B. Arrest records
The public’s right of access to arrest records is not governed by the common law or the First Amendment, unless the records are filed with the court. Cf. Fusaro v. Davitt, 327 F. Supp. 3d 907, 918 (D. Md. 2018) (affirming state statute limiting public access to state’s voter lists; First Amendment does not mandate a right of access to information within the government’s control).
Independent of any judicial proceeding, the public might have a right of access to arrest records under the laws of the jurisdiction possessing the records, such as freedom of information or “sunshine” laws. See, e.g., Va. Code § 3706 (Virginia statute governing mandatory and discretionary disclosure of law enforcement and criminal records).
The Seventh Circuit has stated that the federal courts lack jurisdiction to order expungement of arrest records maintained by the executive branch. United States v. Flowers, 389 F.3d 737, 738 (7th Cir. 2004) (citing United States v. Janik, 10 F.3d 470, 472 (7th Cir. 1993)). Flowers and Janik held that the courts have jurisdiction to expunge records maintained by the judicial branch, applying a balancing test. Denying a request for expungement of judicial records of arrest and conviction, the Flowers court noted “the weight of the public interest can be seen in the long tradition of open proceedings and public records, which is the essence of a democratic society.” 389 F.3d at 739. In United States v. Wahi, the court overruled Flowers and Janik insofar as they held that courts have inherent equitable jurisdiction to expunge judicial records. 850 F.3d 296, 302-303 (7th Cir. 2017).
Arrest reports, with redaction of witness identification and witness reports at the discretion of the police department, are public records. Birmingham News Co. v. Deutcsh, CV 85-504-132 JDC (Cir. Ct. of Jefferson County, Ala., Equity Div., Aug. 19, 1986) (consent order). Mugshots in a police computer database also qualify as public records. Op. Att’y Gen. Ala. No. 2004-108, 2004 Ala. AG LEXIS 35 (Apr. 1, 2004). Requests for these materials may be made in person or by telephone to the office that holds the records; however, a written request form may be required in some cases. See Blankenship v. Hoover, 590 So. 2d 245, 250 (Ala. 1991) (holding that a written request form may be required as long as the requirement is not “implemented . . . in order to dissuade or prevent any individual from acquiring access to public documents or records” and does not give the records’ custodian “the power to hinder access or refuse disclosure based on perceived necessity or established office policy.”). However, sheriff’s offices and correction centers are required to expunge identification information, including mugshots, from their records in the event the defendant is released without charge or cleared of the offense. Op. Att’y Gen. Ala. No. 2007-052 (Feb. 26, 2007).
State law also requires each sheriff to keep in the sheriff’s office, subject to public inspection during office hours, a well-bound book into which must be entered a description of each prisoner received into the county jail. Ala. Code § 36-22-8.
In 1991, the Supreme Court of Arkansas held that for purposes of Arkansas’s Freedom of Information Act, the jail log, arrest records, and shift sheet are not records containing undisclosed law enforcement investigations and are subject to disclosure pursuant to Ark. Code Ann. § 25-19-105 (Arkansas’s Freedom of Information Act). Hengel v. City of Pine Bluff, 307 Ark. 457, 464, 821 S.W.2d 761, 764 (1991).
Arrest records of juveniles, however, are subject to Arkansas Code Annotated § 9-27-309(k), which provides that information regarding the arrest or detention of a juvenile shall be confidential unless the exchange of information is: (1) for the purpose of obtaining services for the juvenile or to ensure public safety; (2) reasonably necessary to achieve one or both purposes; and (3) under a written order by the circuit court.
Generally, “the name, sex, age, and address of a person arrested” and “the time, date, location of the incident and of the arrest” are public records that are not exempt under Idaho’s Public Records Act. Idaho Code § 74-124(3)(b) & (c). Idaho Court Administrative Rule 32 does not specifically address arrest records, therefore, if such records are filed in a judicial proceeding, they should generally be available for public review.
Access to law enforcement records is governed by the Kansas Open Records Act (KORA), K.S.A. 45-215–223. In general, arrest reports and mug shots may be withheld, but other kinds of information related to a criminal offense are open, including jail rosters and police blotters.
Under KORA, public records are defined as “any recorded information, regardless of form or characteristics, which is made, maintained or kept by or is in the possession of any public agency.” K.S.A. 45-217(g)(1)(A). Such a record also is public if it is originated or held by agency employees or officers pursuant to their official duties and if it is “related to the functions, activities, programs or operations of any public agency.” K.S.A. 45-217(g)(1)(B). A public agency is “the state or any political or taxing subdivision of the state or any office, officer, agency or instrumentality thereof, or any other entity receiving or expending and supported in whole or in part by the public funds appropriated by the state or by public funds of any political or taxing subdivision of the state.” K.S.A. 45-217(f)(1).
The act defines “criminal investigation records” as records “compiled in the process of preventing, detecting or investigating violations of criminal law, but does not include police blotter entries, court records, rosters of inmates of jails or other correctional or detention facilities or records pertaining to violations of any traffic law other than vehicular homicide….” K.S.A. 45-217(c). As a result, arrest reports and mug shots may be withheld under the act, but other kinds of information related to a criminal offense are open, including jail rosters and police blotters.
When recording information about reported criminal activity, law enforcement agencies use a Standard Offense Report (SOR), a form that was designed by the Attorney General’s Office and the Kansas Bureau of Investigation. As has been explained by the Attorney General’s Office, the front page of the SOR contains: a description of the offense; the type of force involved, if any; identification of the victim as a business or an individual; an individual victim’s name, address, home telephone number, date of birth, driver’s license number, Social Security number, employer, work telephone number, employer’s address, relationship to any suspect, and the type of injury; a description of any property involved in the crime, and identification of the reporting officer. The back page of the SOR contains additional details about the offense, including how it was committed, and information about suspects and evidence. Kan. Atty. Gen. Op. No. 98-38. The front page of the SOR is considered generally open, but the back page is closed.
To the extent that limitations are imposed on access to the SOR, they are derived in part from two KORA provisions. One is K.S.A. 45-221(a)(10), which exempts criminal investigation records from disclosure, and the other is K.S.A. 45-221(a)(30), under which a public records custodian is not required to disclose information that “would constitute a clearly unwarranted invasion of personal privacy.” Because of these provisions, the front page of the SOR is closed to the extent that it includes information considered private, i.e. Social Security numbers and the identities of victims of certain sex crimes, and the back page is entirely exempt from disclosure as a record of a criminal investigation.
Information that would be invasive of personal privacy is defined as that which “would be highly offensive to a reasonable person, including information that may pose a risk to a person or property and is not of legitimate concern to the public.” K.S.A. 45-217(b).
As the Attorney General’s Office has explained, “The photos of persons who have been arrested are compiled, generally in the form of a book, to aid in identification.” Kan. Atty. Gen. Op. No. 87-25.
When recording information about arrests, law enforcement agencies use a Standard Arrest Report form, which is treated as a criminal history record. Under K.S.A. 22-4707, a criminal history record is not open. However, information related to an arrest may be available under K.S.A. 22-4708, which says:
"[A] criminal justice agency may disclose the status of a pending investigation of a named person, or the status of a pending proceeding in the criminal justice system, if the request for information is reasonably contemporaneous with the event to which the information relates and the disclosure is otherwise appropriate."
Information related to arrests also may be obtained from police blotters. The Kansas Supreme Court has characterized a police blotter as a record of “the names of persons arrested by police officers and the nature of the charge on which they are arrested and the date of arrest, amount of bond required and posted, and other information, . . . .”’ Hill v. Day, 215 P.2d 219, 221 (Kan. 1950). KORA specifies that open law enforcement records include “police blotter entries.” K.S.A. 45-217(c). KORA also specifies that, in addition to court records, open law enforcement records include “rosters of inmates of jails or other correctional or detention facilities or records pertaining to violations of any traffic law other than vehicular homicide as defined by” statute. K.S.A. 45–217(c).
Records exempt from disclosure are specified in K.S.A. 45-221. Even so, a public agency may exercise discretion to treat exempt records as open. Under K.S.A. 45-221, a public agency is not flatly prohibited from making a disclosure; rather it “shall not be required to disclose” records identified in the exemptions.
New Mexico’s Arrest Record Information Act is designed to prevent the infringement of an individual’s rights when information is inaccurate, incomplete, or disseminated irresponsibly. NMSA § 29-10-2. Arrest record information is defined as “notations of the arrest or detention or indictment or filing of information or other formal criminal charge against an individual made by a law enforcement agency.” § 29-10-3. Information in arrest records revealing confidential sources, methods, information or individuals accused but not charged with a crime is confidential. § 29-10-4.
Information available for public inspection include posters, announcements or lists for identifying or apprehending fugitives or wanted persons; original records of entry such as police blotters maintained by criminal justice agencies; published court or administrative opinions or public judicial, administrative or legislative proceedings; records of traffic offenses and accident reports; announcements of executive clemency; and statistical or analytical records or reports in which individuals are not identified and from which their identities are not ascertainable. § 29-10-7(A). A law enforcement agency is not prohibited from confirming prior arrest record information to members of the news media or any other person, upon specific inquiry as to whether a named individual was arrested, detained, indicted or whether another formal charge was filed on a specified date, if the arrest record information disclosed is based on data enumerated by Section 29-10-7(A), (B).
Arrest warrants and their supporting affidavits of probable cause are “public judicial documents” and thus presumed open to the public. See Commonwealth v. Fenstermaker, 530 A.2d 414, 418-419 (Pa. 1987) (arrest warrants and affidavits).
Fenstermaker did not address whether an arrest warrant should be open to the public prior to the arrest. See Fenstermaker, 530 A.2d at 416. But the denial of access to a search warrant may be justified until after an arrest if publication of the warrant could: (1) cause the suspect to flee; (2) deprive the police of a meaningful opportunity to interrogate a suspect; (3) deprive police of the opportunity to test the credibility of third parties who come forward with information; or (4) endanger eyewitnesses. See In re Search Warrant, 20 Media L. Rep. 1910, 1912 (Northampton Cty. C.C.P. Oct. 23, 1992). Following the arrest, the document may be opened without jeopardizing the investigation. See id.
The presumption of openness that attaches to arrest warrants and supporting applications and affidavits is not absolute. Accordingly, the Pennsylvania courts have adopted a balancing test under which access to these documents may be denied if warranted by the facts and circumstances of a particular case. There are several interests that courts have suggested may justify denial:
(1) A defendant’s fair trial rights may be affected, see PG Publ’g Co v. Commonwealth, 614 A.2d 1106, 1108 (Pa. 1992); Fenstermaker, 530 A.2d at 420 (stating that pretrial publicity caused by disclosure of affidavits may interfere with defendant’s Sixth Amendment rights);
(2) Ensuring the safety of informants, see Fenstermaker, 530 A.2d at 420; see also PG Publ’g, 614 A.2d at 1108; and
(3) Protecting the integrity of an ongoing criminal investigation, see Fenstermaker, 530 A.2d at 420; see also PG Publ’g, 614 A.2d at 1109-10.
See Newspapers, Inc. v. Breier, 89 Wis. 2d 417, 279 N.W.2d 179 (Wis. 1979):
Information concerning the operations of the police department in making arrests and the charges upon which arrests are made is vital to the democratic system; and presumptively, by statute, the records are to be open. While in some cases involving police functions there is an overriding public interest in preserving secrecy … no overriding public-interest concern is discernible when the executive act of arrest has been completed. An arrest is the exercise of the government’s power to deprive an individual of freedom. The government is required to have probable cause whenever it deprives an individual of personal liberty, and it is offensive to any system of ordered liberty to permit the government to keep secret its reason for depriving an individual of liberty.
We hold as a matter of law that the harm to the public interest in the form of possible damage to arrested persons’ reputations does not outweigh the public interest in allowing inspection of the police records which show the charges upon which arrests were made. The police “blotter” shall be open for inspection by the public at any time when the custodian’s office is open for business and the “arrest list” or the police “blotter” is not actually being used for the making of entries therein.