Introduction

Although most states provide for the release of information about arrests and criminal convictions, there have been at least two recent movements aimed at hiding this valuable information from public view.

In Nashville, Tenn., a Vanderbilt University law professor has sought enforcement of a more than 30-year-old federal consent decree that shields arrest information from disclosure.

At the same time, an American Bar Association commission recommended numerous restrictions on criminal records before withdrawing the resolution from consideration by the ABA House of Delegates in August 2007.

In the early 1970s, a class-action lawsuit in Nashville, Tenn., resulted in two consent decrees (a mix between a contractual agreement and a court order) that limited how the city, county and state governments could use arrest information.

Specifically, in 1973 the government agreed not to use information about arrests that did not result in criminal convictions in considering applications for employment with the Metropolitan Government or its board of education.

Additionally, in 1974, the government entities agreed not to disseminate information about arrests made by the Metropolitan Government except to law enforcement agencies for law enforcement purposes.

Jump ahead more than 30 years to 2007 and Doe v. Briley is active again after a law professor who represented the class in the original case sought to have the consent decree enforced.

James F. Blumstein, a law professor at Vanderbilt University, said he learned via a newspaper article in spring 2006 that the Metropolitan Nashville Police Department was displaying on a department Web site pictures, names and other information about men arrested for solicitation of prostitution.

“I had moved on,” Blumstein said. “I hadn’t monitored this. I thought and assumed that they would act in good faith; we negotiated this in good faith. Every once in a while you would see some arrest information come out, but I thought that came through the court system because news media have access to court records.”

Blumstein said the reason behind the case is the protection of the interest an individual holds in being able to obtain employment, and not having an arrest that does not result in a criminal conviction hamper that interest.

“The evidence we developed at the time and was conceded by the government, and there’s still pretty good evidence of that, is that people can be discriminated against in their employment when arrest records are available,” Blumstein said.

He said that when raw arrest information is released, it does not afford the arrestee a chance to defend the arrest.

However, media groups have argued in court documents that changes in law since the consent decrees were accepted require the agreements to be modified.

Citing a United States Supreme Court decision (Paul v. Davis, 424 U.S. 693 (1976)), attorneys for Nashville’s NewsChannel 5 have argued that one’s reputation is not a liberty or property interest protected by the Constitution. They have also argued, citing a Sixth Circuit case from 1996, that there is no privacy interest “in one’s criminal record.”

Although Blumstein agreed that a change in law could be grounds for a modification to the consent decrees, he said the time to raise such an argument has come and gone. He said the appropriate time for that argument “would have been sometime after 1976,” when Paul was decided.

The television station, however, has also argued that the information should be released under the Tennessee Public Records Act, which provides access to “all state, county and municipal records” unless a state statute provides otherwise, according to the station’s court filings.

“Moreover, subsequent Tennessee case law has made it clear that the agreement to enter into the Consent Decree by the Metropolitan Government and by the State itself is unenforceable and a violation of public policy,” NewsChannel 5 wrote in court documents.

The television station also pointed out that the Tennessee Court of Appeals has “held that a governmental entity cannot enter into confidentiality agreements with regard to public records.”

The station also argued that the decrees operate as a form of prior restraint in violation of the First Amendment.

Frank Gibson, director of the Tennessee Coalition for Open Government, said he believes advocates for overturning or redrafting the consent decrees have a good shot at winning.

“The government lawyers, who are on our side in this particular case, probably said it best in their argument before the federal judge,” Gibson said. “The public has a right to know about crime in their neighborhoods. And, if the police department can’t report that they’ve arrested someone in a crime that might be of great public interest then the public doesn’t know about it.”

Gibson also expressed concern that the consent decrees could negatively impact programs such as Crime Stoppers.

“This would make such programs as Crime Stoppers obsolete,” he said. “Most Crime Stoppers are looking for people who’ve been charged with a crime, but haven’t been convicted. This consent decree says the police department cannot identify anybody arrested for a crime until they are convicted.”

Blumstein disagreed with Gibson’s assessment, saying that the consent decrees do not prevent officials from releasing information about suspect who have yet to be arrested. He further said that the decrees do not prevent the police from announcing an arrest, they just cannot name the specific individual who has been arrested.

The case is still pending in federal District Court in Nashville.

‘Guilt isn’t the only measure’

Sparked by a speech by U.S. Supreme Court Justice Anthony Kennedy, the American Bar Association created two commissions to examine the national criminal justice system.

The first produced recommendations in 2004 related to sentencing procedures, specifically calling for the repeal of mandatory minimum sentences.

The current commission, the ABA Commission on Effective Criminal Sanctions, has made recommendations to restrict access to criminal history information.

These recommendations were to be presented to the ABA’s House of Delegates in August 2007, but were withdrawn at the last minute.

In its recommendations, the commission urged governments to limit access, within the limits of the First Amendment to criminal cases where charges are dropped or not pursued, those that result in acquittal, where convictions are overturned, or where confessions are set aside.

The commission also had recommended that access to misdemeanor and felony convictions not involving “substantial violence, large scale drug trafficking, or conduct of equivalent gravity” be restricted after “the passage of a specified period of law-abiding conduct.”

One recommended exception would have allowed such convictions to be used in later prosecutions or sentencing hearings. The commission had also recommended that judges should be able to grant access to records for “good cause shown” or where “public welfare support[s] revocation” of restriction.

The recommendations had also stated that disclosure of restricted records need not be made to employers or anyone else questioning an individual’s criminal background, except for law enforcement. The commission had also recommended that liability for an employer’s negligence in hiring be removed so long as the relevant records had been restricted.

The commission also recommended that credit reporting agencies be prohibited from releasing information about restricted records.

Chris Joyner, a reporter at The Clarion Ledger in Jackson, Miss., said he opposes any attempt to close access to records, but that the ABA commission’s recommendations scared him.

“In these specific recommendations, they scare me because they place the documents entirely on one side of the ledger in the hands of law enforcement,” Joyner said prior to the withdrawal of the recommendations. “That provides no opportunity for the press or for individual citizens to provide some sort of check on that power. It requires us to place a mount of trust on the court system that the court generally does not require.”

Joyner said court records are among the most important held by the government because they reflect how individuals are judged innocent or guilty.

He said it is important for court records to remain open not only to see who has been convicted, but also to see who has been found innocent.

“Innocence is a measure that is important for the press to be able to audit,” Joyner said. “If they close these records where someone is charged and found innocent, we’re sort of going around half blind.”

He said what impact these recommendations would have, if adopted by local governments, would be delayed. He said the impact may not be noticed until someone wants to look at large-scale issues within the court system.

“A big part of the watchdog function of the press is to go back and look at large numbers of cases to see what they tell us about the way the system is working for people,” Joyner said. “If those records are then sealed after the fact, we’re going to lose that ability.”

Sources for information about crimes, criminals

Information about crimes, criminals and their victims is a staple for most local newspaper and broadcast news operations. Reporters obtain it from police, the courts and other sources, often with little difficulty.

If a charge has been filed and the case has been turned over to a court, access may be greater because the U.S. Constitution and many state constitutions guarantee public access to the criminal judicial system. But if the information you seek is in law enforcement officials’ hands, obtaining it can be more difficult.

Information may be kept in several different forms at a police station. Often there is a “blotter” -- a log of all calls for assistance received by police. It may provide rudimentary information about the location of an event, the time and a brief description of the caller’s request.

For additional information about an item on the blotter, you may want to see the incident report filed by the officer who answered the call. In some police departments all reports are kept in one office. In others, the reports may be filed in the office that will investigate the incident further. For example, a report about a robbery would go to the “crimes against persons” office and a report about prostitution or drugs would go to the vice squad.

A third source of information is the arrest or “booking” log, which provides basic information about individuals charged with crimes. Often it includes the name, address and age of the suspect and brief descriptions of charges filed against the individual.

To determine whether a person is being held in jail or has been released on bail, you may have to inquire at another office at the police station or the clerk’s office in the court where suspects are arraigned.

Cultivate your local police

In practice, getting to know members of the police force could be the most important step in learning about events, criminal and noncriminal, and getting access to police records.

At the scene of a crime, accident or other emergency, a friendly officer may provide information that you will not find in an incident report until hours later, if at all.

But be careful. Some of the information may be incomplete or not entirely accurate. Publishing such material without verification might lead to a libel suit. You should read the actual incident report, or contact higher officials who can confirm the information, before writing your story.

In most states, fair and accurate reports of the contents of official documents, including police records, are privileged. In those states, a news organization that accurately reports the contents of an official police document containing false information cannot be held liable for the inaccuracies. In a few cases courts have ruled that a reporter who has not read the report from which the information was obtained cannot invoke the privilege.

Therefore, even if a police official has provided information from an incident or arrest report over the telephone, it is a good practice to visit the police station and read the document yourself.

At headquarters, police personnel may alert you to a seemingly innocuous blotter entry that could be a page one story. Your source may let you read the relevant reports or refer you to someone else who has them.

Laws and rules govern access

The open records laws in most states guarantee that police records are open unless some specific exemption would allow officers to deny access to the information. Some of those laws entitle you to inspect records during regular business hours. Others allow you to ask for copies. The time limit for providing copies will vary from state to state.

If, in your state, an open records request would compel you to wait for paper copies of information, you may want to invoke the access laws only as a last resort.

Individual police officers may not be aware of the requirements of the state’s open records laws. Be prepared to point to statutory provisions that entitle you to inspect and copy public records.

Most police agencies also have written policies concerning what information is public and who may release arrest and incident reports. Acquaint yourself with those policies so that you can invoke them when needed.

If the policies are at odds with the requirements of the open records law, you may want to bring this to the attention of the city, county or state attorney.

Statutes and case law on media access to police records vary greatly from state to state. Some states’ open records laws, including Indiana’s, Minnesota’s and Oregon’s, go into great detail about access to arrest records, incident reports and “rap sheets.”

Open records laws in some states make no mention of law enforcement records. In some of these states, court opinions specify the law enforcement records that are open.

Often the records law will exempt “investigatory” records. An informal poll of state press associations showed that their foremost concern in gaining access to police records is the broad and frequent interpretation of police records as “investigatory,” even when release would clearly not harm investigations.