited and offender(s); the weapon used; and the internal matters. Disclosure of case-specificaccess to individual Uniform Motor Vehicle circumstances of the homicides. police techniques, on the other hand, mayAccident reports to those parties named in Copies of traffic citations are available be protected if disclosure would frustratethe report or those that otherwise have a for public inspection and copying. Public the legitimate government function of law“need” for the report as defined by statute. Access to City and County of Honolulu enforcement. See Public Access to GeneralO.C.G.A. § 50-18-72(4.1). Traffic Citations, OIP Op. Ltr. No. 95-20 Order Nos. 528, 601, 602, 604, 606, 804, The Act permits access to public records of (Aug. 21, 1995). and 805, OIP Op. Ltr. No. 95-13 (May 8,an emergency “911” system, except informa- Police blotters, chronological records 1995).tion which would reveal the name, address, of police arrests, are public records when Mug shots are government records for theor telephone number of a person placing the they concern adults. Public Access to Police purposes of the UIPA. Police Departmentcall. O.C.G.A. § 50-18-72(a)(16). Blotter Information, OIP Op. Ltr. No. 91-4 Mug Shots, OIP Op. Ltr. No. 94-12 (June The Act exempts records of pending (Mar. 25, 1991). 29, 1994). However, when an arrest recordinvestigations. O.C.G.A. § 50-18-72(a)(4). In Burnham Broad. Co. v. County of Ha- which includes the mug shots is expunged,Records related to closed or terminated waii, Civ. No. 92-0161 (Haw. 3d Cir. Mar. the mug shots must remain confidential. OIPinvestigations are therefore subject to dis- 1992), a Hawaii court found that a county Op. Ltr. 03-09 (June 26, 2003). Moreover,closure under the Act. government agency was required to release after one year from the date of a person’s The Act specifically provides that initial 911 tapes and that its failure to do so cre- arrest, the mug shot is protected from dis-police arrest reports are public records. ated agency liability for the media plaintiffs’ closure unless: (1) an active prosecution ofO.C.G.A. § 50-18-72(a)(4). court costs and attorneys’ fees, but privacy the charge is pending, or (2) the arrest results Under O.C.G.A. § 35-3-34(d.2) the concerns could outweigh the public’s inter- in a conviction.public may obtain access to records of est in agency accountability when 911 tapesin-state felony convictions through the involve living individuals. IdahoGeorgia Crime Information Center or lo- Investigative reports are confidential if Police records are subject to disclosurecal law enforcement agencies. See Napper their disclosure would likely interfere with pursuant to Idaho Code § 9-335, whichv. Georgia Television Co., 257 Ga. 156, 356 agency law enforcement activities, frustrate generally exempts active and inactive inves-S.E.2d 640 (1987). a legitimate government function, or reveal tigatory records. The Act exempts records the disclosure of deliberative processes. An examination of all Accident reports should be available towhich would reveal the identity of a confiden- factors is necessary to determine whether the public under the terms of the statute,tial source. O.C.G.A. § 50-18-72(a)(3). such reports must be disclosed. See, e.g., RFO although they are not expressly discussed. The Act does not exempt records of 98-004 - Honolulu Police Department; Re- Police blotters should also be availableconfessions, records identifying crime vic- quest for Opinion on The Honolulu Advertiser; to the public under the terms of the statute,tims, records revealing police techniques, Request for Internal Affairs Reports, OIP Op. although they are not expressly discussed.or mug shots. Ltr. No. 98-5 (Dec. 20, 1998). Investigatory 911 tapes are handled in an erratic man- records regarding closed criminal investiga- ner by Idaho law enforcement agencies.Hawaii tions should be made available after redac- Although there is no express exception that Open records law in Hawaii is represented tion of information identifying the victim, applies to such tapes, agencies claim thatby the state’s Uniform Information Practices witnesses and defendant’s Social Security release of the tapes would constitute anAct (“UIPA”). Act 262, 14th Leg., Reg. Sess. number, home address, and home telephone invasion of privacy.(1988), reprinted in 1988 Haw. Sess. Laws number. Release of Police Records, OIP Ltr. Records of active investigations compiled473 (codified at Haw. Rev. Stat. ch. 92F Op. No. 99-2 (Apr. 5, 1999). for law enforcement purposes by a law(Supp. 1991). Section 831-3.1 prohibits the dissemi- enforcement agency are generally exempt, The government may justify a denial nation by the state of any record of arrest Idaho Code § 9-335(1), but only to the extentof a request for police records by invoking that is not followed by a valid conviction, that the production of such records would:particularly one of two UIPA exemptions. It convictions which have been expunged, (a) Interfere with enforcement proceedings;may cite Section 92F-13(2), which excepts convictions in which no sentence is imposed, (b) deprive a person of a right to a fair trial“[g]overnment records pertaining to the and misdemeanor convictions after the lapse or an impartial adjudication; (c) constituteprosecution or defense of any judicial or of 20 years. Cf. Request for Written Opinion an unwarranted invasion of personal privacy;quasi-judicial action to which the State or Regarding Disclosure of Arrest Records, OIP (d) disclose the identity of a confidentialany county is or may be a party, to the extent Op. Ltr. No. 97-5 (June 10, 1997). source or confidential information furnishedthat such records would not be discoverable.” Haw. Disclosure of a confession while a case only by the confidential source; (e) discloseRev. Stat. § 92F-13(2) (emphasis added). In is still open may be denied if its disclosure investigative techniques or procedures; or (f)Page 10 The Reporters Committee for Freedom of the Press Winter 2008
  • endanger the life or physical safety of law make the records exempt. See 5 ILCS or provide information to administrative,enforcement personnel. Records of inactive 140/7(1)(b)(v). investigative, law enforcement or penalinvestigations shall be disclosed unless the Police blotters and chronologically main- agencies.” See 5 ILCS 140/7(1)(b)(v). Thisdisclosure would violate the same provisions. tained arrest records are open. See 5 ILCS includes community liaisons to the policeIdaho Code § 9-335(2). 140/7(1)(d)(I). Arrest information is also to department. Chicago Alliance for Neighbor- Arrest records should be available for be provided to the news media under the hood Safety v. City of Chicago, 348 Ill. App. 3dpublic inspection and generally there is little arrest reports provision of the State Records 188, 808 N.E. 2d 56, 283 Ill. Dec. 506 (1stdifficulty in obtaining such records. Act, 5 ILCS 160/4a; the article of the Civil District, 2004). Also, releasing the identity The identity of a crime victim is generally Administrative Code of Illinois concerning of victims of most crimes probably would notkept confidential by law enforcement agen- the Department of State Police, 20 ILCS be considered an invasion of privacy undercies until the filing of a criminal complaint. 2605/2605-302; the Local Records Act, 50 the common law.This is based upon Confessions areagency claims that possibly closed untilthe victim’s privacy admitted in court. Seerights must be pro- 5 ILCS 140/7(1)(c)(I)tected. There is no to (iii).express exemption in Records relatedthe statutes, however, to confidential in-which specifically formants and po-exempts the name of lice techniques area crime victim from closed. See 5 ILCSdisclosure. 140/7(1)(c)(iv) and Confessions are (v).not specifically ad- The Act does notdressed in the Idaho specifically addressopen records statutes. mug shots, but theyMost law enforce- are generally open.ment agencies andprosecutors consider Indianaconfessions to be “in- Although thevestigative records” Indiana Access toand therefore exempt Public Records Actfrom disclosure, un- does not specificallyless and until the address written re-confession is filed ports of accidentwith the court or investigations (asintroduced in open opposed to the nota-court. tion of an accident Names of confi- on a police blotter),dential informants Ind. Code § 9-26-2-are exempt from 3 provides a right ofdisclosure pursuant access to reports cre-to Idaho Code § 9- ated under the motor335(1). vehicle code. I n f o r m a t i o n Access to mug shots is inconsistent, even from town to town in the same Police agencies state. The City of Los Angeles reportedly refuses to release mug shots unlessconcerning police investigators decide a picture will help with a criminal investigation, but must maintain andtechniques is exempt neighboring jurisdictions and county and state officials often release them. disclose a daily logfrom disclosure pur- Top, from left: Nick Nolte, Mel Gibson, Hugh Grant; bottom, from left: Paris Hilton, or record that listssuant to Idaho Code Nicole Richie, Lindsay Lohan. suspected crimes,§ 9-335(1). accidents or com- Mug shots should be, and generally are, ILCS 205/3b; and the Campus Security Act, plaints, as well as the time, substance andavailable to the public under the public 110 ILCS 12/15. location of all complaints or requests forrecords act. 911 tapes are not specifically exempt, so assistance received by the agency, as well as they are open unless, possibly, a law enforce- victim information in most cases. Ind. CodeIllinois ment agency invokes exemptions under 5 § 5-14-3-5(c). Open records law in Illinois is codified ILCS 140/7(1)(b)(c), (e) or (v). The law does not specifically addressprimarily through the state’s Freedom of Investigatory records are closed. See 5 911 tapes. Presumably these tapes wouldInformation Act at 5 ILCS 140/1 to 11. ILCS 140/7(1)(c)(i) to (viii). The statute be available unless they were deemed to be Traffic accident reports, rescue reports makes no distinction between active and investigatory records. See also Ind. Code §and records that identify witnesses to traf- closed files. 16-31-2-11.fic accidents may be provided by agencies Compilations of criminal histories are The statute leaves it to the discretion of(except in a case for which a criminal inves- closed except for specific exemptions listed in the police agency whether it will release ortigation is ongoing) without constituting the Act. See 5 ILCS 140/7(1)(d)(I) to (v). hold confidential its investigatory records.a clearly unwarranted per se invasion of The Act seals the identity of victims and Ind. Code § 5-14-3-4(b)(1). There is nopersonal privacy, which would otherwise other “persons who file complaints with distinction made between open or closedWinter 2008 Poiice Records Page 11
  • Iowa Code § 21.5(1)(g) and (h). Kentucky Mug shots are not addressed in the act As per the Kentucky Open Records Act but are presumably public. (“ORA”), police records relating to ongo- ing or prospective investigations are exempt Kansas from disclosure. Once the investigation is Open records law in Kansas is codified completed, the records are open to inspec- through the Kansas Open Records Act, tion. See KRS 61.878(1)(h). Police records K.S.A. 45-215, et seq., (“KORA”). of juveniles are exempt. See 93-ORD-42 Accident reports are open to the public. (discussing exemption mandated by KRS K.S.A. 45-217(b). See also Op.Atty.Gen. 610.320(3)). 79-17 (1979)). Accident reports are presumably open. Police blotters are open to the public. Police blotters are presumably open unlessinvestigations. K.S.A. 45-217(b). The incident based “the disclosure of the information would The following information must be made reporting system code sheet used by law harm the agency by revealing the identityavailable on arrest: identifying information enforcement agencies is a public record that of informants not otherwise known or by(including name, age and address), the must be disclosed upon request. Op.Atty. premature release of information to becharges on which the arrest is based, and Gen. 93-9 (1993). used in a prospective law enforcement ac-information relating to the circumstances 911 tapes are not specifically addressed, tion or administrative adjudication.” KRSof the arrest (such as the time and location but presumably open unless part of a criminal 61.878(1)(h).of the arrest, the arresting officer, and the investigation. K.S.A. 45-221(a)(10). 911 tapes are generally open; nondis-arresting law enforcement agency). Ind. Investigatory records are generally closed closure of any tape “must be justified withCode § 5-14-3-5(a). to the public. specificity and with reference to the par- The statute requires the disclosure of However, a district court may order dis- ticular statutory exemption upon which thethe name and age of any victim, unless the closure in an action brought under K.S.A. agency relies.” 94-ORD-144.victim is a victim of a sex crime. Ind. Code 45-222 (civil remedies to enforce KORA) if Arrest records are open. 93-ORD-42.§ 5-14-3-5(c)(3)(B). the court finds that disclosure, among other An administrative regulation forbids the There is no specific provision on the things, is in the public interest and would release of “[c]entralized criminal historydisclosure of confessions, confidential not compromise investigations. K.S.A. 45- records maintained by the Kentucky Jus-informants, records containing police tech- 221(a)(10). tice Cabinet . . . except as provided in KRSniques, or mug shots. These would fall in Records compiled in the process of detect- 17.150.” 200 KAR 1:020 § 4(6).the general category of discretionary police ing, preventing or investigating violations of Records identifying victims are openinvestigative records. criminal law are not open. Mug shots are not under the records law. See 94-ORD-133. open. Op.Atty.Gen. 87-25 (1987). Confessions are open unless they wouldIowa Documents stating charges filed against disclose informants or release information to Open records law by statute in Iowa can individuals in municipal court and specifying be used later “in a prospective law enforce-be found in chapter 22 of the state code. scheduled court dates are open. Op.Atty. ment action or administrative adjudication.” Accident reports filed by law enforce- Gen. 87-145 (1987). Jail books listing persons KRS 61.878(1)(h). Records identifyingment officers (not individuals involved in in jail are open. Op.Atty.Gen. 87-25 (1987). confidential informants are exempt. See KRSthe accident) are available to any party to an However, correctional records pertaining 61.878(1)(h).accident, the party’s insurer, agent, attorney to an identifiable inmate are exempt from Mug shots are presumably open.or the attorney general upon written request disclosure. K.S.A. 45-221(a)(29). Op.Atty.and payment of $4.00 fee. Iowa Code § Gen. 84-124 (1984). Op.Atty.Gen. 82-226 Louisiana321.271. 70 Op. Att’y Gen. 420, 421. (1982). As per the Louisiana Public Records Act, Investigative records, including blotter Juvenile offender records generally can- accident reports are available to parties toinformation, is confidential, but the date, not be disclosed unless a K.S.A. 38-1608(a) accidents, insurers, attorneys, and “news-time, specific location, and immediate facts statutory exception applies. Op.Atty.Gen. gathering organizations.” La. Rev. Stat. Ann.and circumstances surrounding a crime or 95-94 (1995). § 44:4(24); § 32:398(H), (K)incident shall not be kept confidential, except The name, address, phone number or Police blotters and booking informationin those unusual circumstances where disclo- any other information which would specifi- summaries shall always be open for public in-sure would plainly and seriously jeopardize cally identify the victim of a sexual offense, spection. Id.; La. Rev. Stat. Ann. § 44:3(A)(4);an investigation or pose a clear and present pursuant to K.S.A. 21-3501 et seq., may Op. Att’y Gen. 78-1159. The informationdanger to the safety of an individual. Iowa not be revealed. K.S.A. 45-221(a)(10)(F). contained in an outstanding warrant is publicCode § 22.7(5). Information concerning other victims is record, and is not outweighed by privacy Records of closed investigations are ordi- not specifically addressed and is presumably interests. Op. Att’y Gen. 95-294.narily treated by law enforcement as public, open for inspection unless part of a criminal Despite their historical treatment assubject to applicable exceptions. investigation. K.S.A. 45-221(a)(10). public records (Ops. Att’y Gen. 97-233, 911 tapes are presumably public informa- Confessions are not specifically ad- 96-89, 93-152, 92-209, 90-576), the statetion, but information about criminal activity dressed, but presumably open unless they First Circuit recently held that 911 tapeswhich peace officers receive from third par- are part of a criminal investigation. K.S.A. are protected under the “privileged com-ties is confidential. State Ex Rel. Shanahan v. 45-221(a)(10). munications between a health care providerIowa District Court, 356 N.W. 2d 523, 528 The identity of an undercover agent and patient” exception in the Public Records(Iowa 1984). or informant is confidential. K.S.A. 45- Act. Hill v. East Baton Rouge Parish Dep’t of Records of current and prior arrests are 221(a)(5). Emergency Med. Servs., No. 2005 1236, 2005public records. Iowa Code § 22.7(9). Mug shots are not open. Op.Atty.Gen. La. App. LEXIS 2611 (La. App. 1st Cir. Dec. Records of police techniques are closed. 87-25 (1987). 22, 2005) (citing La. R.S. § 44:4.1(B)(5)).Page 12 The Reporters Committee for Freedom of the Press Winter 2008
  • AP Photo by The Express-TimesBethlehem, Pa., Police Commissioner Francis R. Donchez pulls a criminal records file at police headquarters for a reporterwho requested information as part of a 2005 statewide FOIA audit. Records of active investigations are reveal investigative techniques is insufficient reasonable possibility that public release orexempt, except for the initial police report. to justify the privilege. inspection of the reports or records wouldLa. Rev. Stat. Ann. § 44:3(A)(l), (4). Records An opinion of the Attorney General interfere with law enforcement or invadeof closed investigations are public records suggests that mug shots are not available personal privacy.only after pending or reasonably anticipated for inmates or ex-offenders without special Arrest records are available. 16 M.R.S.A.litigation is finally adjudicated or settled. La. authorization from the Department of Cor- §§ 611-622.Rev. Stat. Ann. § 44:3(A)(l). rections. Op. Att’y Gen. 94-338. The identity of a victim generally receives Arrest records are exempt until the ar- no special treatment under the FOAA statuterested party has been adjudged or pleads Maine or any related law. However the identity ofguilty. La. Rev. Stat. Ann. § 44:3. Op. Att’y Open records law in Maine is codified minor victims of sexual offenses is confi-Gen. 97-417. through the state’s Freedom of Access Act dential and prosecutors shall refrain from Compilations of criminal histories are (“FOAA”) in sections 401-410 of Title 1 of unnecessary pre-trial publicity that mightpublic information, if they do not pertain the Maine Revised Statutes Annotated. reveal the minor’s identity. 30-A M.R.S.A.to a pending or reasonably anticipated Accident reports are generally avail- § 288.criminal prosecution. See Op. Att’y Gen. able. The availability of a confession is con-77-1370 and State v. Sanders, 357 So. 2d When a police blotter is used, it is gener- trolled by the availability of investigatory1089 (La. 1978). ally an available record. records of the offense involved. 16 M.R.S.A. The act does not require that victims Transcripts of 911 calls are available to §§ 611-622.be identified in the initial investigation the public. The transcript will not contain Records revealing confidential infor-report. Nor does it prohibit disclosure in names, addresses or telephone numbers mants are not available. 16 M.R.S.A. §§that report of the identity of victims except of persons placing the call or receiving as- 611-622.for victims of sexual crimes. La. Rev. Stat. sistance. Upon good cause shown by the Records describing police techniques areAnn. § 44:3(A)(4)(b). requester, a court may release the audio tape. confidential. 16 M.R.S.A. § 614(1)(G). Confessions are exempt during pendency 25 M.R.S.A. § 2929. Mug shots are available. 16 M.R.S.A.of criminal litigation. La. Rev. Stat. Ann. § Records of active and inactive investiga- §§ 611-622.44:3(A)(l). tions are subject to the same statute. Pursuant Records identifying confidential infor- to 16 M.R.S.A. § 614(1), reports or records Marylandmants are exempt. La. Rev. Stat. Ann. § that contain intelligence and investigative in- Open records law in Maryland is codified44:3(A)(2). formation and that are prepared by, prepared through the state’s Public Information Act Records disclosing police techniques are at the direction of or kept in the custody of (“PIA”), Md. Code Ann., State Gov’t §§exempt. La. Rev. Stat. Ann. § 44:3(A)(3). But a criminal justice agency are confidential 10-611 to 10-628.a general assertion that certain documents and may not be disseminated if there is a Accident reports are closed to attorneysWinter 2008 Poiice Records Page 13
  • dential informants may be closed to disclo- Names of confidential informants are sure pursuant to § 10-618(f)(2)(d). normally not available. Massachusetts rec- Records relating to or disclosing police ognizes an absolute informant privilege, or other law enforcement investigative Worthington v. Scribner, 109 Mass. 487 (1872); techniques may be closed pursuant to § District Attorney v. Flatley, 419 Mass. 507, 10-618(f)(2)(v). 510, 646 N.E.2d 127, 129 (1995), except in Mug shots that are part of police records the case of non-confidential information and are subject to disclosure. § 10-616(h). informants, Commonwealth v. Congdon, 265 Mass. 166, 174, 165 N.E. 467, 469 (1928). Massachusetts Information on police techniques and Accident reports are routinely available. procedures is available if released by police. See General Law c. 66, § 10(a). Otherwise, probably not. See G.L. c. 4, § 7or their agents or employees for marketing Police logs listing, in chronological or- cl. 26(f); c. 39, § 23B(4).or soliciting legal services, or to anyone der, responses to valid complaints, crimes There are no statutory or case law restric-working on behalf of such. § 10-616(h)(2). reported, names and addresses of persons tions on release of mug shots, although theOtherwise, accident reports are open for arrested and charges against such persons, investigatory exception may apply in somepublic inspection. are public records. G.L. c. 41, § 98F. circumstances. Generally, release is prob- Police blotters are not exempt from 911 tapes are available subject to inves- ably discretionary with law enforcementdisclosure, because they are not records of tigatory exceptions. authorities.investigations or investigatory files. See §§ Investigatory records for active investiga-10-616(h), 10-618(f). tions are normally not available. G.L. c. 4, § Michigan 911 tapes are public records, except for 7, cl. 26(f). Records of closed investigations Open records law in Michigan is codifiedthose portions exempted from disclosure are available if disclosure would not “prob- through the state’s Freedom of Informationfor other reasons. 71 Op. Att’y Gen. 288 ably so prejudice the possibility of effective Act (“FOIA”), Mich. Comp. Laws Ann.(1986). law enforcement that such disclosure would (“MCLA”) §§ 15.231 - .246. Investigatory records may be closed not be in the public interest.” G.L. c. 4, § The names and addresses of personsunder specified circumstances. § 10-618(f). 7, cl. 26(f). who had been injured, potentially injuredThe State’s Attorney is neither required nor A police log record of arrests is open. or killed in automobile accidents are subjectauthorized to disclose a police investigative G.L. c. 41, § 98F. to the FOIA privacy exemption. Baker, P.C.report or any part of it that was used for Criminal Offense Record Investigation v. City of Westland, 245 Mich. App. 90, 627grand jury proceedings. Office of the State (CORI) exemptions may apply to certain re- N.W.2d 27 (2001)Prosecutor v. Judicial Watch Inc., 356 Md. cords relating to criminal histories, including Police incident reports are generally118, 133, 737 A.2d 592, 600 (1999). Records criminal charges, arrests, pre-trial proceed- public unless the public body can justifyof active investigations conducted by the ings or other judicial proceedings where the the application of a FOIA exemption. SeeAttorney General, a State’s Attorney, city information sought was recorded as a result Evening News Ass’n v. City of Troy, 417 Mich.or county attorney, police department or of the initiation of criminal proceedings. 481, 339 N.W.2d 421 (1983).sheriff may be closed. § 10-618(f). Once an G.L. c. 6, § 167-178B. If information being According to the Attorney General, a lawinvestigation is closed, investigatory files are requested does not concern a crime for which enforcement agency may refuse to release thesubject to disclosure, based upon an amend- incarceration is possible, then the record name of a person who has been arrested, butment to the comparable FOIA exemption. is public. CORI law also does not apply to not charged, in a complaint or information,See Fioretti, 351 Md. at 83, 716 A.2d at 267; evaluative information (records primarily with commission of a crime, on the groundsBowen v. Davison, 135 Md. App, 252, 761 used in connection with bail, pre-trial or that disclosure would result in a “clearlyA.2d 1013, 1015 (2000). post-trial release proceedings, sentencing, unwarranted invasion of privacy.” 1979-80 Arrest records are open, because they are correctional and rehabilitative planning, Op. Att’y Gen. 255, 282 (1979). Similarly, anot records of investigations or investigatory probation, or parole) or intelligence informa- public body may withhold records showingfiles. 63 Op. Att’y Gen. 543 (1978); see also tion (records and data compiled by a criminal the final disposition of an arrest record of§ 10-616(h), 10-618(f). justice agency for the purpose of criminal a person found not guilty or where there Compilations of criminal histories are investigation). See G.L. c. 6, § 167. was a decision not to prosecute, becauseopen, since they are not records of investiga- Criminal records may be obtained if disclosure would constitute a clearly un-tions or investigatory files. See §§ 10-616(h), evidence is offered that the public inter- warranted invasion of an arrested person’s10-618(f). est in disseminating the requested CORI right to privacy in the absence of a public Victims’ names and addresses are open to outweighs the personal privacy interests of interest in his or her record. 1979-80 Op.disclosure under the PIA. See §§ 10-616(h), the subjects whose information is sought. Att’y Gen. at 282-83.10-618(f). However, the custodian of such a Such information can be obtained only Since a sex crime complainant’s past sexualrecord would be required under the PIA to from the Criminal History Systems Board history would concern intimate details of aconsider not only the privacy interests of the in Boston. highly personal nature, it would be exemptvictim, but also assertions about the public Names of victims of rape and sexual assault from disclosure as an unwarranted invasion ofinterest in disclosure that are made by the are confidential. G.L. c. 41, § 97D. personal privacy, as would the complainant’srequester. 77 Op. Att’y Gen. 227 (1992). No statutory restriction applies to confes- address and telephone number and the names Disclosure of confessions, if part of an sions but they are normally not available. It of parents and their address and telephoneinvestigatory file, may be denied. § 10-618(f). is unethical for a lawyer or District Attorney number. Pennington v. Washtenaw CountyOtherwise, the confession is a non-exempt to make pre-trial announcement or release Sheriff, 125 Mich. 556, 336 N.W.2d 828and, therefore, producible part of the police of such information. Massachusetts Rules (1983).record. § 10-616(h). of Professional Conduct Rule 3.6 (cited in Confessions are presumably open. Records relating to or disclosing confi- Supreme Judicial Court Rule 3:07). Records identifying confidential in-Page 14 The Reporters Committee for Freedom of the Press Winter 2008
  • formants are generally exempt.See MCLA § 15.243(1)(b)(iv) andMCLA § 15.243(1)(s)(i). The FOIA does not create anyprohibition against the release offile photographs taken of criminalsuspects by law enforcement offi-cials. 1979-80 Op. Att’y Gen. 468,470 (1979). However, while suchphotographs are public recordsunder the FOIA, they may in somecircumstances be exempt -- as wherea clearly unwarranted invasion ofprivacy may occur in the releaseof such photographs (MCLA §15.243(1)(a)). Nevertheless, bookingphotos have been held not to be en-titled to exemption from disclosureunder the FOIA where the subjectinvolved had been arrested, chargedin open court and was awaiting trial.Detroit Free Press v. Oakland CountySheriff, 164 Mich. App. 656, 418N.W. 2d 124 (1987). AP Photo BY Bob MacDonnell, The Hartford Courant Universal health care protesters were handcuffed and arrested in front of the Conn. governor’s office in the State Capitol in 2007.Minnesota Open records law in Minnesota isprimarily codified through the Min- the investigation is active. Subdivision 7 also 2 and 6. If the statement or confession wasnesota Data Practices Act (“MGDPA”). allows any person to bring action to compel collected while the investigation was active, it In regard to police-related records, access access to investigative data. would probably be protected from disclosure.to public records is governed by the Section “Inactive investigative data” are public. § 13.82, subd. 7.entitled “comprehensive law enforcement Along with the expiration of formal time Section 13.82, subd. 17(c) protects thedata.” § 13.82. Section 13.82 attempts to periods, an investigation becomes inactive identity of informants “if the agency reason-categorize specific actions and information when the agency decides “not to pursue the ably determines that revealing the identify ofthat involve law enforcement functions and case.” § 13.82, subd. 7. the informant would threaten the personalthat would, in most cases, form the nucleus Section 13.82, subd. 2 identifies “arrest safety of the informant.”of official actions. For example, subdivision 2 data” that are public. Such data include the Section 13.82, subd. 25 indicates thatof the section identifies public “arrest data.” actions of the agency, such as resistance “deliberative processes or investigativeSubdivision 3 requires that “request for encountered or pursuit, the charge, arrest, techniques of law enforcement agencies areservice data,” or data documenting service warrants or other legal basis for the action, confidential.”requests by the public, be accessible. Subdivi- the identity of the person arrested or cited Booking photographs, meaning the “im-sion 4 allows access to “response or incident and all matters relating to the custody of age” taken by law enforcement officials todata,” which document action taken by the that person. identify someone in connection with theirlaw enforcement agency. Criminal histories, or “rap sheets,” arrest, are public. § 13.82, subd. 26. There is no specific provision that deals have, as a matter of practice, always beenwith accident reports. Since accidents would available either with respect to an arrested Mississippinormally fall within arrest data or response to person or generally from the Bureau of Ap- As per the state’s Public Records Act,incident data, and since response or incident prehension (BCA). Section 13.87 specifies police records are generally permitted todata include “responses to traffic accidents,” the criminal history data that are available be closed by law, but frequently open indata contained on accident reports would from the BCA. practice. See § 45-29-1. Accident reportsgenerally be public. § 13.82, subd. 4. Section 13.82 has specific subdivisions are open. “Police blotter” data are not separately protecting the identity of victims of child Access to police blotter information, 911identified in the Act. To the extent that a “po- abuse or neglect or vulnerable adult mal- tapes, and confessions depends on the con-lice blotter” would include arrest data, such treatment from disclosure. Section 13.82 tents of the report, and whether any of theas agency action, resistance encountered, also protects the identities of victims of material is subject to other exemptions.charge or other legal basis for the action, criminal sexual conduct, child abuse and vul- Criminal case files and records related toidentity and place of custody of arrestee, it nerable adults. Subdivision 17 also protects those cases are generally exempt from the act.would be public. those other victims or witnesses who have Op. Att’y Gen. March 2, 2001 to Carter. Generally, audio recordings of 911 requested that they not be identified. Arrest records are open.telephone calls are not public. A written There is no specific provision within § Records that may identify victims are stilltranscript is available upon request. § 13.82, 13.82 that deals with access to “statements” open, if they are not investigatory record.subd. 4. or “confessions.” If the statement is given at Records that would reveal confidential Section 13.82, subd. 7 protects “inves- or about the time of arrest and is documented informants may be closed.tigative data” collected to prepare a case as a part of the initial report on the incident, Records revealing police techniquesagainst a person as confidential, as long as it would likely be public under § 13.82, subd. may be closed. See Op. Att’y Gen. Sept. 7,Winter 2008 Poiice Records Page 15
  • formation that is “reasonably likely to pose a (Reissue 1995). clear and present danger to the safety of any No specific statutory provision addresses victim, witness, undercover officer or other records that identify victims, confidential person.” Mo.Rev.Stat. § 610.100.3. informants, or police techniques. To the extent that such information is part of law Montana enforcement investigatory files, it may be As mandated through a state constitu- withheld from disclosure. tional provision and open records statutes, Confessions admitted in evidence at a police records including accident reports, court hearing closed to the public pursuant police blotters, 911 tapes, and initial arrest to Nebraska Supreme Court guidelines may records are all public criminal justice infor- be sealed. mation. See Barr v. Great Falls Intern. Airport Mug shots are public records. Neb. Rev.1995 to Jerry A. Evans (policy on vehicle Authority, 326 Mont. 93, 107 P.3d 471 (2005) Stat. § 29-3521(1) (Reissue 1995).searches). (holding arrest record from Alaska contained Mug shots are generally open. in national computer database was public Nevada criminal justice information). For arrest Active investigation records are not spe-Missouri records, also see Barr v. Great Falls Intern. cifically closed by statute, but the balancing Open records law in Missouri is primarily Airport Authority, 326 Mont. 93, 107 P.3d 471 test set forth in Donrey of Nevada v. Bradshaw,codified through the Sunshine Law, Mo.Rev. (2005) (holding arrest record from Alaska 106 Nev. 630, 798 P.2d 144 (1990), generallyStat. §§ 610.010-.035, Arrest Records contained in national computer database was weighs in favor of closure. Inactive investiga-Law, Mo.Rev.Stat. §§ 610.100-.126), and public criminal justice information). tion records are more likely to be consideredthe Public Records Law, Mo.Rev.Stat. §§ Investigative records, active and closed, open under the balancing test.109.180-.190. computation of criminal histories, confes- Compilations of criminal histories are Certain information regarding accident sions, confidential informants, and police closed to the general public, but must bereports may be available if maintained on a techniques are all confidential criminal disclosed to any “reporter for the electroniclaw enforcement agency’s daily log. Mo.Rev. justice information subject to the balanc- or printed media in his professional capacityStat. § 300.125. ing test. See also Montana Criminal Justice for communication to the public.” N.R.S. Local law enforcement agencies that Information Act of 1979, Mont. Code 179A.100(5)(l).maintain a daily log or record that lists sus- Ann. §§ 44-5-101 to -515 (1987); Engrav Records such as accident reports, policepected crimes, accidents, or complaints are v. Cragun, 769 P.2d 1224 (1989); 42 A.G. blotters. 911 tapes, arrest records, confes-required to make certain limited information Op. 119 (1988). sions, mug shots are presumably open.available to the public, including the time, Records identifying victims are presumablysubstance and location of all complaints or Nebraska open but some police agencies are slow torequests for assistance and information relat- As codified within Nebraska Revised Stat- release victim information.ing to the underlying occurrence. Mo.Rev. utes, accident reports appear to be available Records that would identify confiden-Stat. § 610.200. for inspection in the absence of a specific tial informants may be closed. Protecting 911 tapes are inaccessible to the general exemption stating otherwise. confidential sources is specifically listed aspublic. Mo.Rev.Stat. § 610.150. Police blotter information was specifi- a balancing test factor in Donrey of Nevada Investigation reports are closed records cally made public record by Neb. Rev. Stat. v. Bradshaw, 106 Nev. 630, 798 P.2d 144until the investigation becomes “inactive.” § 29-3521(2) (Reissue 1995). (1990).Mo.Rev.Stat. § 610.100.2. The term “inac- Copies of 911 tapes are occasionally with- Records revealing police techniques maytive” is defined to include a decision by a held, although there is no statutory authority be closed. Protecting confidential policelaw enforcement agency not to pursue a for such withholding. Some law enforcement techniques is specifically listed as a balancingcase, the expiration of the applicable statute agencies take the position that all tapes are test factor in Donrey of Nevada v. Bradshaw,of limitations, or the finality of convictions investigatory records. 106 Nev. 630, 798 P.2d 144 (1990).and exhaustion of all appeals. Mo.Rev.Stat. “Records developed or received by law§ 610.100.1(3). enforcement agencies and other public bod- New Hampshire All arrest reports and incident reports are ies charged with duties of investigation or The New Hampshire “right to know”public records. Mo.Rev.Stat. § 610.100.2. examination of persons, institutions, or busi- law is contained within RSA Ch. 91-A, asHowever, if a person who is arrested is not nesses, when the records constitute a part of amended, and is entitled “Access to Publiccharged with an offense within thirty days, the examination, investigation, intelligence Records and Meetings” (hereinafter “Stat-or if the charge is dismissed or the person information, citizen complaints or inquiries, ute”).is found not guilty, official records of the informant identification, or strategic or The status of investigatory records isarrest and of any confinement incidental to tactical information used in law enforce- controlled by the law enforcement records ofthat arrest become closed records. ment training” are exempt from disclosure. the Federal FOIA, 5 U.S.C. Sec. 552(b)(7), Law enforcement agencies are afforded The public records law does not distinguish adopted by Lodge v. Knowlton, 118 N.H. 574discretion to withhold arrest, incident, or between active and closed files. (1978), meaning that they are presumablyother reports or records if they contain in- Arrest records are available for public open unless they interfere with investigationsformation that is “reasonably likely to pose a inspection as a part of criminal history or invade personal privacy.clear and present danger to the safety of any information, notwithstanding the language Arrest records, by custom and practice,victim, witness, undercover officer or other of the exception for investigatory records. are considered public, unless the governmentperson.” Mo.Rev.Stat. § 610.100.3. See Neb. Rev. Stat. §§ 29-3506; 29-3520 can establish an exemption under Lodge v. Law enforcement agencies are afforded (Reissue 1995). Knowlton, 118 N.H. 574 (1978).discretion to withhold arrest, incident, or Compilations of criminal histories are The statute does not explicitly coverother reports or records if they contain in- public records. Neb. Rev. Stat. § 29-3520 accident reports or police blotters, but thePage 16 The Reporters Committee for Freedom of the Press Winter 2008
  • general practice is thatthese records are public. There are no reporteddecisions involving 911tapes, identities of victims,confessions, confidentialinformants, police tech-niques or mug shots. The status of criminalhistory record informa-tion is governed by theState Security and PrivacyPlan.New Jersey As per the state’sOpen Public RecordsAct (“OPRA”), accidentreports are public recordsunder N.J.S.A. 39:4-131. The Appellate Divisionhas held that a 911 tape wasa government record, didnot constitute a criminalinvestigatory record andwas thus accessible, butnoted that the decisionwas based on the particularcircumstances in the case. Two Arkansas state troopers look over an accident reconstruction sketch in 2008. Another trooper AP Photo by Corey S. Krasko, The Southwest Times RecordSerrano v. South Brunswick was killed in the accident.Tp., 358 N.J. Super. 352(App. Div 2003). If an arrest has been made, information as torney General’s Compliance Guide and N.J.S.A. 47:1a-1.1 exempts from the to the name, address and age of any victim unpublished court decisions.definition of government record and thus is required to be released unless the victim’s Investigatory records are confidentialfrom access criminal investigatory records family has not been notified or if release of if the records reveal confidential sources,which are defined as a record not required the information would jeopardize the victim’s methods, information or individuals accusedby law to be made, maintained or kept on safety or impair an on-going investigation. but not charged with a crime, without regardfile that is held by a law enforcement agency N.J.S.A. 47:1A-4. to whether the investigation is active orpertaining to any criminal investigation or Information regarding a confession is a closed. § 14-2-1(D), NMSA 1978.related civil enforcement proceeding. confidential criminal investigation record Arrest records are open; see generally § Criminal investigatory records are gener- until utilized in court proceedings or until 29-10-7 and § 14-2-1(D), NMSA 1978.ally confidential and only information re- the investigation is closed. Compilations of criminal histories aregarding the type of crime, time, location and Information regarding a confidential presumably open; see generally § 29-10-7type of weapon may be released. In the case informant generally is privileged unless and § 14-2-1(D), NMSA 1978.of a closed investigation, while the records are otherwise ordered by a court. See N.J.S.A. Records that would identify victims arenot statutory public records, police reports 2A:64A-28; Shuttleworth v. City of Camden, generally open, but subject to closure if dis-and internal police records are considered 258 N.J. Super. 573, 610 A.2d 985 (App. closure reveals confidential sources, methodscommon law public records which may be Div. 1992). or information that would seriously interferesubject to disclosure following an in camera N.J.S.A. 47:1A-1 exempts from the with the effectiveness of an investigation.review and balancing of interests by the court. definition of a government record security Records of confessions are not clearlySee Shuttleworth v. City of Camden, 258 N.J. measures and surveillance techniques which, open; there is no precedent available.Super. 573, 610 A.2d 985 (App. Div. 1992); if disclosed, would create a risk to the safety Records that would reveal confidentialAsbury Park Press Inc. v. Borough of Seaside of person’s property. informants are not public; § 14-2-1(D),Heights, 246 N.J. Super. 62, 586 A.2d 870 Police photographs and mug shots are NMSA 1978.(Law Div. 1990). exempt from disclosure under Kean Execu- Records containing police techniques When an arrest is made the public is en- tive Order No. 123 (1985) and thus exempt are not public if disclosure would reveal atitled to the suspect’s name, age, residence, under OPRA. confidential method; § 14-2-1(D), NMSAoccupation, marital status, the charges, 1978.the amount of bail and the circumstances New Mexico Mug shots are open; see generally § 29-surrounding arrest, but not to prior arrest As per the state’s Inspection of Public 10-7 and § 14-2-6(E), NMSA 1978.record. N.J.S.A. 47:1A-4. Records Act, accident reports are open. § Access to the State Criminal His- 29-10-7(5), NMSA 1978. New Yorktory Record Information File is limited to Police blotters are open; § 29-10-7(2), Open records law in New York derivesspecifically authorized agencies. N.J.A.C NMSA 1978. from the state’s Freedom of Information13:59-1.1. 911 tapes are open, pursuant to the At- Law (“FOIL”).Winter 2008 Poiice Records Page 17
  • An agency may deny access to records or tain any provision specifically relating to portions thereof that are compiled for law confessions. Ordinarily, the existence of enforcement purposes and which, if dis- a confession becomes a matter of public closed, would identify a confidential source record when it is the subject of a pre-trial or disclose confidential information relating suppression hearing or when it is offered in to criminal investigations. N.Y. Pub. Off. evidence at trial. Law § 87(2)(e)(iii) (McKinney 1988). The public records law provides that An agency may deny access to records information pertaining to confidential in- or portions thereof that are compiled for formants is within the definition of “records law enforcement purposes and which, if of criminal investigations,” which are not disclosed, would reveal criminal investi- public records. G.S. § 132-1.4(b). gative techniques or procedures, except The public records law does not address Leather-bound books of “police activity routine techniques and procedures. N.Y. the status of documents disclosing “policelogs” in which police officers recorded all Pub. Off. Law § 87(2)(e)(iv) (McKinney techniques.” However, it is anticipated thatof their work-related activities are agency Supp. 1988). the Attorney General would take the positionrecords subject to disclosure under FOIL, There are no cases on whether mug shots that information concerning law enforce-even though officers themselves maintained must be made available. ment techniques is part and parcel of the lawphysical possession of the activity logs. Gould enforcement agency’s “investigative files,”v. New York City Police Dep’t, 89 N.Y.2d 267, North Carolina and thus is not a matter of public record.653 N.Y.S.2d 54 (1996). Section 132-1.4 of the General Statutes Mug shots are not explicitly treated Accident reports are open, but names and governs criminal investigations and intelli- under the public records law. Photographsaddresses of accident victims can be deleted gence information records, which generally are included within the definition of publicon privacy grounds. are not public records. Certain information, records, but they are also included within Police blotters are presumably open. however, is public, including the time, date, the definition of records of criminal inves- The Committee on Open Government location, and nature of an apparent viola- tigations, which would make them exempthas expressed the opinion that 911 tapes can tion of the law; the name, sex, age, address, from disclosure. In practice, many lawbe viewed as records compiled in the ordi- employment, and alleged violation of law enforcement agencies routinely releasenary course of business and as such, should of a person arrested, charged, or indicted; mug shots.generally be subject to disclosure. Comm. the circumstances surrounding an arrest;Open Gov’t, FOIL-AO-3734 (1985); FOIL- and the contents of “911” calls, except for North DakotaAO-3540 (1984). information that would identify the caller. North Dakota Century Code § 44-04- An agency may deny access to records G.S. § 132-1.4. 18.7 provides that “active criminal intel-or portions thereof that are compiled for Motor vehicle accident reports are ligence information and active criminallaw enforcement purposes and which, if public records and are routinely available investigative information” are exempt fromdisclosed, would interfere with law enforce- from the Division of Motor Vehicles. G.S. the open records law. Such informationment investigations or judicial proceedings. § 20-166.1. does not include: the arrestee description,N.Y. Pub. Off. Law § 87(2)(e)(i) (McKinney There is no requirement that law en- including name, date of birth, address, race,1988). forcement keep a “police blotter” or “log.” sex, physical description, and occupation of Arrest records are generally open. The Public Records Law does not contain arrestee; facts concerning the arrest, includ- The FOIL does not directly exempt from any exclusion or exemption for such docu- ing the cause of arrest and the name of thedisclosure compilations of criminal histories. ments. arresting officer; conviction information;The New York State Division of Criminal Many details from arrest records are disposition of all warrants; a chronologicalJustice Services, which compiles criminal public information. G.S. § 132-1.4(c). The list of incidents, including initial offensehistories, is governed by a statutory directive public records law expressly provides that report information showing the offense,to adopt measures to assure the security and absent a court order sealing them, the fol- date, time, general location, officer, and aprivacy of identification and information data lowing records are public: arrest and search brief summary of what occurred; a crimein its possession. N.Y. Exec. Law § 837(8) warrants that have been returned by law summary; radio log; and general registers,(McKinney 1982). The division has relied enforcement agencies, indictments, criminal including jail booking information.upon this statutory provision to promulgate summons, and nontestimonial identification Accident reports and police blotters areregulations exempting information in its orders. G.S. § 132-1.4(k). open under N.D.C.C. § 44-04-18.7.criminal history files from disclosure on Criminal histories as reflected in the Names, addresses, and telephone num-the basis that disclosure would result in an records maintained in the offices of the vari- bers that must be provided to a 911 publicunwarranted invasion of personal privacy. 9 ous clerks of court are public records. G.S. service answering point under N.D.C.C.N.Y.C.R.R. 6150.4(b)(6) (1978). 7A-109(a) specifically states that records § 57-40.6-06, may be used only for verify- Convictions records are available under maintained by clerks of court are open to ing the location or identity, or both, forFOIL. See Geames v. Henry, 173 A.D.2d 825, public inspection. By contrast, criminal response purposes only, of a person calling572 N.Y.S.2d 635 (2d Dep’t 1991). history records stored in the computerized a 911 answering point for emergency help. Records including victim information are Police Information Network (PIN) are not N.D.C.C. § 57-40.6-07.generally open; one court rejected a sheriff’s open to public inspection. Criminal intelligence and investigativepractice of withholding reports of offenses Names of victims and complaining information that is not considered ‘active’when the person reporting the offense indi- witnesses disclosed in arrest documents, can be closed to the extent that the infor-cated a preference that the incident not be charges, indictments, applications for search mation is personal information. When anreleased to media. Johnson Newspaper Corp. warrants and similar documents are matters investigation is inactive with no expectationv. Call, 115 A.D.2d 335, 495 N.Y.S.2d 813 of public record. G.S. § 132-1.4(c)(6). that it will recommence, there is no ongoing(4th Dep’t 1985) The public records law does not con- investigation and information regarding thePage 18 The Reporters Committee for Freedom of the Press Winter 2008
  • investigation is open to the public. N.D.C.C. Oklahoma closure might be withheld under ORS§ 44-04-18.7. A chronological list of all traffic accidents, 192.501(3)). The state law does not specifically address including date, time and general location of Investigatory records may be exemptwhether records including victim informa- incident as well as the name of the officer and under ORS 192.501(3). Arrest recordstion, confessions, confidential informants, a brief summary of what occurred is public are generally subject to disclosure. ORSor police techniques are open. information. 51 Okla. Stat. Supp. 2005, § 192.501(3). Mug shots are open under N.D.C.C. § 24A.8.A.5. However, collision reports are Compilations of criminal histories may44-04-18.7. not public records under the act. be available under special circumstances Jail blotter or booking information pursuant to ORS 181.540; specificallyOhio is open. 51 Okla. Stat. Supp. 2005, § ORS 181.540(b) concerning computerized Routine incident reports are not exempt. 24A.8.A.8. criminal offender information, which allowsState ex rel. Steckman v. Jackson, 70 Ohio St. While not specifically addressed, 911 some public availability under rules adopted3d 420, 639 N.E.2d 83 (1994). tapes would appear to fall under records of by the state police. “Nine-one-one tapes in general . . . are public calls recorded or radio logs. 51 Okla. The name of a crime victim is subject topublic records which are not exempt from Stat. Supp. 2005, §§ 24A.8.6 and 7. disclosure. ORS 192.501(3)(d). Criminaldisclosure and must be immediately released Investigatory records of the attorney victim compensation records are not subjectupon request.” State, ex rel. Cincinnati En- general, county and municipal attorneys are to disclosure, under ORS 147.115.quirer v. Hamilton County, 75 Ohio St. 3d confidential except as required by law to be Under ORS 192.501(3), confessions are374, 662 N.E.2d 334 (1996). made public. 51 Okla. Stat. 2001, § 24A.12. not available from law enforcement agencies Ohio law makes no distinction between Investigatory files are not listed among the as investigatory records until evidence of theactive and inactive or closed investigations, files which must be released by law enforce- confession has been submitted in a judicialand the exemption applies even where au- ment agencies and thus are presumptively proceeding or the confession is voluntarilythorities have decided not to file charges. closed unless required by law to be made disclosed by the agency. However, his in-State ex rel. Thompson Newspapers Inc. v. public or where a court finds that the pub- formation may be sought under Oregon’sMartin, 47 Ohio St. 3d 28, 546 N.E.2d lic interest or the interest of an individual open courts constitutional provision, Article939 (1989); State ex rel. Polovischak v. outweighs the reason for denial. 51 Okla. I, section 10.Mayfield, 50 Ohio St. 3d 51, 552 N.E.2d Stat. Supp. 2005, § 24A.8.B. See also 1999 Confidential informant information gen-635 (1990). Okla. Op. Att’y Gen. 58. However, a public erally is not subject to disclosure. See ORS However, investigatory records may lose record cannot be removed from the public 192.502(3) and ORS 192.501(3).exemption status after an investigation leads domain by placing it in an investigatory file. Investigatory information compiled forto a prosecution, and all appeals and post- 51 Okla. Stat. 2001 § 24A.20. criminal law purposes is generally exempt.conviction relief are exhausted. SeeState ex A description of arrestees and facts con- ORS § 192.501.rel. Steckman v. Jackson, 70 Oho St.3d 420, cerning arrests are open. 51 Okla. Stat. Supp. Mug shots are open, subject to ORS639 N.E.2d 83 (1994). 2005 §§ 24A.8.A.1, 2, 5, 6. 192.501(3). Arrest records are open. State ex rel. Names of persons convicted of criminalOutlet Communications Inc. v. Lancaster Police offenses are public. 51 Okla. Stat. Supp. PennsylvaniaDept., 38 Ohio St. 3d 324, 528 N.E.2d 175 2005 § 24A.8.A.3. Police records are generally unavailable(1988). Upon the request of a victim or the district if they fall within the “investigation excep- Criminal histories compiled by the attorney, the court may order the victim’s tion” of the Right to Know Act. However,Federal Bureau of Investigation or by the personal information kept confidential if there are some circumstances where recordsOhio Bureau of Criminal Identification necessary to protect the victim or victim’s may be available.and Investigation are not available to the immediate family and if the information is Accident reports are open, at least sopublic. 42 U.S.C. § 3789g; Ohio Rev. Code not necessary to a defense. 22 Okla. Stat. long as they do not serve as a confidential§ 109.57. 2001 § 984.2. basis for further action. City of Philadelphia Arrest histories compiled by local govern- Confessions have not been specifically v. Ruczynski, 24 Pa. D.&C.2d 478 (Phila.ments are public records. State ex rel. Lippitt exempted by statute. Cty. C.P. 1961).v. Kovacic, 70 Ohio App. 3d 525, 591 N.E.2d No specific statutory authority protects Police blotters specifically have been422 (1991). a confidential informer unless the informer held to be “public” records, but the request Information about victims possessed by objects to the release of information and the must be directed to the proper custodian. Seethe police department is not exempt. Pin- agency makes a good faith finding that its Commonwealth v. Mines, 680 A.2d 1227 (Pa.kava v. Corrigan, 64 Ohio App. 3d 499, 581 release could be damaging to the objecting Cmwlth. 1996); Lebanon News Publ’g Co. v.N.E.2d 1181 (1990). individual. 1986 Okla. Op. Att’y Gen. 39; City of Lebanon, 451 A.2d 266 (Pa. Cmwlth. Confessions are not exempt per se, but see also 12 Okla. Stat. 1991, § 2510. 1982). Whether they would be subject to anycan be withheld to protect the defendant’s Oklahoma law does not address whether exception in the law must be determined onconstitutional right to a fair trial. State ex rel. police techniques and mug shots are open. a case-by-case basis. Police incident reportsVindicator Printing Co. v. Watkins, 66 Ohio are also public records under the act. TapcoSt. 3d 129, 609 N.E.2d 551 (1993). Oregon Inc. v. Township of Neville, 695 A.2d 460, 465 The identities of confidential informants Disclosure of arrest information or a re- (Pa. Cmwlth. 1997).is exempt where promises of confidential- port of a crime may be delayed if a clear need 911 tapes may not be “public records”ity are reasonable. Ohio Rev. Code §§ is shown, including protection of the victim under the act if they do not fulfill the require-149.43(A)(2)(a), (A)(2)(b). or complaining party. O.R.S. 192.501(3). ment that they form the basis for an agency’s Confidential, non-routine police inves- Accident reports and police blotters are decision. See North Hills News Record v. Towntigative techniques are exempt. Ohio Rev. subject to disclosure. of McCandless, 722 A.2d 1037 (Pa. 1999).Code § 149.43 (A)(2)(c). 911 tapes are subject to disclosure (if Investigatory records are non-public Mug shots are not exempt. investigatory material is included, dis- under the act. The Act does not distinguishWinter 2008 Poiice Records Page 19
  • a confidential source or the information may be redacted from police reports if the furnished by such a source, would disclose release of the information would endanger investigation or prosecution techniques or the life, health or property of any person. procedures or law enforcement guidelines, S.C. Code Ann. § 30-4-40(a)(3)(D). or could reasonably be expected to endanger There is no specific exemption regarding the life or safety of an individual. R.I. Gen. confessions, but a law enforcement agency Laws § 38-2-2(4)(i)(D). may claim that premature release would Adult initial arrest records are public. See interfere with a prospective law enforcement R.I. Gen. Laws § 38-2-2(4)(i)(D). action. S.C. Code Ann. § 30-4-40(a)(3). Compilations of criminal histories are The identity of confidential informants presumably open, subject to qualifica- not otherwise known is sheltered from tions as set forth in Exemption (D); no mandatory disclosure. S.C. Code Ann. §between active and closed investigatory specific exemption. See R.I. Gen. Laws § 30-4-40(a)(3).files. 38-2-2(4)(i)(D). Investigative techniques not known Arrest records must be disclosed on re- Records identifying victims are open, sub- outside the government are not subject toquest, for a fee, to individuals, after certain ject to qualification as set forth in Exemption mandatory disclosure. S.C. Code Ann. §specified “outdated” information, such as (D). See R.I. Gen. Laws § 38-2-2(4)(i)(D). 30-4-40(a)(3).arrests when there has been no disposition Confessions are open, subject to qualifica- There is no specific exemption for mugafter 18 months, has been expunged. 18 Pa. tion as set forth in Exemption (D). See R.I. shots, and they would be available unlessCons. Stat. § 9122. Gen. Laws § 38-2-2(4)(i)(D). the premature release would interfere with State police regulations and policy Records that could reasonably be expected a prospective law enforcement action. S.C.statements regarding the responsibilities to disclose a confidential source are exempt Code Ann. § 30-4-30(a)(3).of bureaus and divisions and regarding the from disclosure pursuant to Exemption (D).use of deadly force do not fall within the See R.I. Gen. Laws § 38-2-2(4)(i)(D). South Dakotainvestigation exception and thus are acces- Records that would disclose investigation Accident reports are open. S.D.C.L. §§sible to the public. or prosecution techniques are exempt from 32-34-13, 13.1. disclosure pursuant to Exemption (D). See Police blotters are traditionally open.Rhode Island R.I. Gen. Laws § 38-2-2(4)(i)(D). See S.D.C.L. § 9-18-2 regarding records of Open records law in Rhode Island derives There is no provision regarding mug municipal officers generally.from the state’s Access to Public Records shots; they are presumably open subject to It is not clear whether 911 tapes areAct (“APRA”). R.I. Gen. Laws §§ 38-2-1 the above stated restrictions. See R.I. Gen. required to be open.et seq. Laws § 38-2-2(4)(i)(D). Investigatory records are closed, whether Records for criminal law enforcement active or inactive. S.D.C.L. § 23-5-10.are generally excluded from disclosure by South Carolina Arrest records are open in practice. AlsoExemption (D) to the extent that disclosure Automobile accident reports are public, see S.D.C.L. § 9-18-2 regarding records ofcould interfere with criminal investigations but may not be used for commercial solicita- municipal officers generally.or enforcement proceedings, would deprive tion. S.C. Code Ann. § 56-5-1275. Compilations of criminal histories area person of a fair trial or impartial proceed- Police reports that disclose the nature, closed. S.D.C.L. § 23-6-14.ings, could reasonably be expected to dis- substance and location of any crime or alleged Records that include victim informationclose a confidential source, would disclose crime reported as having been committed are are generally open, but victims in sex-crimesinvestigation or prosecution techniques or public. S.C. Code Ann. § 30-4-50(A)(8). can suppress their names until an arraign-procedures, or could endanger the life or 911 tapes are available under the defi- ment. S.D.C.L. § 23A-6-22.safety of an individual. R.I. Gen. Laws § nition of public records, which includes Confessions are presumably closed during38-2-2(4)(i)(D). “tapes.” S.C. Code Ann. § 30-4-20(c). the investigative stage. Accident reports are presumably open; Active investigative records may be It is uncertain whether records identify-there is no specific exemption. sheltered from disclosure if the public ing confidential informants are open, but Any records reflecting the initial arrest disclosure of the records would interfere see S.D.C.L. § 23A-35-4.1 regarding theand any complaint against an adult filed in with a prospective law enforcement action. temporary sealing of an affidavit in supportcourt by a law enforcement agency are ex- S.C. Code Ann. § 30-4-40(a)(3); Turner v. of a search warrant.pressly not exempt pursuant to Exemption North Charleston Police Dept., 351 S.E.2d 583 Access to mug shots is restricted. S.D.C.L.(D). See R.I. Gen. Laws § 38-2-2(4)(i)(D). (S.C. App. 1984). The Supreme Court has § 23-5-7. All telephone calls and all tapes shall rejected the argument that such records,remain confidential and be used only for even when the investigation is closed, can be Tennesseethe purpose of handling emergency calls automatically exempt; instead, each report As per the state’s Public Records Act,and public safety. See R.I. Gen. Laws §§ must be examined to determine if portions accident reports are generally open. T.C.A.39-21.1-17. are subject to the mandatory disclosure § 55-10-108. Records relating to investigations of requirements of the act. Newberry Observer Police blotters are presumably open.crimes are exempt only to the extent that v. Newberry County Comm’n. on Alcohol and 911 tapes are presumably open. See Op.the disclosure could interfere with criminal Drug Abuse, 417 S.E.2d 870, 20 Media L. Att’y Gen. No. 93-65 (Nov. 29, 1993).investigation or enforcement proceedings, Rep. 1420 (S.C. 1992). Investigatory records are closed. Tenn. R.would deprive a person of a fair trial or Arrest records are subject to disclosure. Crim. P. 16. The state high court has ruledimpartial adjudication, could reasonably Criminal histories are available from the that closed investigative files not relevant tobe expected to constitute a unwarranted South Carolina Law Enforcement Division. pending or contemplated criminal action areinvasion of personal privacy, could reason- S.C. Ann. § 23-3-130. not excepted by Rule 16.ably be expected to disclose the identity of Information regarding victims of crime Arrest records are presumably open,Page 20 The Reporters Committee for Freedom of the Press Winter 2008
  • and compilations of criminal histories are “as a rule, . . . the names of complainants tapes were presumed public.presumably open. are public information. . . . Only in unusual Access to investigatory records may be Records identifying victims are presum- instances, such as where the complainant restricted if release of such records (1) rea-ably open. was the victim of a sexual assault may the sonably could be expected to interfere with Confessions are presumably open, if not identity of a complainant be withheld.” Tex. the investigation; (2) reasonably could bepart of an active investigatory file. Att’y Gen. ORD-482 (1987). expected to interfere with audits, disciplinary, Mug shots, records identifying confiden- A synopsis of a reported confession gener- or enforcement proceedings; (3) would createtial informants, or records describing police ally is exempt. See Houston Chronicle Publ’g Co. a danger of depriving a person of a right to atechniques are presumably open unless con- v. City of Houston, 531 S.W.2d 177, 185 (Tex. fair trial or impartial hearing; (4) reasonablytained in an active investigation file. Civ. App.-Houston [14th Dist.] 1975). could be expected to disclose the identity Generally the identity of confidential of a confidential source; or (5) reasonablyTexas informants is exempt. See Houston Chronicle could be expected to disclose confidential Accident reports revealing the date of Publ’g Co., 531 S.W.2d at 187. investigative or audit techniques. Utah Codethe accident, the persons involved, and its Internal law enforcement detection and Ann. § 63-2-304(9) (1997).location along with towing records and 911 investigation methods are generally exempt Arrest warrants after issuance are publiccall records are privileged and confidential. under section 552.108. Ex parte Pruitt, 551 records; however, a court may restrict accessTex. Gov’t Code Ann. § 550.065. S.W.2d 706, 710 (Tex. 1977). to the warrant prior to service. Utah Code Police dispatch reports are public infor- In cases that are still under active investi- Ann. § 63-2-301(2)(m) (2004).mation that must be released. City of Lubbock gation, section 552.108 exempts mug shots Criminal history records and warrantv. Cornyn, 993 S.W.2d 461, 465-66 (Tex. from disclosure. Op. Tex. Att’y Gen. No. arrest information are available to criminalApp.-Austin 1999, no pet.). OR94-087 (1994). Several attorney general justice agencies and some noncriminal justice The police “blotter,” “showup sheet,” and decisions have concluded that when the mug agencies and individuals for specific pur-arrest sheet are not exempt from disclosure shot was taken in connection with an arrest poses. The information “may only be usedwhile the offense report, arrest record, for which the arrestee was subsequently for the purposes for which it was providedand personal history are exempt. Houston convicted and the case is closed, informa- and may not be further disseminated.” UtahChronicle Publ’g Co. v. City of Houston, 531 tion may be withheld only if its release will Code Ann. § 53-10-108 (2004).S.W.2d 177, 185 (Tex. Civ. App.-Houston unduly interfere with law enforcement or Victim names are presumed public, al-[14th Dist.] 1975). crime prevention. Tex. Att’y Gen. ORD- though access may be restricted if release Tape recordings of calls made to 911 616 (1993). would constitute a clearly unwarrantedconstitute public information. Tex. Att’y invasion of personal privacy. See Utah CodeGen. ORD-519 (1989). Such records are Utah Ann. §§ 63-2-103(13)(a)(ii) (1997), 63-2-subject to public disclosure even if they are Automobile and watercraft accident 301(2)(g), 63-2-302(2)(d) (2004).held by a “911 network district” established reports prepared by operators of vehicles There appears to be no Utah statuteunder the Emergency Communication Dis- involved in an accident, by witnesses to an governing access to confessions, althoughtrict Act. Tex. Health & Safety Code Ann. accident, or by police officers investigating law enforcement agencies may withhold§§ 772.201-772.300 (formerly Tex. Rev. an accident, may be disclosed to certain confessions if release would interfere withCiv. Stat. Ann. art. 1432d); Tex. Att’y Gen. groups and individuals, including the news an on-going investigation. See Utah CodeORD-519 (1989). media. Utah Code Ann. §§ 41-6-40(3)(a), Ann. § 63-2-304(9)(a) (2004). The act specifically exempts records deal- 73-18-13(3) (2004). Information provided Records that reasonably could be expect-ing with law enforcement agency investiga- to the press or member of the broadcast ed to disclose a confidential police informanttions. § 552.108. This exception generally news media, however, may only include the are protected from public disclosure. Utahcovers offense reports and personal history name, age, sex and city of residence of each Code Ann. § 63-2-304(9)(d) (2004).and arrest records maintained for internal person involved in the accident, the make Records that reasonably could be ex-use. See Houston Chronicle Publ’g Co. v. City and model year of each vehicle involved in pected to disclose investigative techniquesof Houston, 531 S.W.2d 177, 185 (Tex. Civ. the accident, whether each person involved not generally known outside of governmentApp.-Houston [14th Dist.] 1975, writ ref’d in the accident had insurance coverage, the are protected from public disclosure. Utahn.r.e.); Op. Tex. Att’y Gen. No. OR94-142 location of the accident, and a description Code Ann. § 63-2-304(9)(e) (2004).(1994). Section 552.108(a)(1) of the act ex- of the accident. Utah Code Ann. § 41-6- A jail booking photograph is a recordempts information and internal records held 403(d) (2004). under GRAMA. See KSL-TV v. Juab Countyby a law enforcement agency relating to an The chronological logs and initial contact Sheriff’s Office, No. 98-01 (Utah State Rec.active investigation. Specifically, informa- reports of law enforcement agencies are Comm. Feb. 20, 1998) (citing Utah Codetion that would interfere with the detection, generally public records. Utah Code Ann. Ann. § 63-2-103(18)). Because such re-investigation or prosecution of a crime. § 63-2-301(2)(g) (2004). cords are not specifically exempted under Section 552.108(a)(2) of the act exempts The state high court in Fox Television GRAMA, these records are presumed public.from disclosure information concerning Stations Inc. v. Clary held that two tape See id. (citing Utah Code Ann. § 63-2-201(2)an investigation that concluded in a result recordings of 911 telephone calls placed (2004)).other than a conviction or a deferred adju- by a woman as she was being shot by herdication. estranged husband were public records Vermont “Arrest sheets” containing an arrestee’s and ordered the Sheriff’s Department to Open records law in Vermont is codifiedname, race, age, place of arrest, names of release complete, unredacted copies of the at 1 V.S.A. §§ 315-320.arresting officers and offense for which sus- 911 tapes. Id. The court concluded that the Accident reports, police blotters and ar-pect is arrested are required to be released. interests favoring restriction of access, if rest records are open.Houston Chronicle Publ’g Co. v. City of Houston, any, did not clearly outweigh the interests 911 tapes are presumed open, unless they531 S.W.2d 177 at 179-80,188. favoring access. Since no other statutory or are part of an investigation. The Texas attorney general has noted that constitutional exemptions applied, the 911 Investigatory records in active investi-Winter 2008 Poiice Records Page 21
  • Investigative information need not but Specific investigative records, the non- may be disclosed unless disclosure is pro- disclosure of which is essential to law en- hibited or restricted under § 19.2-11.2. Va. forcement or to protect a person’s right to Code Ann. § 2.2-3706(D). privacy, are exempt from disclosure. RCW Chronologically listed records of com- 42.17.310(1)(d) (2000). Once the investi- pleted arrests must be disclosed. 1977-1978 gation is complete, the records are open. Va. Op. Atty. Gen. 486 (January 13, 1978). Hearst Corp. v. Hoppe, 90 Wn.2d 123, 580 Criminal history records shall be dis- P.2d 246 (1978). seminated only to the individuals or groups The CRPA restricts access to pre-convic- listed in Va. Code Ann. § 19.2-389. tion and nonconviction records generally The identity of a victim may be disclosed but not post-conviction records. Records unless prohibited by § 19.2-11.2, or by an- of entry are accessible on a chronologicalgations are closed; but records in closed other section. Va. Code Ann. § 2.2-3706(D). basis, and records of those currently in theinvestigations are presumed open. Victim identity, provided to or obtained by criminal justice system are not exempt. Compilations of criminal histories are staff in a rape crisis center or a program for RCW 10.97.presumed open, to the extent comprised of battered spouses may be withheld. Va. Code The CRPA allows access to records ofpast convictions. Ann. § 2.2-3705.2(1). convictions and records of those currently Records identifying victims are presumed Confessions are not addressed directly, in the criminal justice system; however,open, unless minors are involved. but are often characterized as “evidence” records on charges that have not resulted in Confessions are closed if part of an in- not subject to disclosure by prosecutors and conviction or other adverse disposition andvestigation. law enforcement agencies. for which formal proceedings are over are Records identifying confidential infor- Records that would identify anonymous closed to the public. RCW 10.97.050.mants are presumed closed. informants need not be disclosed. Va. Code The identity of witnesses, victims and Records revealing police techniques Ann. § 2.2-3706(F)(4). people who file criminal or quasi-criminalare open if related to the management and Records of law-enforcement agencies, complaints with agencies other than thedirection of law enforcement, but closed if to the extent that such records contain spe- Public Disclosure Commission is exempt ifpart of an ongoing investigation or if release cific tactical plans, the disclosure of which disclosure would endanger a person’s life,would compromise public safety. would jeopardize the safety and security of property or physical safety, so long as the Mug shots are presumed open. law enforcement personnel or the general complainant indicates at the time of filing public may be withheld. Va. Code Ann. § the complaint that the complainant desiresVirginia 2.2-3705.2(4). it to be confidential. RCW 42.17.310(1)(e) Accident reports held by the Depart- Adult arrestee photos are excluded from (recodified as RCW 42.56. 240(2), eff.ment of Motor Vehicles must be released disclosure to the extent necessary to avoid 7/1/06).to persons involved in the accident, or their jeopardizing an ongoing investigation There are no specific restrictions on ac-representatives, attorneys or insurance car- in a felony case. Va. Code Ann. § 2.2- cess to confessions unless they fall within theriers. Va. Code Ann. § 46.2-380. 3706(F)(2). investigative records exemption under the The act only compels the release of Public Records Act, RCW 42.17.310(1)(d)“criminal incident information” in felony Washington (recodified as RCW 42.56. 240(1), eff.cases. “Criminal incident information” is Accident reports are normally not avail- 7/1/06), or the CRPA. RCW 10.97.050.defined as “a general description of the crimi- able as public records. RCW 46.52.080. Records identifying confidential infor-nal activity reported, the date and general Guillen v. Pierce County, 144 Wn.2d 696, 31 mants may be exempt pursuant to RCWlocation the alleged crime was committed, P.3d 628 (2001). 42.17.310(1)(d) (recodified as RCW 42.56.the identity of the investigating officer, and The police blotter, jail register and inci- 240(1), eff. 7/1/06).a general description of any injuries suffered dent reports are generally available prior to Requesters have generally been able toor property damaged or stolen. Va. Code case closure. However, the Public Records obtain copies of mug shots as public records,Ann. § 2.2-3706.(A), (B). Act seals law enforcement records if nondis- although police, prisons and jails often delay 911 tapes qualify as public records and closure “is essential to effective law enforce- access. RCW 70.48.100.as non-criminal incident information. See ment or for the protection of any person’sTull v. Brown, 255 Va. 177, 494 S.E.2d 855 right to privacy.” RCW 42.17.310(1)(d) West Virginia(1998). (recodified as RCW 42.56.240(1), eff. Police records are generally open; the Section 15.2-1722(A) identifies certain 7/1/06). exemption applies only to (1) “informationpersonnel, arrest, investigative, and incident The CRPA provides that records of con- compiled as part of an inquiry into specificrecords held by sheriffs and chiefs of police. victions, other formal dispositions adverse to suspected violations of the law” and (2)Such records previously were exempt from the subject and records of those currently in internal records which reveal “confidentialthe act, but in 1999, the General Assem- the criminal justice system (including those investigative techniques and procedures.”bly deleted the language exempting these on parole) “may be disseminated without Items such as mug shots, police blotters andrecords. restriction.” Records on charges that have 911 tapes normally would not meet these Documents relating to a closed police not resulted in conviction or other adverse prerequisites for confidentiality, and thusinvestigation of possible misconduct by disposition and for which formal proceed- should be subject to disclosure.a named public official were held exempt ings are complete are closed to the public. Records which are “generated pursuantfrom disclosure on the grounds that they RCW 10.97.050. to ‘routine administration, surveillance orwere personnel records, pursuant to § 2.2- 911 tapes are available to the extent not oversight’” are not exempt.3705.1(1) (formerly § 2.2-3704(B)(3)), by a covered by the investigative records exemp- Various statutes contain more specifictrial court of Virginia. Moore v. Maroney, 258 tion. See RCW 42.17.310(1)(d) (recodified provisions governing access to certain typesVa. 21, 27, 516 S.E.2d 9, 13 (1999). as RCW 42.56. 240(1), eff. 7/1/06). of law enforcement records. Accident reportsPage 22 The Reporters Committee for Freedom of the Press Winter 2008
  • which are filed by law enforcement officers an enforcement proceeding or jeopardize 4-203(d)(x) (1977 & Cum. Supp. 1996).with the state Department of Motor Vehicles anyone’s right to a fair trial. Linzmeyer v. For investigatory records, a balanc-are available for public inspection at DMV, Forcey, 2002 WI 84 ¶ 39, 254 Wis. 2d 306, ing test must be applied. See Wyo. Stat. §W. Va. Code § 17A-2-14; 51 Op. Att’y Gen. 331, 646 N.W.2d 811, 821. 16-4-203(b). The balancing test is applied556 (1965), and also should be available under Records such as the police blotter re- whether the investigation is open or closed.the FOIA from the officers directly. porting on arrests in chronological order Obviously, the harm caused by any interfer- Active investigatory records are exempt are subject to inspection, but “rap sheets” ence with the investigation or prosecution isfrom disclosure, W. Va. Code § 29B-1-4(4). compiling an individual’s arrest history are more likely to occur when the investigationHowever, the exemption should no longer probably not. Newspapers Inc. v. Breier, 89 is active.apply once the investigation has concluded. Wis. 2d 417, 279 N.W.2d 179 (1979). In Sheridan Newspapers, 660 P.2d 785, theArrest records and compilations of crimi- There is no statute restricting access to police department had a policy of denyingnal histories maintained by the Criminal the identity of victims. The record created access to its “rolling log” and case reports.Investigation Bureau of the state police are on procedures for the award of compensation The court held that the blanket denial ofexempt from disclosure under the provisions to victims is gener- access to these re-of W. Va. Code § 15-2-24, which denies ally subject to public cords was improper.public access to “fingerprints, photographs, inspection unless Id. Access could berecords or other information” maintained otherwise provided denied only on aby the CIB. by law. Wis. Stat. § case-by-case basis There is no specific provision in the 949.16. when the custodianFOIA regarding access to such information Confessions are determined that aas confessions, or the identities of victims subject to the bal- particular recordand informants. The general test --whether ancing test. included sensitivethe information was “compiled as part of an Informants who investigatory ma-inquiry into specific suspected violations have received a terial or materialof the law” or reveals “confidential inves- specific pledge of compiled for thetigative techniques and procedures” -- will confidentiality are purpose of prosecu-determine whether such records are open to not subject to hav- tion. Id. The publicpublic inspection. This test does not apply ing their identifies interest balancingto information concerning alleged crimes disclosed. Mayfair test must thereforereported to security or other officials at Chrysler-Plymouth be applied beforecolleges and universities. Inc. v. Baldarotta, denying access. Id. 162 Wis. 2d 142, “Criminal his-Wisconsin 469 N.W.2d 638 tory records” may Motor vehicle accident reports are subject (1991). See also be disseminated byto public inspection. Wis. Stat. § 346.70(4)(f). Wis. Stat. § 905.10 Wyoming CriminalState ex rel. Young v. Shaw, 165 Wis. 2d 276, providing informer Identification Divi-477 N.W.2d 340 (Ct. App. 1991). Boating privilege. Confi- sion and local lawand snowmobile accident reports are open. dential informants’ enforcement agen-Wis. Stat. § 30.67(4); 76 Wis. Op. Att’y Gen. identities are not AP Photo by Louis Lanzano cies and agents for56 (Mar. 25, 1987). to be disclosed to Actor Russell Crowe is taken in handcuffs investigatory and Police blotters are subject to inspection in subject of informa- from a New York police precinct in June intelligence pur-every case. Newspapers Inc. v. Breier, 89 Wis. tion. Wis. Stat. § 2005 after being arrested for assault. poses only. Wyo.2d 417, 279 N.W.2d 179 (1979). 19.35(1)(am)2.b. Att’y Gen. Op. 86- There is no authority with respect to 911 A mug shot is a “record” under the law, 008 (1986).tapes per se. However, radio logs are generally State ex rel. Borzych v. Paluszcyk, 201 Wis. There is no provision for protectingsubject to inspection. 67 Wis. Op. Att’y Gen. 2d 523, 549 N.W.2d 253 (Ct. App. 1996), victims from publicity, and case law does12 (Jan. 25, 1978). Requests seeking copies and inspection is likely to be allowed under not appear to provide any protection. Seeof 911 tapes, like all other requests, must be Newspapers Inc. v. Breier, 89 Wis. 2d 417, 279 Sheridan Newspapers, 660 P.2d 785.reasonably limited and defined. See Schopper N.W.2d 179 (1979). Confessions might be exempt, subject tov. Gehring, 210 Wis. 2d 208, 213, 565 N.W.2d the custodian’s discretion if it would inter-187, 189-90 (Ct. App. 1997). Wyoming fere with the investigation or prosecution. Investigatory records generally are No provision directly deals with accident See Wyo. Stat. § 16-4-203(b) and Sheridansubject to the common law balancing test. reports. The court in Sheridan Newspapers, Newspapers, 660 P.2d 785.Appleton Post-Crescent v. Janssen, 149 Wis. 660 P.2d 785, made it clear that police Records identifying confidential in-2d 294, 441 N.W.2d 255 (Ct. App. 1989). records may not be withdrawn to protect formants might be exempt, subject to theJournal/Sentinel Inc. v. Aagerup, 145 Wis. 2d the privacy of individuals. See Wyo. Stat. § custodian’s discretion. See Wyo. Stat. §818, 429 N.W.2d 772 (Ct. App. 1988). Inves- 16-4-203(b). 16-4-203(b) and Sheridan Newspapers, 660tigatory records in the hands of the district Police blotters are open. See Sheridan P.2d 785.attorney are absolutely immune from public Newspapers, 660 P.2d 785. Records revealing police techniquesinspection. State ex rel. Richard v. Foust, 165 Information obtained through 911 tele- might be exempt, subject to the custodian’sWis. 2d 429, 477 N.W.2d 608 (1991). phone systems is not available for inspec- discretion. See Wyo. Stat. § 16-4-203(b) and When an investigation is closed and no tion except to the person in interest, law Sheridan Newspapers, 660 P.2d 785.prosecution or disciplinary action is either enforcement personnel, public agencies for There are no provisions for mug shots.ongoing or contemplated, there is no risk that the purpose of conducting official business, See Wyo. Stat. § 16-4-203(b) and Sheridanreleasing a police report will interfere with or pursuant to court order. Wyo. Stat. § 16- Newspapers, 660 P.2d 785.Winter 2008 Poiice Records Page 23
  • The Reporters Committee for Freedom of the Press is commit- law help, there’s the Open Government Guide, a complete guideted to helping journalists understand the laws that affect newsgath- to each state’s open records and meetings acts. Also, Access toering. And we have a wide array of publications that can help. Electronic Records tracks developments in the states regarding We’ve got special reports like Homefront Confidential, an computerized release of data.examination of access and information policy issues in a post- And of course, there’s the First Amendment Handbook,September 11 world. a guide to almost every aspect of media law with practical Our Reporter’s Privilege Compendium offers a detailed look advice for overcoming barriers encountered every day byat each state’s shield laws and court decisions that affect the ability journalists.of reporters to keep their sources and information confidential. For these and many more publications, visit our Web site. For help with gaining access to government records and meet- Read these guides online — for no charge — or purchase a copyings, we’ve got How to Use the Federal FOI Act. Or for state to read in print. Visit our online First Amendment newsstand at: www.rcfp.org/publications