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).
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.
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.