Police videotapes of bookings are public records

From the Winter 2000 issue of The News Media & The Law, page 9.

The state Supreme Court in Jefferson City has ruled that police videotapes of criminal suspects being arrested and booked are public records, regardless of the fact that the videotapes were recycled every week or so and not kept permanently.

The court also ruled that a state law requires Cole county, which brought a lawsuit to prevent disclosure of the videotapes, to pay the attorney fees and litigation costs of the television station that originally requested the tapes.

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State Rep. Mark Richardson (R-Poplar Bluff) was booked by the Cole County Sheriff's Office for driving while intoxicated in April 1997. Some of the video cameras stationed throughout the jail recorded the processing. A local television station, KRCG-TV, orally requested videotape of the booking. A sheriff's deputy denied the request, saying he first had to check with the county prosecutor to learn whether the videotape would be considered a public record.

Two days later, the television station repeated its request in writing. The county prosecutor denied the request. The county then filed suit in state trial court to determine whether the videotape qualified as a public record.

Ruling against the television station, the Jefferson City trial court found the videotape was not a public record because it had not been prepared as part of the sheriff's official business, nor was it required to be kept as an official record.

On direct appeal to the state Supreme Court in Jefferson City, the television station argued that the videotape is public because the records law mandates only that a record be retained by a governmental body. The fact that the sheriff's office is not required to keep the videotape does not matter, the television station argued in briefs filed with the court.

The television station also argued that the videotapes meet the definition of an arrest record because they depict someone being arrested and detained.

The county, however, maintained before the Supreme Court that the booking videotapes do not meet the definition of "retained" under the public records law because they are recycled every week or so. Only those records that are required to be permanently maintained are subject to the records law, the county argued.

The county also argued that such videotapes are unlike mug shots and other arrest records, which are public, because the videotaping is not part of the formal arresting and detaining process.

The state attorney general filed a brief generally supporting the television station's position that the videotapes should be public. The attorney general argued that while the tapes are not arrest records, they are investigative records that should be made public once the investigation closes.

The Supreme Court rejected the attorney general's position in its December ruling, finding instead that the videotapes are arrest records subject to public disclosure. The fact that the tapes were retained at all was what mattered in determining whether they were public, the court found.

Missouri's law defines a public record as being any record, in a written or electronic format, that is retained by a governmental body. The question to ask, the court noted, is whether the record is being retained at the time of the request, not whether the record is required to be kept permanently.

"Although the tapes are reused, they are still retained by the sheriff," Judge Duane Benton wrote for the court. "The plain and ordinary meaning of the word 'retain' does not specify a length of time for holding or maintaining."

"True, the dictionary has a host of definitions of 'record,' some that stress permanency, and some that do not," Benton wrote. But if the term is ambiguous, it must be construed broadly enough to find that a tape retained for four days is a record, he held.

The state high court also ruled that, under state law, the television station can recover its legal expenses in fighting the claim from the sheriff's office. Because the sheriff's office brought the initial suit, state law considers the suit to have been brought "at the expense of the public governmental body," meaning the government is liable for the expenses of all parties, regardless of the outcome, the court found.

In a separate opinion, Judge John Holstein agreed with the holding that the videotape is public, but he dissented from the part of the opinion regarding legal costs. He argued that requiring the government to bear the cost of the other party in an open records case would have a chilling effect on government, with officials declining to fight records requests because of the potential cost involved. (Hemeyer v. KRCG-TV)