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.
There does not appear to be case law dealing directly with the openness of arrest records in Alaska. However, they should be presumptively open, and the Court of Appeals’ ruling in Johnson v. State, 50 P.3d 404 (Alaska Ct. App. 2002) is instructive. Mr. Johnson, a felon who had been convicted of kidnapping and rape, served his time, and no longer was on supervised probation and parole moved to have the records of his criminal convictions sealed. The superior court denied his request, and the Court of Appeals affirmed. It noted that Alaska Administrative Rule 37.5 lists four exceptions to the general rule that records of the Alaska Court System “shall be open to inspection by any member of the public.” The appeals court noted that “In cases where there is no express exception to the state’s disclosure laws, we balance ‘the public interest in one hand, and the privacy and reputation interests of the affected individuals together with the government’s interest in confidentiality, on the other.’ We also recognize the legislature’s expressed bias in favor of public disclosure and that ‘doubtful cases should be resolved by permitting public inspection.’” Johnson, 50 P.3d at 406 (citing Kenai v. Kenai Peninsula Newspapers Inc., 642 P.2d 1316, 1323 (Alaska 1982)). Arrest records are not included in the list of exceptions in Rule 37.5 (or in the public records act, AS 40.25.120(6)[A]), and therefore, according to the holding in Johnson, should be considered open, subject to this balancing of interests, which the court found in Johnson favored public access. The statute authorizing or requiring withholding of much electronically-stored information contained in the state’s Criminal Justice Information System (CJIS) excludes any court records from the definition of “criminal justice information,” AS 12.62.900(12). And in any event, it also provides that “current offender information” may be provided to a person for any purpose unless its release would unreasonably compromise the privacy of a minor or vulnerable adult. AS 12.62.160(b)(8). This includes information that an identifiable person is currently under arrest for or is charged with a crime, and prosecution is under review or has been deferred by agreement, a warrant exists for the person's arrest, or less than a year has elapsed since the date of the arrest or filing of the charges. AS 12.62.900(14). See also AS 12.62.160(b)(3) (otherwise confidential criminal justice information may be released “if the information is commonly or traditionally provided by criminal justice agencies in order to identify, locate, or apprehend fugitives or wanted persons or to recover stolen property, or for public reporting of recent arrests, charges, and other criminal justice activity.”) (emphasis added).
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.
Under Penal Code § 1524(a)(6), a search warrant includes arrest warrants. In turn, Penal Code § 1534(a) provides that a warrant expires in 10 days and “[t]hereafter, if the warrant has been executed, the documents and records shall be open to the public as a judicial record.” However, the court has discretion to seal warrants and probable cause affidavits to protect the criminal investigation and the defendant’s right to a fair trial. See People v. Jackson, 128 Cal. App. 4th 1009, 27 Cal. Rptr. 3d 596 (2005); People v. Hobbs, 7 Cal. 4th 948, 873 P.2d 1246, 30 Cal. Rptr. 2d 651 (1994); see also Weaver v. Superior Court, 224 Cal. App. 4th 746, 749-750, 168 Cal. Rptr. 3d 864 (2014) (in discussion of California Public Records Act, court held that district attorney’s copies of judicial records, including charging documents, were public records).
California Rules of Court, Rules 2.550 and 2.551, set forth the procedures to obtain a sealing order. Courts may seal records only if they hold a hearing and expressly find, on the record or in a written order, that sealing is warranted under a four-factor test. NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 1218, 980 P.2d 337, 86 Cal. Rptr. 2d 778 (1999). The parties’ agreement to seal is insufficient. See H.B. Fuller Co. v. Doe, 151 Cal. App. 4th 879, 891, 60 Cal. Rptr. 3d 501 (2007) (reversing sealing order based on parties’ stipulation).
Information regarding contemporaneous police activities, including arrests, also is available under the California Public Records Act. Government Code § 6254(f) provides, in part, that agencies must disclose “[t]he full name, current address, and occupation of every individual arrested by the agency, the individual’s physical description including date of birth, color of eyes and hair, sex, height and weight, the time and date of arrest, the time and date of booking, the location of the arrest, the factual circumstances surrounding the arrest, the amount of bail set, the time and manner of release or the location where the individual is currently being held, and all charges the individual is being held upon, including any outstanding warrants from other jurisdictions and parole or probation holds.” However, information related to closed investigations is not available. See County of Los Angeles v. Superior Court, 18 Cal. App. 4th 588, 595, 22 Cal. Rptr. 2d 409 (1993). In addition, under Penal Code § 13300, summary criminal history information (“rap sheets”) are exempt from disclosure.
Arrest records are considered records of “official acts,” for purposes of the Colorado Criminal Justice Records Act (“CCJRA”). C.R.S. §§ 24-72-302(7) & 24-72-303. Records of “official actions” generally “shall be open for inspection by any person at reasonable times . . . .” C.R.S. § 24-72-303(1); Madrigal v. City of Aurora, 2014 COA 67, ¶ 9, 349 P.3d 297, 299 (Colo. App. 2014); Freedom Colo. Info., Inc. v. El Paso Cnty. Sheriff’s Dept., 196 P.3d 892, 897 (Colo. 2008). Custodians of records of both official actions and other criminal justice records may “make such rules and regulations with reference to the inspection of such records as are reasonably necessary for the protection of such records and the prevention of unnecessary interference with the regular discharge of the duties of the custodian or his office.” C.R.S. § 24-72-303(1); C.R.S. § 24-72-304(1). However, the Colorado Supreme Court has interpreted the act to circumscribe a custodian’s discretion regarding disclosure of records of “official actions.” People v. Thompson, 181 P.3d 1143, 1145–46 (Colo. 2008) (“[A] record of official action must be available for public inspection unless one of the two exceptions applies: (1) non-disclosure is required by the CCJRA, or (2) non-disclosure is required by other law. Consequently, the CCJRA does not grant any criminal justice agency, including a court, any discretion as to whether to disclose a record of official action in its entirety, in part, or not at all.”) (citations omitted).
The Colorado Supreme Court has declined to recognize “a constitutional right of access to any and all [criminal] court records in cases involving public concern.” People v. Owens, 2018 CO 55, ¶ 7, 420 P.3d 257, 258 (Colo. 2018). “[W]e have never recognized any such constitutional right—whether under the First Amendment [to the U.S. Constitution] or Article II, section 10 of the Colorado Constitution.” Id. ¶ 8. The Colorado Supreme Court stated that there is “no ‘absolute right to examine’ court records” but “inspection may be permitted ‘at the discretion of the court’” and in accordance with “laws and administrative procedures currently in place—including, but not limited to, the Colorado Criminal Justice Records Act, §§ 24-72-301 to -309, C.R.S. (2017)—that are predicated upon the absence of a constitutionally guaranteed right of access to criminal justice records.” Id. ¶¶ 9–10.
Though state arrest warrants are presumed to be public, their supporting affidavits may—upon “good cause shown”—be sealed at the request of the prosecutor. Conn. R. Super. Ct. § 36-2(b). Such a sealing order must, however, be time-limited, not normally to exceed two weeks. Arrest warrants for certain violations are also searchable via the judicial branch website at https://www.jud2.ct.gov/VOP/.
In Connecticut federal trial court, judicial documents in criminal cases may be sealed “only if [the district court] makes particularized findings on the record demonstrating that sealing is essential to preserve compelling interests, and that sealing in whole or in part is narrowly tailored to serve those interests.” D. Conn. Local. Crim. R. 57(b)(3)(B).
The D.C. Circuit has held that the First Amendment right of access to information recognized in Richmond Newspapers “does not extend to non-judicial documents that are not part of a criminal trial." Ctr. for Nat. Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918 (D.C. Cir. 2003) (First Amendment did not require release by Department of Justice of information concerning persons detained during investigation into major terrorist attack, including names and attorneys' names for those not criminally charged, and dates and locations of arrest, detention and release for all detainees).
District of Columbia
Arrest records can generally be obtained pursuant to the District of Columbia Freedom of Information Act of 1974, D.C. Code Ann. § 2-531 et seq. (“FOIA”). See Newspapers, Inc. v. Metro. Police Dep’t, 546 A.2d 990, 1001 (D.C. 1988) (reversing a trial court decision “to withhold the disclosure of arrest records otherwise available under the FOIA”); see also DC-SCR Crim. 118.
There is a constitutional right of access to records held by executive branch agencies, including law enforcement agencies and State Attorneys. Even so, access to arrest records is generally controlled by statute. Generally, arrest and crime reports are open to the public. See e.g., Op. Att’y Gen. Fla. 91-74 (1991); Op. Att’y Gen. Fla. 80-96 (1980). Florida Statutes Section 119.071(2)(c)1, however, exempts active criminal intelligence information and active criminal investigative information from public access. Criminal intelligence information is defined as “information with respect to an identifiable person or group of persons collected by a criminal justice agency in an effort to anticipate, prevent, or monitor possible criminal activity.” Fla. Stat. § 119.011(3)(a). Criminal investigative information is “information with respect to an identifiable person or group of persons compiled by a criminal justice agency in the course of conducting a criminal investigation of a specific act or omission, including, but not limited to, information derived from laboratory tests, reports of investigators or informants, or any type of surveillance.” Fla. Stat. § 119.011(3)(b). However, to be exempt, the information must also be active. For criminal intelligence information to be active, it must be “related to intelligence gathering conducted with a reasonable, good faith belief that it will lead to detection of ongoing or reasonably anticipated criminal activities.” Fla. Stat. § 119.011(3)(d)1. Similarly, for criminal investigative information to be active it must be “related to an ongoing investigation which is continuing with a reasonable, good faith anticipation of securing an arrest or prosecution in the foreseeable future. Both types of information are also considered active “while such information is directly related to pending prosecutions or appeals. Id.
Even when the information is active and meets the definition of criminal intelligence or investigative information, the following categories of information are not covered by these two exemptions: (1) the time, date, location, and nature of a reported crime; (2) the name, sex, age, and address of a person arrested or of the victim of the crime, with limited statutory exceptions; (3) the time, date, and location of the incident and of the arrest; and (4) the crime charged. Fla. Stat. § 119.011(3)(c). Documents given to the criminal defendant through discovery also do not fall under the active criminal intelligence or investigative information exemptions, with limited statutory exceptions. Fla. Stat. § 119.011(3)(c)5. Informations and indictments also are not considered active criminal intelligence or investigative information. Fla. Stat. § 119.011(3)(c)6.
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.
If a person is arrested or summoned for an offense, information that identifies the person, describes any charges on which the arrest or summons is based, and relates to the circumstances of the arrest or the issuance of the summons must be disclosed. Ind. Code § 5-14-3-5(a). If a person is received in a jail or lock-up, information that identifies the person, the reason for being placed in lock-up, including the name of the person on whose order the person is being held, the time and date that the person was received, the time and date of the person’s discharge, and the amount of the person’s bail or bond, if fixed, shall be disclosed. Ind. Code § 5-14-3-5(b).
Records of current and prior arrests, which fall into the time, date, location and circumstances of a crime or incident covered by the open records statute, generally are available to public access. See Iowa Code § 22.7(9) (2018). Iowa Code § 804.29 states that all information filed with the court to secure an arrest warrant shall remain sealed until after an arrest is made and a return of arrest warrant is filed. (2018). Booking photographs or “mugshots” are not specifically addressed but practice is to treat them as public records. In addition, under Iowa Code § 904.602, certain basic information, such as name, age, status, and offense, about individuals who have been or currently are part of the department of corrections is public information that may be disseminated.
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.
In Kentucky, virtually all court records in criminal cases are open for public inspection. Most jurisdictions within Kentucky do not require the filing of arrest records or other police records or criminal discovery materials prior to their being entered into evidence at trial or at some other pre-trial motion or evidentiary proceeding. To the extent that such records are not within a court file, they may be requested from police departments, sheriff’s departments, county jails, or other public agencies under Kentucky’s Open Records Act, KRS 61.870, et seq. However, Kentucky’s Open Records Act provides an exception to disclosure for records of law enforcement agencies compiled in the process of criminal investigation if the disclosure would harm the agency by revealing the identity of confidential informants or by premature release of information to be used in a prospective law enforcement action. See KRS 61.878(1)(h).
“The records of the arrest of a person” are exempt from disclosure under the Public Records Act “until a final judgment of conviction or the acceptance of a plea of guilty by a court of competent jurisdiction.” La. R.S. 44:3(A)(4)(a). Furthermore, pursuant to La. R.S. 44:3(A)(1), when records in the possession or control of specified “prosecutive, investigative, and law enforcement agencies” pertain “to pending criminal litigation or any criminal litigation which can be reasonably anticipated,” they are exempt from disclosure under the Public Records Act.
The “initial report of the officer or officers investigating a complaint,” however, is a public record. That report must contain: “(i) a narrative description of the alleged offense, including appropriate details thereof as determined by the law enforcement agency; (ii) the name and identification of each person charged with or arrested for the alleged offense; (iii) the time and date of the alleged offense; (iv) the location of the alleged offense; (v) the property involved; (vi) the vehicles involved; and (vii) the names of investigating officers.” La. R.S. 44:3(A)(4).
Arrest records may be expunged, however, in some circumstances. See La. Code Cr. P. arts. 971-996.
Electronic access to records varies from judicial district to judicial district. Some courts, typically in rural areas, do not even have websites. Clerk’s offices in urban areas, such as those in Shreveport, Baton Rouge, Covington and Gretna, do have websites with access to court records. Typically, minimal or no information is available for free, and full access, sometimes including images of documents, is available only with a paid subscription.
For New Orleans, the “Inmate Query” page of the Criminal Sheriff’s website provides access to booking information, including mugshots, for persons arrested and in custody in Orleans Parish:
In Maine, criminal history records containing both conviction and non-conviction data maintained by and at a clerk’s office are open to public inspection and copying. Administrative Order JB-05-20 “Public Information and Confidentiality” § III(A)(3) (“Individual adult public criminal history information contained in public court records maintained by and at a clerk’s office are open to public inspection and copying, and will be supplied if the records or indices are not located in a publicly accessible place.”).
Arrest records may also be available from the relevant law enforcement agency. Access to criminal records from law enforcement agencies is controlled by the Maine Criminal History Record Information Act, 16 M.R.S.A. §§ 701-710. In general, arrest records are public, and are contained in a police blotter (or the electronic equivalent), which is a public record. 16 M.R.S.A. § 708(2).
Police records that are attached as exhibits to court filings or marked as exhibits either for identification or for admission into evidence at trial are treated in the same manner as any other Case Record. Md. Rule 16-903(d) (once such exhibits are filed or marked by the court, they are subject to inspection “notwithstanding that the record otherwise would not have been subject to inspection under the Rules”); see also Baltimore Sun v. Thanos, 607 A.2d 565, 567–68 (Md. Ct. Spec. App. 1992).
Records that have not been introduced into evidence at a trial or other court proceeding or filed with the court are not considered “Judicial Records,” and are not governed by Rules 16-901, et seq. To the extent that such records remain in the custody of the police or criminal prosecutors, the press must seek access to them the same way it would seek access to any government document—by making a request under the Public Information Act (“PIA”), General Provisions, § 4-101, et seq. (governing access to public records); see also Maryland Public Information Act Manual, Office of the Attorney General (2015), available at http://www.marylandattorneygeneral.gov/Pages/OpenGov/piaManual.aspx.
While a detailed review of the PIA’s application to arrest records is beyond the scope of this Compendium, both the courts and the Maryland Attorney General’s Office have held that various records are public records subject to disclosure under the PIA. These include, for example, “a complaint, including the name and address of the victim, filed with a law enforcement agency,” “a police investigative report and arrest log that are found not contrary to the public interest,” and “a police record.” Prince George’s Cty. v. Washington Post, 815 A.2d 859, 880 (Md. Ct. Spec. App. 2003). Mug shots are considered public records as well. Pemberton v. Bethlehem Steel Corp., 502 A.2d 1101, 1119 (Md. Ct. Spec. App. 1986); see also 92 Md. Op. Att’y Gen. 26 (2007) (mug shots are not subject to the restrictions placed on “criminal history record information” by state and federal law and instead should be treated as an investigatory record of the police department subject to disclosure); id. (“there is no question that a photograph of a suspect taken by a police department . . . is a public record subject to the PIA” and “should be disclosed unless the custodian can articulate a reason why it would be ‘contrary to the public interest’ to allow inspection of the photograph”). Arrest logs listing information relating to arrests, including the name of the arrestee and the arresting officer, are also subject to disclosure. 63 Md. Op. Att’y Gen. 543 (1978); id. (arrest logs are not “records of investigation” or “investigatory files,” because they “merely reflect the end result of a police investigation” and “contain no information whatever concerning the actual investigation”).
When an individual is arrested without a warrant, Massachusetts requires a judicial determination of probable cause within 24 hours of the arrest, known as a “Jenkins determination.” Jenkins v. Chief Justice, 619 N.E.2d 324, 328–329 (Mass. 1993). The judicial officer’s probable cause determination becomes part of the public record and is presumptively open to the public. Mass. R. Crim. P. 3.1(e) & (f); see also Mass. Trial Ct. R. XI.
Under Minn. Stat. § 13.82 subd. 2, the information typically contained in arrest reports is public—e.g., name, age, sex, and last-known address of the arrested adult; time, date and place of the arrest; resistance encountered; the legal basis for the action; etc.
Under § 13.82 subd. 19, data in arrest warrant indices are confidential only until the defendant has been taken into custody, served with a warrant, or appears before the court. Data in arrest warrant indices may be disclosed at any time if the law enforcement agency believes disclosure would serve the public purpose.
Under § 13.82 subd. 26, booking photographs are public, although a law enforcement agency may temporarily withhold access if it determines that access would adversely affect an active investigation.
The Minnesota Supreme Court considered the right of access to arrest data in In re Quinn, 517 N.W.2d 895 (Minn. 1994). That case arose after a nineteen-year-old woman complained that she had been raped by a professional hockey player in a Minnesota hotel room. The police arrested the hockey player, searched the hotel room, and took statements from witnesses, including the hockey player’s teammates. Although the police chief believed a rape had occurred, the county attorney decided not to prosecute. The hockey player and his teammates subsequently obtained a temporary restraining order barring the city from releasing any of the information in the police files to the public, prompting local media and a number of other parties, including the alleged victim, to intervene. After a hearing, the district court ordered that the hockey player’s arrest record be expunged and the investigative file sealed. On appeal, the supreme court reversed, finding that release of the data would not jeopardize an ongoing investigation.
Arrest records filed in court are subject to the general rule in IV, A. Access to arrest records not filed in court is governed by the Right-to-Know Law (N.H. Rev. Stat. Ann. § 91-A) and N.H. Rev. Stat. Ann. § 594:14-a, which reads:
I. For the purposes of this section, an "arrest record" means a record created by law enforcement personnel to document the arrest of an individual 17 years of age or older. Arrest records are "governmental records" as defined in RSA 91-A and subject to disclosure in accordance with that chapter, with the exception noted in RSA 106-B:14.
II. Arrest records shall contain, at a minimum: (a) The identity of the individual arrested; (b) The identity of the arresting officer or officers unless the officer's supervisor has good cause to believe that identifying the officer would not serve the public interest; (c) A statement as to reasons why and how the arrest was made; (d) The alleged crime; and (e) Whether the arrest was made pursuant to a warrant.
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).
As specified in N.D. Sup. Ct. R. 41(5), the following arrest records are prohibited from public and media access: (1) records of deferred impositions of sentences or pretrial diversions resulting in dismissal; (2) records of a case in which the magistrate finds no probable cause for the issuance of a complaint; (3) unless exempted from redaction by N.D.R.Ct. 3.4(c), protected information: (A) except for the last four digits, social security numbers, taxpayer identification numbers, and financial account numbers, (B) except for the year, birth dates, and (C) except for the initials, the name of an individual known to be a minor, unless the minor is a party, and there is no statute, regulation, or rule mandating nondisclosure.
All juvenile court records are prohibited from public access under N.D.C.C. § 27-20-51 and Administrative Policy 402.
Arrest records that contain the names of persons who have been formally charged with an offense are public records. See State ex rel. Outlet Commc’n v. Lancaster Police Dep’t, 528 N.E.2d 175, 178 (Ohio 1998). However, confidential law enforcement investigatory records are exempt from disclosure if the records pertain to a law enforcement matter of a criminal, quasi-criminal, civil or administrative nature and if release would create a high probability of disclosing: (1) the identity of an uncharged suspect; (2) the identity of a source or witness to whom confidentiality was reasonably promised; (3) specific confidential investigatory techniques or procedures or specific investigatory work product; or (4) information that would endanger the life or physical safety of law enforcement personnel, a crime victim, a witness, or a confidential information source. R.C. § 149.43(A)(2)(a)–(d).
Despite the exception that prevents the disclosure of “investigatory information compiled for criminal law purposes” contained in ORS 192.345(3), the Oregon Public Records Law does allow for the release of arrest records. ORS 192.345 (3).
To obtain a criminal history in Oregon,
apply in writing to the Bureau of Criminal Identification of the Oregon State Police in Salem, identifying as clearly as possible the person about whose record the inquiry is being made. The Bureau will give that person 14 days’ notice that an inquiry is being made about him. The delay is intended to give the person an opportunity to exercise his or her right to inspect his or her own criminal history and to have it corrected if it is wrong. At the end of the 14 days, the Bureau will send to the person making the inquiry, information it may have about (a) any conviction of the subject in Oregon, and (b) any arrest in Oregon that is less than one year old and on which there has been no acquittal or dismissal. Included will be information on felonies, on any offense involving sexual misconduct, and on certain drug violations. Records of other misdemeanors will not be reported.
Open-Oregon, Media Handbook on Oregon Law and Court System (2000), http://www.open-oregon.com/wp-content/uploads/2010/11/Media-Guide.pdf.
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.
The Rhode Island Supreme Court has not directly addressed this question. However, the Rhode Island Superior Court has held that “[t]he fact that certain copies of this evidence may have been presented to the Grand Jury will not automatically bar its disclosure.” Heikkinen v. Kilmartin, No. PC 14-4836, 2014 R.I. Super. LEXIS 159, *8 (R.I. Super. Ct. November 18, 2014). Thus, whether an arrest record may be accessed is not absolutely prohibited, but is subject to Rhode Island Superior Court Rules of Criminal Procedure 6(e), which limits the disclosure of matters before a grand jury. See id.
Access to arrest records is not very broad, and attorneys likely won’t disclose them because of confidentiality. Inmate status via Vinelink will show incarceration records. Jail websites will show current incarceration but not necessarily past incarceration. Direct requests for criminal history reports may be made for a fee to the State Law Enforcement Division (https://catch.sled.sc.gov/).
In a case under the Texas Public Information Act (“PIA”), one Texas court of appeals has held that there is a constitutional right to access basic information about crime. See Houston Chronicle Publ’g Co. v. City of Houston, 531 S.W.2d 177, 186 (Tex. App.—Houston [14th Dist.] 1975), writ ref’d n.r.e., 536 S.W.2d 559 (Tex. 1976) (per curiam); see also City of Carrollton v. Paxton, 490 S.W.3d 187, 199 (Tex. App.—Austin 2016, pet. denied) (tracing the history of Section 552.108(c) in the Texas Public Information Act and noting that the Supreme Court of Texas has neither rejected nor endorsed the holding in Houston Chronicle Publ’g Co. v. City of Houston). Texas courts defer to the legislature for balancing the public’s right of access to non-judicial government records against abuses of such access. See Indus. Found. of the S. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 675 (Tex. 1976). The current statute on the public’s right of access to government records (but not court records) is the Texas Public Information Act (“PIA”).
Under the PIA, the public is entitled to basic information in police records about arrests and arrested persons. See Tex. Gov’t. Code Ann. §§ 552.108(c), 552.021. “Basic information includes an arrestee’s name, alias, social security number, race, sex, age, occupation, physical condition, name of arresting officer, and the charge, as well as a detailed description of the offense.” Thomas v. Cornyn, 71 S.W.3d 473, 479 (Tex. App.—Austin 2002, no pet.) (citing Tex. Att’y Gen. ORD-127 (1976)). However, detailed criminal histories, or “rap sheets,” that list each of a person’s arrests are generally not subject to disclosure because of common-law privacy concerns. See City of Carrollton v. Paxton, No. 03-13-00838-CV, 2016 WL 1566400, at *3 n.22 (Tex. App.—Austin Apr. 4, 2016, no pet.) (collecting a line of cases noting the privacy issues with publicly disclosing detailed criminal histories).
The expungement statute is a “narrow” exception to the general presumption of openness for arrest records and allows individuals to erase records of wrongful arrests. See Ex parte F.T.K., No. 13-16-00535-CV, 2018 WL 2440545, at *2 (Tex. App.—Corpus Christi–Edinburg May 31, 2018, no pet.) (mem. op.) (citing In re State Bar of Tex., 440 S.W.3d 621, 624 (Tex. 2014)); see also Tex. Code Crim. Proc. Ann. art. 55.01(a). Accordingly, courts adhere strictly to the expungement statute’s requirements. See Ex parte F.T.K., 2018 WL 2440545, at *2.
Arrest warrants after issuance are public records, but a court may restrict access before service. Utah Code § 63G-2-301(3)(m). Search warrants after execution are public records, but a court may restrict access to such warrants before trial. Id. § 63G-2-301(3)(n). Booking photographs, which are not specifically exempted under GRAMA, are presumed to be public records. See KSL-TV v. Juab Cnty. Sheriff’s Office, No. 98-01 (Utah State Rec. Comm. Feb. 20, 1998). An “initial contact report” is a public record, Utah Code § 63G-2-103(14), and is defined as including written as well as recorded records, § 63G-2-301(3)(g), such as a DUI report “prepared immediately following the incident and while the information is fresh in the reporting officer’s experience” and video recordings of traffic stops taken from dashboard cameras in the police vehicles. Utah Dep’t of Pub. Safety v. State Records Comm’n., No. 100904439, at 3 (Utah 3d Dist. June 17, 2010). And “audio and video recordings created by a body-worn camera,” Utah Code § 63G-2-302(2)(g), which is defined as “a video recording device that is carried by, or worn on the body of, a law enforcement officer and that is capable of recording the operations of the officer,” § 77-7a-103, are generally public records, except for those that “record sound or images inside a home or residence,” which are defined as private records unless they:
(i) depict the commission of an alleged crime;
(ii) record any encounter between a law enforcement officer and a person that results in death or bodily injury, or includes an instance when an officer fires a weapon;
(iii) record any encounter that is the subject of a complaint or a legal proceeding against a law enforcement officer or law enforcement agency;
(iv) contain an officer involved critical incident as defined in Section 76-2-408(1)(d); or
(v) have been requested for reclassification as a public record by a subject or authorized agent of a subject featured in the recording.
The Vermont Public Records Act provides that “records reflecting the initial arrest of a person, including any ticket, citation, or complaint issued for a traffic violation, as that term is defined in 23 V.S.A. § 2302; and records reflecting the charge of a person shall be public.” 1 V.S.A. § 317(c)(5).
The public has a statutory right of access to arrest information under Virginia’s Freedom of Information Act, Va. Code § 2.2-3700, et seq. (“VFOIA”). VFOIA requires that the public body responsible for the arrest provide, upon request, “[i]nformation relative to the identity of any individual, other than a juvenile, who is arrested and charged, and the status of the charge or arrest,” unless disclosure is prohibited by some other provision of law. See Va. Code § 3706(A)(3). The public body can disclose the information in any appropriate format, including the arrest records themselves. See Harmon v. Ewing, 285 Va. 335, 338, 745 S.E.2d 415, 418 (2013).
Independent of VFOIA, if arrest records are submitted as evidence at trial or in connection with a pretrial proceeding, they likely become judicial records to which a presumptive right of access applies. See Shenandoah Pub. House, Inc. v. Fanning, 235 Va. 253, 262 n.3, 368 S.E.2d 253, 257 n.3 (1988) (no common law right of access to documents not filed with the court). See also Tianti v. Rohrer, 91 Va. Cir. 111, 2015 WL 12588950, *4 (Fairfax Cir.Ct. Aug. 14, 2015) (“VFOIA, a statute designed to ensure the public certain access to government records, does not provide a compelling interest sufficient to rebut the presumption of openness attached to judicial records.”) (emphasis in original).
Arrest records in criminal case files are treated like other court records and are presumptively accessible to the public unless they have been sealed pursuant to the stringent tests applicable to all court records.
Records held by state or local police agencies are subject to Washington’s Public Records Act, RCW ch. 42.56, and are presumptively subject to disclosure upon request unless a specific exemption applies. Police investigative records may be withheld or redacted to the extent nondisclosure is essential to law enforcement or to protect a person’s right to privacy. RCW 42.56.240(1). Investigative records related to pending criminal matters are presumptively subject to disclosure once a suspect has been arrested and referred to the prosecutor for a charging decision. Seattle Times Co. v. Serko, 170 Wn.2d 581, 243 P.3d 919 (2010); Cowles Publ’g Co. v. Spokane Police Dep’t, 139 Wn.2d 472, 987 P.2d 620 (1999).
In West Virginia, police incident reports are “public records” subject to disclosure under the West Virginia Freedom of Information Act, W.Va. Code § 29B–1–2. Ogden Newspapers, Inc. v. City of Williamstown, 192 W. Va. 648, 651, 453 S.E.2d 631, 634 (1994). That court also observed that under the West Virginia Freedom of Information Act, there is an exemption from disclosure for “records of law-enforcement agencies that deal with the detection and investigation of crime and the internal records and notations of such law-enforcement agencies which are maintained for internal use in matters relating to law enforcement[.]” W.Va. Code § 29B-1-4(4)(A).
However, “the fact that a document is a law enforcement record does not automatically exclude it from disclosure under the FOIA. Once a document is determined to be a law enforcement record, it may still be disclosed if society’s interest in seeing the document outweighs the government's interest in keeping the document confidential.” Ogden Newspapers, Inc. v. City of Williamstown, 192 W. Va. 648, 653, 453 S.E.2d 631, 636 (1994). The court in Ogden Newspapers further explained that, “to the extent that information in an incident report dealing with the detection and investigation of crime will not compromise an ongoing law enforcement investigation, we hold that there is a public right of access under the West Virginia Freedom of Information Act.” Id. at 654.
The court suggested that an incident report may include information that must be disclosed along with information that is exempt from disclosure because it falls within the scope of the law enforcement exemption, citing a Texas case where a court had distinguished information in an offense report as follows:
“[T]here was a right of access to information contained on the first page of the offense report ‘structured to include the offense committed, location of the crime, identification and description of the complainant, the premises involved, the time of the occurrence, property involved, vehicles involved, description of the weather, a detailed description of the offense in question, and the names of the investigating officers.’ This right of access did not include parts of the offense report containing a suspect's confession, or officers’ views on the credibility of witnesses, statements by informants, laboratory tests or ballistics reports, fingerprint comparisons, or officers' speculations about the guilt of the suspect.”
In West Virginia, police incident reports concerning juveniles are treated differently from records concerning adults, and the identity of juveniles in incident reports are deemed confidential and not subject to disclosure. However, that does not mean that there is a blanket of nondisclosure concerning incident reports concerning juveniles. Rather, the West Virginia Supreme Court holds that, “when incidents affecting public safety and welfare can be publicized without revealing the identities of juveniles involved by means other than the application of a blanket rule of nondisclosure, an incident report should be released to the press with the names of any juveniles (along with any information that could reasonably lead to the discovery of the identity of the juveniles) redacted.” Ogden, 192 W. Va. at 655, 453 S.E.2d at 638. “West Virginia confidentiality statutes should likewise be read to promote the goal of protecting juvenile anonymity, rather than broadly construed to prevent disclosure of otherwise public information that would be contained in redacted police incident reports involving juveniles.” 192 W. Va. at 655–56, 453 S.E.2d at 638–39.
The West Virginia Supreme Court explained that, “factual data contained in a properly redacted incident report does not rise to the level of a ‘juvenile record’ protected from disclosure (absent court order) by the confidentiality statutes. Therefore, allowing access to these reports will not impede any law enforcement function, nor will it compromise juvenile confidentiality.” 192 W. Va. at 656, 453 S.E.2d at 639.
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.
Individual arrests records and mug shots are public records in Wyoming. However, “rap sheets” or criminal histories maintained by law enforcement for the specific purpose of identifying potential suspects are confidential pursuant to the Criminal History Records Act. W.S. §7-19-101 et. seq.