4. Investigatory records
Law enforcement “investigative reports and related investigatory material” are not public records. Ala. Code § 12-21-3.1(b). There is authority for closure of the following records pertaining to active investigations:
(1) Records regarding pending criminal investigations. Stone v. Consol. Publ’g Co., 404 So. 2d 678, 681 (Ala. 1981) (establishing a precatory, not mandatory, exclusion).
(2) Information regarding witness identification and reports from such witnesses, at the discretion of the Police Department. Birmingham News Co. v. Deutcsh, CV 85-504-132 JDC (Cir. Ct. of Jefferson County, Ala., Equity Div., Aug. 19, 1986) (consent order).
(3) Search warrants, arrest warrants, supporting affidavits and depositions, until the search warrant or arrest warrant is executed and returned. 197 Op. Att’y Gen. Ala. 13 (Oct. 10, 1984).
(4) Prison incident reports with information regarding a pending criminal investigation. Allen v. Barksdale, 32 So. 3d 1264 (Ala. 2009).
(5) Autopsy reports that relate to a pending investigation. Op. Att'y Gen. Ala. No. 2007-015, 2006 Ala. AG LEXIS 142 (Dec. 4, 2006).
(6) National Fire Incident Reporting Systems forms that relate to a pending investigation. Op. Att'y Gen. Ala. No. 2006-134, 2006 Ala. AG LEXIS 97 (Aug. 17, 2006).
There is authority for public access to the following records of active investigations:
(1) Complaint reports, including the front side of incident/offense reports subject to the right of the sheriff to withhold or redact certain information on a case-by-case basis depending on the nature of the case, the status of the investigation, whether the victim would be subject to threats or intimidation, or when public disclosure would hinder the investigation. Washington Cty. Publ’ns v. Wheat, No. CV-99-94 (Cir. Ct. of Washington Cty., Ala., May 1, 2000); Op. Att’y Gen. Ala. No. 2000-197, 2000 Ala. AG LEXIS 112 (July 19, 2000); Op. Att’y Gen. Ala. No. 2000-004, 1999 Ala. AG LEXIS 89 (Oct. 7, 1999); see also Birmingham News Co. v. Watkins, No. 38389 (Cir. Ct. of Jefferson Cty., Ala., Oct. 30, 1974) (based on First Amendment, not Alabama’s Public Records Law, with discretion for police department to withhold portions of reports or entire reports if and as necessary to prevent “actual interference” with law enforcement).
(2) Search and arrest warrants, with supporting affidavits and depositions, after a search warrant or arrest warrant is executed and returned. 197 Op. Att’y Gen. Ala. 13 (Oct. 10, 1984); see also Op. Att'y Gen. Ala. No. 2008-030, 2007 Ala. AG LEXIS 97 (Dec. 28, 2007).
Law enforcement records that could reasonably be expected to interfere with enforcement proceedings may be withheld from disclosure under the Public Records Act. AS 40.25.120(6)(A). In Basey v. State, Department of Public Safety, the Alaska Supreme Court held that the state was not justified in withholding law enforcement documents pursuant to AS.40.25.120(a)(6) without a showing that disclosure of the requested records could reasonably be expected to interfere with enforcement proceedings. 408 P.3d at 1180. Simply asserting that there was a pending criminal case was insufficient reason to withhold documents relating to a joint state and federal investigation of the requester. Since law enforcement records are exempt from disclosure “only to the extent” that they could reasonably be expected to interfere with enforcement proceedings, records relating to closed investigations would presumably be open unless another exemption applies. AS 40.25.120(6)(A). Compare, Basey at 1180.
In Cox Arizona Publications Inc. v. Collins, 175 Ariz. 11, 14, 852 P.2d 1194, 1998 (1993), the Arizona Supreme Court reversed the court of appeals’ ruling that the public is not entitled to examine police reports in “an active ongoing criminal prosecution.” The Arizona Supreme Court held that such a “blanket rule . . . contravenes the strong policy favoring open disclosure and access.” Thus, public officials bear the “burden of showing the probability that specific, material harm will result from disclosure” before it may withhold police records. Mitchell v. Superior Court, 142 Ariz. 332, 335, 690 P.2d 51, 54 (1984).
However, A.R.S. § 13-2813 prohibits disclosing “an indictment, information or complaint . . . before the accused person is in custody or has been accused.”
“[R]eports of ongoing police investigations are not generally exempt from [Arizona’s] public records law,” so they must be disclosed unless the law enforcement agency can “specifically demonstrate how production of the documents would violate rights of privacy or confidentiality, or would be detrimental to the best interests of the state.” Cox Ariz. Publ’ns, 175 Ariz. at 14, 852 P.2d at 1198 (internal quotation marks omitted).
There is an exemption for “undisclosed investigations by law enforcement agencies of suspected criminal activity.” Ark. Code Ann. § 25-19-105(b)(6). A record must be investigative in nature to fall within the exemption. Arrest reports, jail logs, incident reports, and shift sheets do not qualify, Hengel v. City of Pine Bluff, 307 Ark. 457, 821 S.W.2d 761 (1991), nor do arrest disposition reports maintained by jails. Ark. Op. Att’y Gen. No. 92-207. Similarly, accident reports, traffic citations, dispatch logs, and records reflecting results of blood alcohol tests in DWI cases are not exempt. Ark. Op. Att’y Gen. Nos. 96-070, 87-319, 87-115, 86-020. Prison-transport manifests also are not exempt under this exemption, because they are records “kept in the regular course of business.” Holladay v. Glass, 2017 Ark. App. 595, 534 S.W.3d 173 (2017). By contrast, the Hengel case indicates that information such as an officer’s speculation about a suspect’s guilt, his or her views as to the credibility of witnesses, and statements by informants fall within the exemption. See also Ark. Op. Att’y Gen. No. 99-110 (exemption applies to opinions and impressions of investigating officer). The Supreme Court has suggested, without deciding, that records generated as a result of intelligence or surveillance activity unrelated to a specific crime fall within the exemption. Johninson v. Stodola, 316 Ark. 423, 872 S.W.2d 374 (1994) (police records of gang membership).
Furthermore, the exemption applies only to those agencies that “investigate suspected criminal activity under the state penal code and have enforcement powers.” Legislative Joint Auditing Committee v. Woosley, 291 Ark. 89, 722 S.W.2d 581 (1987) (holding exemption inapplicable to joint auditing committee of the legislature). See also Ark. Op. Att’y Gen. Nos. 87-135 (exemption includes coroners), 84-139 (exemption applies to Employment Security Division), 80-149 (exemption does not apply to Commission on Human Resources).
Only records of “ongoing criminal investigations” are exempt. Martin v. Musteen, 303 Ark. 656, 799 S.W.2d 540 (1990) (criminal investigation was ongoing for FOIA purposes even though charges had been filed against one of several suspects).
If an investigation has been concluded, the exemption no longer applies and the records are open. McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989). That the records may contain names of confidential informants or other sensitive information is irrelevant. Ark. Op. Att’y Gen. No. 90-305. Records concerning investigation of a juvenile are open after the investigation is completed, provided that the juvenile has not been arrested. Ark. Op. Att’y Gen. No. 98-151.
An investigation is not ongoing when a police department has closed the case by “administrative action,” McCambridge v. City of Little Rock, supra, or when a prosecuting attorney decides not to pursue criminal charges. Ark. Op. Att’y Gen. No. 99-110. Otherwise, it is not clear when an investigation is considered at an end for FOIA purposes. Compare Ark. Op. Att’y Gen. Nos. 88-055 (investigation is closed when law enforcement agency turns case over to the prosecutor), 89-101 (investigation is open until trial is completed or statute of limitations has run), 89-311 (investigation is closed when case “proceeds to trial”), 90-305 (investigation ends when charges are filed). The Attorney General has opined that “there is no bright line rule,” and the point of closure may be marked by any of the defendant’s arrest, the completion of trial, the conclusion of appeal, or another event. Ark. Op. Att’y Gen. No. 2002-303. To the extent that this issue turns on the facts of a given case, it is a question for the trial court. Martin v. Musteen, supra. If records are requested that the police department contends are exempt because the investigation is closed, the Court should conduct an in camera review of the investigation file to determine whether the police department is taking any action in furtherance of the investigation. Dep’t of Ark. State Police v. Keech Law Firm, P.A., 2017 Ark. 143, 516 S.W.3d 265 (2017). When activity in the file is “sparse,” the Court can determine that the investigation is closed for the purposes of the FOIA exemption. Id.
The exemption applies to copies of records in police files when the originals have been forwarded to another law enforcement agency that is continuing the investigation. Ark. Op. Att’y Gen. Nos. 98-127, 92-237.
Investigatory records themselves are exempt from disclosure under Section 6254(f) of the Government Code. Cal. Gov’t Code § 6254(f). The exemption for investigatory records under 6254(f) is discretionary. Nothing precludes an agency from disclosing more than it is required to under the law. Cal. Gov’t Code § 6253(e).
The exemption for investigatory records and files does not terminate when the investigation terminates. Williams v. Superior Court, 5 Cal. 4th 337, 362, 852 P.2d 377, 19 Cal. Rptr.2d 882 (1993). The exemption has been held to apply to letters prepared after the conclusion of an investigation but that were related exclusively to the investigation. Rackauckas v. Superior Court, 104 Cal. App. 4th 169, 179, 128 Cal. Rptr. 2d 234 (2002).
While investigatory records are exempt from disclosure, specified facts from investigatory or security records, must be disclosed unless disclosure would endanger the successful completion of an investigation, or related investigation, or endanger a person involved in the investigation. Cal. Gov’t Code §§ 6254(f)(1), (f)(2) and (f)(3).
For arrests, the agency must disclose such facts as the name, occupation, and detailed physical description of every individual arrested by the agency, as well as 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 must be disclosed. Cal. Gov’t Code § 6254(f)(1).
For complaints or requests for assistance, the agency must disclose such facts as the time and nature of the response, the time, date and location of occurrence, the time and date of the report, the name and age of the victim, the factual circumstances surrounding the crime or incident, and a general description of any injuries, property, or weapons involved. Notwithstanding these mandatory disclosure requirements, an agency, at the victim’s request, may withhold the name of a victim of certain specified sexual crimes as set forth in the statute. Cal. Gov’t Code § 6254(f)(2).
Additionally, to obtain address information for individuals arrested by an agency or victims of crimes other than those expressly set forth in the statute, the requester must state under penalty of perjury that the information is sought for one of five specified purposes: scholarly, journalistic, political, governmental, or investigation purposes by a licensed private investigator. Cal. Gov’t Code § 6254(f)(3). Moreover, the requester must declare under penalty of perjury that the information obtained shall not be used, directly or indirectly, to sell a product or service. Id.
The mandatory disclosure provision of Section 6254(f)(1) relating to arrest information has been held to apply only to those records pertaining to contemporaneous police activity and not to a request for arrest information about closed investigations going back ten years. County of Los Angeles v. Superior Court (Kusar), 18 Cal. App. 4th 588, 598-99, 22 Cal. Rptr. 2d 409 (1993). More recently, however, this holding has come into question in Fredericks v. Superior Court, 233 Cal. App. 4th 209, 234 (2015), where the court refused to read any time limitation into the disclosure provisions of Section 6254(f)(2), relating to complaints and calls for assistance. The court reasoned, in part, that the statutory language the Kusar court relied on to imply such a limitation was no longer present in the text of the statute. Id. at 233.
Colo Rev. Stat. § 24-72-304(1) provides that the custodian can exercise its discretion in determining whether disclosure of criminal justice records other than "records of official action" would be "contrary to the public interest."
The statute does not differentiate between active and closed investigations. Investigatory records are subject to public inspection unless, in the opinion of the records custodian, their disclosure would be "contrary to the public interest." See Pretash v. City of Leadville, 715 P.2d 1272 (Colo. App. 1985) (inspection of records of active investigations may be denied if disclosure would impair or impede the investigation).
While a custodian may deny access to records of the investigations conducted by "any sheriff, prosecuting attorney, or police department," Colo. Rev. Stat. § 24-72-204(2)(a)(I), courts have interpreted "prosecuting attorney" narrowly so as to apply only to attorneys investigating "with an eye toward future criminal prosecution." Shook v. Pitkin Cty. Bd. of Cty. Comm’rs, 411 P.3d 158, 161-62 (Colo. App. 2015) (although county attorney investigated whether individual had violated land use code and, if so, how to bring her back into compliance, investigation exemption did not apply because there was no evidence that attorney investigated "for the purpose of a criminal prosecution").
In City of Hartford v. FOIC, 201 Conn. 421, 518 A.2d 49 (1986), the Supreme Court held that certain police department internal affairs records were not exempt from disclosure under Conn. Gen. Stat. § 1-210(b)(2). See also Conn. Gen. Stat. § 1-210(b)(3) (law enforcement exemption); Dep't of Pub. Safety v. FOIC, 51 Conn. App. 100, 720 A.2d 268 (1998); Kirschner v. FOIC, No. CV 97-0567162, 1998 WL 27829 (Conn. Super. Jan. 15, 1998); Records Outline at II.A.2.c. FOIA exempts from disclosure any "information to be used in a prospective law enforcement action if prejudicial to such action." Conn. Gen. Stat. § 1-210(b)(3). There are no other specific provisions or reported authorities regarding rules for active investigations. See also Conn. Gen. Stat. § 1-210(b)(3) (law enforcement exemption); Records Outline at II.A.2.c. There are no specific provisions or reported authorities regarding rules for closed investigations. See also Conn. Gen. Stat. § 1-210(b)(3) (law enforcement exemption); Records Outline at II.A.2.c.
District of Columbia
Under D.C. Code § 2-534 (a)(3), "[i]nvestigatory records compiled for law-enforcement purposes" may be exempt from disclosure," only to the extent that production of such records" could interfere with enforcement proceedings, deprive a person of an impartial adjudication, invade personal privacy, disclose a confidential source, disclose investigative techniques, or endanger the life or physical safety of law enforcement personnel. See also Fraternal Order of Police, Metro. Labor Committee v. D.C., 82 A.3d 803, 815 (D.C. 2014) (holding that records concerning use of breathalyzer were exempt only if "(1) the documents requested . . . [were] compiled for law enforcement purposes, and (2) disclosure of those documents would interfere with enforcement proceedings.").
The rules for active and closed investigations have not been specifically addressed.
The Act limits access to certain pending investigation or prosecution records of law enforcement, prosecution or regulatory agencies. O.C.G.A. § 50-18-72(a)(4). The exemption, however, specifically provides that "initial police arrest reports and initial incident reports" are public records and must be disclosed. It further provides that “an investigation or prosecution shall no longer be deemed to be pending when all direct litigation involving such investigation and prosecution has become final or otherwise terminated.” And it clarifies that the exception “shall not apply to records in the possession of an agency that is the subject of the pending investigation or prosecution.” Id.
An individual has a significant privacy interest in “[i]nformation identifiable as part of an investigation into a possible violation of criminal law, except to the extent that disclosure is necessary to prosecute the violation or to continue the investigation.” Haw. Rev. Stat. § 92F-14(b)(2). OIP has opined that an individual’s significant personal privacy interest in information identifying the individual as a suspect in a criminal investigation is not outweighed by the public interest in disclosure. Disclosure of the Identity of a County Employee Who Is the Subject of a Criminal Investigation, OIP Op. Ltr. No. 92-19 (Oct. 7, 1992).
Police reports for a closed criminal investigation which resulted in a deferred acceptance of nolo contendere plea must be made available for public inspection and copying. Disclosure of Police Reports, OIP Op. Ltr. No. 99-02 (Apr. 5, 1999). However, before disclosure, in addition to information identifying the victim and witnesses, the defendant’s social security number and home address and phone number must be redacted as information excepted from disclosure as government records which, if disclosed, would constitute a clearly unwarranted invasion of personal privacy. Id.
Idaho Code § 74-105(1) provides that investigatory records of a law enforcement agency, as defined in section 74-101(7), Idaho Code, under the conditions set forth in section 74-124, Idaho Code, are exempt from disclosure under the Public Records Act.
Idaho Code § 74-124(1) provides that active investigatory records compiled for law enforcement are exempt from disclosure when the production of such records would: (a) interference with enforcement proceedings; (b) deprive a person of a right to a fair trial or an impartial adjudication; (c) constitute an unwarranted invasion of personal privacy; (d) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement agency in the course of a criminal investigation, confidential information furnished only by the confidential source; (e) disclose investigative techniques and procedures; or (f) endanger the life or physical safety of law enforcement personnel. In practice, law enforcement agencies nearly always claim that one or more of the categories described above prevents disclosure.
“Investigatory record” shall not include: (a) the time, date, location, and nature and description of a reported crime, accident or incident; (b) the name, sex, age, and address of a person arrested, except as otherwise provided by law; (c) the time, date, and location of the incident and of the arrest; (d) the crime charged; (e) documents given or required by law to be given to the person arrested; (f) information and indictments except as otherwise provided by law; and (g) criminal history reports. Idaho Code § 74-124(3).
Idaho Code § 74-124(3) provides that “an inactive investigatory record shall be disclosed unless the disclosure would violate the provisions of subsection (1)(a) through (f) of this section.”
These records are open. unless release of the records would compromise an ongoing or reasonably contemplated investigation. See generally 5 ILCS 140/7(1)(d).
Day v. City of Chicago, 388 Ill. App. 3d 70, 80, 902 N.E.2d 1144, 1153 (1st Dist. 2009) (Ongoing investigation exemption did not apply when inmate convicted 14 years earlier requested murder investigation file).
Open, unless release of the records would interfere with the investigation. See 5 ILCS 140/7(1)(d)(i); Day v. City of Chicago, 388 Ill. App. 3d 70, 80, 902 N.E.2d 1144, 1153 (1st Dist. 2009) (Ongoing investigation exemption did not apply when inmate convicted 14 years earlier requested murder investigation file).
Under Indiana Code Section 5-14-3-4(b)(1), access to investigatory records of law enforcement agencies may be provided or denied at the agency’s discretion. The statute does not distinguish between active or closed investigations.
However, under Indiana Code Section 5-14-3-5(b)(1), certain law enforcement information must be made available. See Althaus v. Evansville Courier Co., 615 N.E.2d 441, 446 (Ind. Ct. App. 1993) (holding that the investigatory records exception applied to the coroner’s files). This includes information about an individual who is arrested or jailed and also police logs of crimes, accidents and complaints. Ind. Code § 5-14-3-5(b)(1); see Post-Tribune v. Police Dep’t of City of Gary, 643 N.E.2d 307, 308–09 (Ind. 1994) (holding that the police department satisfied its obligation to provide the “location” of rape by providing the most specific location that reasonably protected the victim’s privacy, not requiring the department to provide the exact address). Criminal intelligence information is confidential under Indiana Code Section 5-2-4-6 and is an exception to the general disclosure rule under Section 5-14-3-4(b)(25).
Iowa Code § 22.7(5) excludes from required disclosure peace officers’ investigative reports, if the information is part of an ongoing investigation. Courts have acknowledged the State’s “real and important interest” in ensuring investigatory records are kept confidential. E.g., State ex re. Shanahan v. Iowa Dist. Ct. for Iowa Cty., 356 N.W.2d 253, 259 (Iowa 1984) (denying civil litigants access to confidential investigation files on a double homicide in a wrongful death case).
Defendants are entitled to access certain statements, reports, photographs, and other physical evidence prior to trial. State v. Eads, 166 N.W.2d 766, 768 (Iowa 1969). A defendant is entitled to access to “all evidentiary information which is in possession of the State and which is necessary to assure him a fair trial.” Id. To access this information, a defendant should request the documents and evidenced desired with specificity. Id. at 770 (citing State v. Kelly, 91 N.W.2d 562, 562 (Iowa 1958) (affirming the trial court’s denial of a defendant’s “broad and blind fishing expedition” where the defendant failed to demand specific documents and failed to show any such reports or evidence were in the State’s possession or even in existence)). A defendant is not entitled to gain access to copies of police reports as this could “unreasonably and unnecessarily impede the investigatory process . . . .” Id. at 774.
The Iowa Court of Appeals did grant a prisoner access to police investigative files following the prisoner’s criminal conviction where the State failed to establish that public interests would suffer by disclosure of the files and so the records were not privileged under Iowa Code § 22.7(5). State v. Henderson, No. 01-0295, 2002 WL 987851, at *3 (Iowa Ct. App. May 15, 2002). In this case, the State did not present evidence that police relied upon confidential informants for information during the investigation and the case was not ongoing. Id. at *2. Without evidence of a particular public interest that would be affected, the Iowa Court of Appeals held the investigative files could be properly disclosed to the prisoner. Id. at *3.
Witness statements may also not be privileged where they were not made in official confidence to the officer. Shannon by Shannon v. Hansen, 469 N.W.2d 412, 414 (Iowa 1991). The Iowa Supreme Court applied a three-part test to determine whether witness statements were protected from disclosure to private litigants in a civil action surrounding a car accident. Id. The test requires: “(1) a public officer is being examined, (2) the communications made to the officer were in official confidence, and (3) the public interests would suffer by disclosure.” Id. (citing State ex rel. Shanahan v. Iowa Dist. Ct., 356 N.W.2d 253, 257 (Iowa 1984)). In Iowa, a report filed by a law enforcement officer with the Iowa Department of Transportation regarding a motor vehicle accident “is available to any party to the accident and to certain others” under Iowa Code § 321.271. Id. at 415. Further, statements made by witnesses to law enforcement investigating a motor vehicle accident are not made in official confidence and thus their disclosure is authorized under Iowa Code § 321.371. Id. The court here recognized a distinction between criminal and accident investigations and between ongoing and completed investigations. See id.
Investigatory records are generally closed to the public. However, a district court may order disclosure in an action brought under K.S.A. 45-222 (civil remedies to enforce KORA) if the court finds that disclosure: (1) is in the public interest; (2) would not interfere with any prospective law enforcement action; (3) would not reveal the identity of any confidential source or undercover agent; (4) would not reveal confidential investigation techniques or procedures not known to the general public; (5) would not endanger the life or physical safety of any person; and (6) would not reveal the name, address, phone number or any other information which specifically and individually identifies the victim of any sexual offense in Article 35 of Chapter 21 of the Kansas Statutes Annotated, and amendments thereto. K.S.A. 45-221(a)(10).
Records compiled in the process of detecting, preventing or investigating violations of criminal law are not open. Mug shots are not open. Kan. Att’y Gen. Op. 1987-25.
Disclosure of KBI reports to applicants for license under Kansas Parimutuel Racing Act is permissive under KPRA and Kansas Open Records Act, if K.S.A. 45-221(a)(10)(A-F) are followed. Kansas Racing Management v. Kansas Racing Commission. 244 Kan. 343, 770 P.2d 423 (1989).
Records of ongoing investigations may be closed. See Ky. Rev. Stat. 61.878(1)(h). The exception may be invoked “only when the agency can articulate a factual basis for applying it, only, that is, when, because of the record's content, its release poses a concrete risk of harm to the agency in the prospective action. A concrete risk, by definition, must be something more than a hypothetical or speculative concern.” City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 851 (Ky. 2013).
Records of concluded investigations are open. See Ky. Rev. Stat. 61.878(1)(h).
Records of active investigations are exempt, except for the initial police report. La. Rev. Stat. Ann. § 44:3(A)(l), (4). In addition, the home address and photograph of a law enforcement officer under investigation, as well as any other information deemed confidential by the law enforcement agency, may not be disclosed. La. Rev. Stat. Ann. § 40:2532; Op. Att'y Gen. 93-323.
Records of closed investigations are public records only after pending or reasonably anticipated litigation is finally adjudicated or settled. La. Rev. Stat. Ann. § 44:3(A)(l). In re Matter Under Investigation, 15 So.2d 972, 992 (La. 2009) (determination of whether criminal litigation is “reasonably anticipated” must be made on case-by-case basis in contradictory hearing with opportunity to present evidence and examine witnesses). Internal Affairs investigative records may be expunged upon request of the officer if the officer is exonerated or the agency finds that the complaint is unfounded or unsustained. Op Att'y Gen. 94-216.
Because there is no statute of limitations on a murder charge, the “reasonably anticipated criminal investigation” exemption applies to public records requests relating to the deaths of 43 patients at a New Orleans hospital following Hurricane Katrina, even though a grand jury refused to indict the only person – a doctor – that prosecutors sought to charge, and even though, as a practical matter, it is clear that no one ever will be charged over the deaths. Does v. Foti, 81 So.3d 101 (La.App. 1st Cir. 2011).
Access to investigatory records is governed by the Intelligence and Investigative Record Information Act, 16 M.R.S.A. §§ 801-809. With certain exceptions a record that is or contains intelligence and investigative record information may not be disseminated by a Maine criminal justice agency (a defined term) to any person or public or private entity if there is a reasonable possibility that public release or inspection of the record would cause certain harm identified by statute. See 16 M.R.S.A § 804(1)-(12). The list follows:
- Interfere with law enforcement proceedings;
- Result in dissemination of prejudicial information concerning an accused person or concerning the prosecution's evidence that will interfere with the ability of a court to impanel an impartial jury;
- Constitute an unwarranted invasion of personal privacy;
- Disclose the identity of a confidential source;
- Disclose confidential information furnished only by the confidential source;
- Disclose trade secrets or other confidential commercial or financial information designated as such by the owner or source of the information or by the Department of the Attorney General;
- Disclose investigative techniques and procedures or security plans and procedures not generally known by the general public;
- Endanger the life or physical safety of any individual, including law enforcement personnel;
- Disclose information designated confidential by some other statute;
- Interfere with civil enforcement proceedings conducted by the Department of the Attorney General or by a district attorney’s office;
- Disclose conduct or statements made or documents submitted by any person in the course of any mediation or arbitration conducted under the auspices of the Department of the Attorney General;
- Identify the source of a complaint made to the Department of the Attorney General involving violations of consumer or antitrust laws.
Records of investigations conducted by the Attorney General, a State's Attorney, a city or county attorney, a police department, or a sheriff; an investigatory file compiled for any other law enforcement, judicial, correctional, or prosecution purpose; or records that contain intelligence information or security procedures of the Attorney General, a State's Attorney, city or county attorney, a police department, a local correctional facility, or a sheriff are exempt from disclosure. § 4-351(a). Blythe v. State, 161 Md. App. 492, 525, 870 A.2d 1246, 1264, cert. granted, 388 Md. 97, 879 A.2d 42 (2005), Prince George's County v. Washington Post Co., 149 Md. App. 289, 324, 815 A.2d 859, 880 (2003); see also PIA Manual, at 3-34.
The documents of an investigation by a police department, sheriff's office or any of the other law enforcement agencies specifically listed in § 4-351(a) are presumptively compiled for law enforcement or prosecution purposes. Office of the State Prosecutor v. Judicial Watch Inc., 356 Md. 118, 737 A.2d 592 (1999); Superintendent, Maryland State Police v. Henschen, 279 Md. 468, 475, 369 A.2d 558 (1977); Blythe v. State, 161 Md. App. 492, 525-26, n.6, 870 A.2d 1246, cert. granted, 388 Md. 97, 879 A.2d 42 (2005). For example, the State's Attorney is neither required nor authorized to disclose a police investigative report or any part of it that was used for grand jury proceedings. 64 Op. Att'y Gen. 236 (1979).
Moreover, where the agency's files are prepared in anticipation of government litigation and adjudicative proceedings are pending or contemplated, such files are compiled for law enforcement purposes. ACLU v. Leopold, 223 Md. App. 97, 128 (2015); Equitable Trust Co. v. Maryland Comm'n on Human Relations, 42 Md. App. 53, 75, 399 A.2d 908 (1979), rev'd on other grounds, 287 Md. 80, 411 A.2d 86 (1980); see also 82 Op. Att'y Gen. 49, 50-51 (1997) (finding MVA records compiled during course of investigation into driver's fitness to be "investigatory files," but also finding such files are generally subject to disclosure to the driver).
If the agency is not a law enforcement agency specifically listed in the PIA, then it must show that its records were compiled for law enforcement or prosecution purposes in order for the exemption to apply. Office of the State Prosecutor, 356 Md. at 140, 737 A.2d at 604 (distinguishing Fioretti, 351 Md. at 78-79, 716 A.2d at 264-65 (Board of Dental Examiners was not among specifically enumerated entities and was required, therefore, to prove both that it was conducting an investigation and that production of individual records sought would prejudice that investigation)); see also Equitable Trust Co., 42 Md. App. 53, 75. Thus, for example, because the Human Relations Commission is not a named law enforcement agency, it is required to make such a showing. Id.
An agency might have records obtained from investigatory files of another agency. In these circumstances, the agency must withhold investigatory material if the agency that provided the information would itself deny access under the investigatory records exemption. PIA Manual, at 3-35 (citing 89 Opinions of the Attorney General 31, 44 (2004)).
A person whose complaint of police misconduct gives rise to an internal police investigation of the incident, is not the subject of the internal investigation and is not, therefore, a person in interest. Mayor and City Council of Baltimore, v. Maryland Comm. Against the Gun Ban, 329 Md. 78, 617 A.2d 1040 (1993); see also Briscoe v. Mayor of Baltimore, 100 Md. App. 124, 640 A.2d 226 (1994) (complaining witness was not a person in interest, so denial of inspection of Internal Investigation Division file was justified on public interest grounds). Thus, if the custodian believes that disclosure of records pertaining to the investigation is not in the public interest, the PIA does not require disclosure to the complaining party. Id.
A custodian may deny access to a person in interest only to the extent that disclosure would interfere with a valid and proper law enforcement proceeding, deprive another person of a right to a fair trial or impartial adjudication, constitute an unwarranted invasion of privacy, disclose the identity of a confidential source, disclose an investigative technique, prejudice an investigation, or endanger the life or physical safety of an individual. § 4-351(b). Because of a person in interest's favored status, a custodian must point out precisely which of the seven grounds enumerated in § 4-351(b) justify withholding of an investigatory record and explain precisely why it would do so. Blythe v. State, 161 Md. App. 492, 531, 870 A.2d 1246, cert. granted, 388 Md. 97, 879 A.2d 42 (2005)); see also PIA Manual, at 3-36.
Although this section appears to place a heavy burden upon a custodian seeking to justify nondisclosure to a person in interest, Maryland case law indicates to the contrary. See Attorney General v. Gallagher, 359 Md. 341, 355, 753 A.2d 1036, 1044 (2000) (person in interest was not entitled to obtain disclosure of records falling within mandatory exemptions of the Act); Office of the State Prosecutor, 356 Md. at 140, 737 A.2d at 604. Faulk v. States Attorney, 299 Md. 493, 474 A.2d 880 (1984). For example, the State is not required to make a particularized showing that the disclosure of investigatory police records compiled for law enforcement purposes to a defendant in a pending criminal proceeding would interfere with that proceeding; a generic determination of interference can be made whenever a defendant in a pending criminal proceeding seeks access to investigatory police reports relating to that proceeding. Id. However, a convicted defendant may obtain access to the prosecutorial file concerning the defendant absent the presence of one or more of the factors stated in subparagraph 2. See 81 Opp. Att'y Gen. 251 (1996).
Once an investigation is closed, investigatory files are subject to disclosure, based upon an amendment to the comparable FOIA exemption. See Fioretti v. Maryland State Board of Dental Examiners, 351 Md. 66, 716 A.2d 258 (1998); Bowen v. Davison, 135 Md. App 152, 761 A.2d 1013 (2000). Once an investigation has been closed, disclosure is considered less likely to be "contrary to the public interest." City of Frederick v. Randall Family, LLC, 154 Md. App. 543, 562-567, 841 A.2d 10 (2004), Prince George's County v. Washington Post Co., 149 Md. App. 289, 33, 815 A.2d 859 (2003). Where the internal police investigation concludes with a determination that the allegations are not sustained, fairness to the investigated officers and the avoidance of needless publicity to the cooperating witnesses, with possible inhibiting effects on future investigations, justify on public interest grounds, the custodian's denial of inspection to one other than a person in interest. Mayor and City Council of Baltimore, v. Maryland Comm. Against the Gun Ban, 329 Md. 78, 617 A.2d 1040 (1993).
Internal investigations were exempt from disclosure because otherwise, “employees are reluctant to give statements about the actions of other employees.” Kent County Deputy Sheriffs Association v. Kent County Sheriff, 463 Mich. 353 616 N.W.2d 677 (2000). Internal affairs investigatory records fall within the meaning of the term “personnel record of law enforcement” as used in the FOIA. Newark Morning Ledger Company v. Saginaw County Sheriff, 204 Mich. App. 215, 514 N.W. 2d 213 (1994). To show that disclosure of investigation record would interfere with the enforcement proceedings, “the government must show, by more than a conclusory statement, how the particular kinds of records would interfere with a pending enforcement investigation.” Evening News, supra 417 Mich. at 497. See Mich. Comp. Laws § 15.231.
Investigative records, active and closed, computation of criminal histories, confessions, confidential informants, and police techniques are all confidential criminal justice information subject to the balancing test. See also Montana Criminal Justice Information Act of 1979, Mont. Code Ann. §§ 44-5-101 to -515; Engrav v. Cragun, 769 P.2d 1224 (1989); 42 A.G. Op. 119 (1988).
Under Murray v. New Hampshire Div. of State Police, 154 N.H. 579 (2006), which reaffirmed Lodge v. Knowlton, 118 N.H. 574 (1978), the Court applies the six-prong test under the Freedom of Information Act for evaluating access to investigative files under 5 U.S.C. § 552(b)(7).
N.J.S.A. 47:1A-1.1 defines "Criminal Investigatory Record" as “a record which is not required by law to be made, maintained or kept on file that is held by a law enforcement agency which pertains to any criminal investigation or related civil enforcement proceeding.” N.J.S.A. 47:1A-1.1 also states that “Criminal Investigatory Records” are not “Government Records.”
North Jersey Media Group Inc. v. Township of Lyndhurst, et als., 229 N.J. 541 (2017)- Where police fatally shot a man after a car chase, a media organization was entitled to disclosure of unredacted use of force reports under the Open Public Records Act (OPRA) because under the use of force policy established by the Attorney General, which had the force of law for police officers, the officers were required to make and maintain use of force reports and, accordingly, OPRA's “criminal investigatory record” exception to disclosure did not apply. The Court, however, held that the dash-cam videos at issue did fall within the criminal investigatory records exemption. The basis for the Court’s decision was that it was unaware of any Attorney General directive relating to the use of dash-cams. Additionally, it found that the dash-cam videos pertained to an investigation into actual or potential violations of criminal law – thus satisfying the second requirement of the criminal investigatory records exemption. The Court noted that it was unaware of whether the officers in this case acted pursuant to any local directives and that the “intriguing issue” of whether a local directive carries the force and effect of law would be addressed in Paff v. Ocean Cty. Prosecutor’s Office, in which the Court has granted Certification.
Paff v. Ocean County Prosecutor's Office, 446 N.J. Super. 163 (App.Div. 2016) - Dash cam films made by motor vehicle recorders (MVRs) in police vehicles, which, in accordance with the police chief's written policy order, are generated automatically whenever the vehicle's overhead lights are activated, were held to be government records subject to disclosure under the Open Public Records Act, N.J.S.A. §§ 47:1A-1 to 47:1A-13. Note: Certification of Paff v. Ocean County Prosecutor's Office was granted by the NJ Supreme Court-awaiting decision.
N.J.S.A. 47:1A-3(a) provides:
- Notwithstanding the provisions of P.L.1963, c. 73 (C.47:1A-1 et seq.) as amended and supplemented, where it shall appear that the record or records which are sought to be inspected, copied, or examined shall pertain to an investigation in progress by any public agency, the right of access provided for in P.L.1963, c. 73 (C.47:1A-1 et seq.) as amended and supplemented may be denied if the inspection, copying or examination of such record or records shall be inimical to the public interest; provided, however, that this provision shall not be construed to allow any public agency to prohibit access to a record of that agency that was open for public inspection, examination, or copying before the investigation commenced. Whenever a public agency, during the course of an investigation, obtains from another public agency a government record that was open for public inspection, examination or copying before the investigation commenced, the investigating agency shall provide the other agency with sufficient access to the record to allow the other agency to comply with requests made pursuant to P.L.1963, c. 73 (C.47:1A-1 et seq.).
North Jersey Media Group Inc. v. Township of Lyndhurst, et als., 229 N.J. 541 (2017)- The Court held that investigative reports and witness statements, like the ones requested in this case, ordinarily contain factual details and narrative descriptions of the event. As a result, the danger to an ongoing investigation would typically weigh against disclosure of such records while the investigation is under way, particularly in its early stages. Thus, the Court found that while it may be appropriate to deny a request for investigative reports under Section 3(a) early in an investigation – as in this case – the outcome might be different later in the process.
N.J.S.A. 47:1A-3(b) provides:
- Notwithstanding the provisions of P.L.1963, c. 73 (C.47:1A-1 et seq.), as amended and supplemented, the following information concerning a criminal investigation shall be available to the public within 24 hours or as soon as practicable, of a request for such information:
where a crime has been reported but no arrest yet made, information as to the type of crime, time, location and type of weapon, if any;
if an arrest has been made, information as to the name, address and age of any victims unless there has not been sufficient opportunity for notification of next of kin of any victims of injury and/or death to any such victim or where the release of the names of any victim would be contrary to existing law or court rule. In deciding on the release of information as to the identity of a victim, the safety of the victim and the victim’s family, and the integrity of any ongoing investigation, shall be considered;
if an arrest has been made, information as to the defendant’s name, age, residence, occupation, marital status and similar background information and, the identity of the complaining party unless the release of such information is contrary to existing law or court rule;
information as to the text of any charges such as the complaint, accusation and indictment unless sealed by the court or unless the release of such information is contrary to existing law or court rule;
information as to the identity of the investigating and arresting personnel and agency and the length of the investigation;
information of the circumstances immediately surrounding the arrest, including but not limited to the time and place of the arrest, resistance, if any, pursuit, possession and nature and use of weapons and ammunition by the suspect and by the police; and
information as to circumstances surrounding bail, whether it was posted and the amount thereof.
Notwithstanding any other provision of this subsection, where it shall appear that the information requested or to be examined will jeopardize the safety of any person or jeopardize any investigation in progress or may be otherwise inappropriate to release, such information may be withheld. This exception shall be narrowly construed to prevent disclosure of information that would be harmful to a bona fide law enforcement purpose or the public safety. Whenever a law enforcement official determines that it is necessary to withhold information, the official shall issue a brief statement explaining the decision.
Although criminal investigatory records are exempt under OPRA, closed criminal investigatory records may be accessible under the common law right to know. There the court will engage in the common law balancing, weighing the interest in access against the interest in confidentiality. Because the investigation is closed the interest in confidentiality is diminished, increasing the chances that the court will find in favor of access. See, Shuttleworth v. City of Camden, 258 N.J. Super. 573 (App. Div. 1992).
North Jersey Media Group Inc. v. Township of Lyndhurst, et als., 229 N.J. 541 (2017)-in conducting the common law balancing of the competing interests in disclosure and confidentiality, the Court looked at the level of detail contained in the materials requested. It held that the interest in the integrity of investigations, asserted by the Attorney General in that case, is the strongest when it comes to the disclosure of investigative reports, witness statements and other comparably detailed documents. The Court found that in those areas, the State’s interest in confidentiality outweighs that of the requestor. The Court held that with respect to the dash-cam videos, which do not contain narrative summaries, the interest in disclosure outweighs the generic safety concerns raised by the State. Thus, notwithstanding the fact that the Court determined that the dash-cam videos fall within OPRA’s criminal investigatory records exemption, the Court held that disclosure of the dash-cam videos was nonetheless required under the common law.
The availability of investigatory records for public disclosure may depend on the phase of the investigation. New Mexico Attorney General’s Office, Inspection of Public Records Act Compliance Guide, 16, (8th ed. 2015). For instance, a person’s name will no longer be confidential once the investigation is closed and the person is charged with a crime. Id. “However, if the target of an investigation . . . is not charged, that person’s identity can remain confidential even after the investigation is closed.” Id. Generally, information obtained during active investigations is not publicly available if any information would “reveal confidential sources, information or individuals accused but not charged with a crime.” See NMSA 1978 § 14-2-1(A)(4). Because an investigation is closed does not necessarily mean that information from the investigation is available for inspection. If the material reveals “confidential sources, information or individuals accused but not charged with a crime,” it will remain confidential despite the investigation being closed. Id.
Most records generated by investigators while investigating a law-enforcement matter—whether enforcing a law with criminal penalties, or civil or administrative sanctions—are not public records until the trial for which they were gathered is over. See much more detail in discussion above for the exemption for "confidential law enforcement investigatory records."
The Attorney General, district attorneys and municipal attorneys may keep their litigation files and investigatory reports confidential. 51 O.S. § 24A.12. However, access to a document that would be available for inspection and copying under the Act cannot be denied because the public agency has placed it in an investigation file. 51 O.S. § 24A.20. Although not specifically addressed in the Act, all investigation files of the Oklahoma State Bureau of Investigation are closed to the public. 74 O.S. § 150.5(D)(1).
ORS 192.345(3) (formerly 192.501(3)) provides a conditional exemption for investigatory information compiled in criminal investigations while allowing only limited circumstances in which a record or arrest or the report of a crime may remain confidential. This exemption does not expire when the investigation is closed, though the closed status of the governmental investigation decreases the government’s interest in maintaining confidentiality. See Attorney General Manual, § I(E)(4)(d)(3).
ORS 192.355(1) (formerly 192.502(1)) exempts advisory communications where public interest in encouraging frank communication between officials and employees clearly outweighs the public interest in disclosure. In City of Portland v. Oregonian Publishing Co., 200 Or. App. 120, 112 P.3d 457 (2005), the court held that Portland Police Bureau records concerning the investigation and discipline of a police officer who killed a civilian during a traffic stop were not exempt from disclosure under this balancing analysis.
Records for criminal law enforcement including “all records relating to the investigation of crime, including those maintained on any individual or compiled in the course of a criminal investigation by any law enforcement agency” are generally excluded from disclosure by Exemption (D) to the extent that disclosure could interfere with criminal investigation or enforcement proceedings, would deprive a person of a fair trial or impartial proceedings, could reasonably be expected to disclose a confidential source, would disclose investigation or prosecution techniques or procedures, or could endanger the life or safety of an individual. R.I. Gen. Laws § 38-2-2(4)(D). The disclosure of these types of records is determined on a case by case basis using the factors set forth in the statute.
Some records may be exempted from disclosure including records compiled for law enforcement purposes where the disclosure would interfere with a prospective law enforcement proceeding; would deprive a person of a right to a fair trial or an impartial adjudication; would constitute an unreasonable invasion of personal privacy; would disclose the identity of a confidential source; would disclose current techniques and procedures for law enforcement investigations or prosecutions; would endanger the life or physical safety of any individual; or would disclose any contents of intercepted wire, oral, or electronic communications not otherwise disclosed during a trial. S.C. Code Ann. § 30-4-40(a)(3).
Investigatory records are presumptively closed. SDCL §§1-27-1.5 (5) and 23-5, generally. In active investigations they are closed. SDCL §§1-27-1.5 (5) and 23-5-10. The basic open records law does not specifically distinguish between active and closed investigations. SDCL §1-27-1.5 (5). However, the more specific law making “criminal investigative information” confidential might be interpreted to make that distinction. SDCL §§23-5-10 and 23-5-11.
Records related to active investigations are closed. Tenn. R. Crim. P. 16(a)(2). This closure applies to not only records created by law enforcement, but also records of third parties gathered by law enforcement. The Tennessean v. Metro Govt’t of Nashville, 485 S.W. 3d 857 (Tenn. 2016).
Records related to closed investigations are open. Memphis Publishing Co. v. Holt, 710 S.W.2d 513 (Tenn. 1986). However, Attorney General investigations are closed T.C.A. § 8-6-407. And so are TBI records. T.C.A. § 10-7-504(a)(1). And so are investigation of the department of corrections, internal affairs division. T.C.A. § 10-7-504(a)(8).
The Act specifically exempts records dealing with law enforcement agency investigations. Tex. Gov’t Code § 552.108. This exception generally covers offense reports and personal history and arrest records maintained for internal use. See Houston Chronicle Publ’g. Co., 531 S.W.2d at 185. The first page of most common offense reports, however, is public when it includes information about the offense committed, crime location, identification and description of complainant, time of occurrence, property, premises and vehicles involved, description of the weather, a detailed description of the offense, and the names of the investigating officers. Id. at 186-87. Although prior opinions of the Attorney General supported the proposition that material is far less likely to be exempt under Section 552.108 when an investigative file is closed, see, e.g., Tex. Att’y Gen. ORD-378 (1983), the Texas Supreme Court concluded that the “statute’s plain language does not discriminate between ‘open’ and ‘closed’ files,” holding that Section 552.108’s “blanket exemption” does not require district attorneys to disclose internal records, whether open or closed, that deal with detection, investigation, or prosecution of crime. Holmes v. Morales, 924 S.W.2d 920, 925 (Tex. 1996).
Section 552.108(a)(1) of the Act exempts information and internal records held by a law enforcement agency relating to an active investigation. Specifically, information that would interfere with the detection, investigation, or prosecution of a crime. See id.; see also Tex. Att’y Gen. Op. OR2005-10719 (2005); see also Tex. Atty. Gen. Op. OR2011-11538 (2011) (911 calls made on specified dates pertaining to a specified address may be withheld because although case is inactive, Houston Police Department indicated case may be reactivated once additional leads are developed). However, basic information about an arrested person, an arrest, or a crime is not exempt. Tex. Att’y Gen. OR2005-10660 (2005).
Section 552.108(a)(2) of the Act excepts from disclosure information concerning an investigation that concluded in a result other than conviction or deferred adjudication. See, e.g., Tex. Att’y Gen. Ops. OR2005-10866 (2005), OR2005-10876 (2005). However, as with information relating to an active investigation, basic front page offenses and arrest information, as described in Houston Chronicle Publishing Company are not excepted. Id.
Access to investigatory records may be restricted if release of such records (1) reasonably could be expected to interfere with the investigation; (2) reasonably could be expected to interfere with audits, disciplinary, or enforcement proceedings; (3) would create a danger of depriving a person of a right to a fair trial or impartial hearing; (4) reasonably could be expected to disclose a confidential source’s identity; or (5) reasonably could be expected to disclose confidential investigative or audit techniques. Utah Code § 63G-2-305(10). In The Salt Lake Tribune & Matthew D. LaPlante v. Salt Lake City Police Dep’t, No. 04-16 (Utah State Rec. Comm. Nov. 23, 2004), the State Records Committee held that the initial reports from a missing person case involving Lori Kay Hacking were protected because information in the documents identified individuals not generally known to the public who could reasonably aid in the investigation. The Records Committee also determined that disclosure of the information sought could interfere with the investigation or influence a potential trier of fact, thus creating a danger of depriving the defendant of his right to a fair and impartial hearing. Id.
Investigatory records concerning police officers are presumptively public under Section 63G-2-201(2). See Lawrence v. Utah Dept. of Pub. Safety, Case No. 120907748 (Utah 3d Dist. Ct. Aug. 21, 2013) (noting that the list of public records in Section 63-2-301 is not exhaustive). Where disclosure of such records will not constitute an unwarranted invasion of the officer’s privacy, and a compelling public interest in the record substantially exceeds any governmental interest in restricting release, the investigatory records will be subject to disclosure. See e.g., Lawrence v. Utah Dept. of Pub. Safety, Case No. 120907748 (Utah 3d Dist. Ct. Aug. 21, 2013) (holding that disclosure of Internal Affairs investigative records concerning investigation of requester’s complaints against Utah Highway Patrol Trooper did not constitute an unwarranted invasion of privacy and that, even if it did, the public interest is best served by releasing the records); Carlisle v. Utah Cnty. Sheriff’s Office, State Records Comm. Case No. 16-49 (Dec. 19, 2016) (finding “that the public interest in having access to investigative records of police officers alleging violations of the public trust, outweighs the interest favoring restriction of these records, even though the police officer has not received formal charges or disciplinary action or the charges have not been sustained”).
Records dealing with the detection and investigation of crime are exempt from disclosure, but only to the extent that the production of such records:
“(i) could reasonably be expected to interfere with enforcement proceedings;
(ii) would deprive a person of a right to a fair trial or an impartial adjudication;
(iii) could reasonably be expected to constitute an unwarranted invasion of personal privacy;
(iv) could reasonably be expected to disclose the identity of a confidential source, including a state, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source;
(v) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecution if such disclosure could reasonably be expected to risk circumvention of the law;
(vi) could reasonably be expected to endanger the life or physical safety of any individual.”
1 V.S.A. § 317(c)(5).
“Criminal investigative files,” including any documents and information including complaints, court orders, memoranda, notes, diagrams, maps, photographs, correspondence, reports, witness statements, and evidence relating to a criminal investigation or prosecution, other than criminal incident information subject to mandatory release under the Act, are excluded and subject to discretionary release under the Act. Va. Code. Ann. § 2.2-3706.B.1. The Act makes no distinction between active and closed investigations. See Fitzgerald v. Loudoun Cty. Sheriff's Office, 289 Va. 499, 506–07, 771 S.E.2d 858, 861 (2015).
Specific investigative records are exempt if nondisclosure is essential to law enforcement or to protect a person’s right to privacy. RCW 42.56.240(1). The exemption covers only ongoing investigations, Ashley v. Public Disclosure Comm’n, 16 Wn. App. 830, 560 P.2d 1156, review denied, 89 Wn.2d 1010 (1977), and once the investigation is complete, the records are open. Hearst, 90 Wn.2d 123. Reports generated as part of routine administrative procedure, not as the result of a specific complaint or allegation of misconduct, are not “investigative reports.” Cowles Publishing Co. v. City of Spokane, 69 Wn. App. 678, 683, 849 P.2d 1271 (police reports regarding contact by any K-9 dog with citizen, generated as matter of course, are not investigative records), review denied, 122 Wn.2d 1013, 863 P.2d 73 (1993). Reports which could trigger an investigation and imposition of sanctions if warranted, but which are not themselves used for “law enforcement,” are not exempt. Id. at 684.
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 Pub’g Co. v. Spokane Police Dep’t, 139 Wn.2d 472, 987 P.2d 620 (1999). The state supreme court at one point created a categorical exemption for “open and active” police investigation files in which disclosure would jeopardize the ability to solve the case. Newman v. King County, 133 Wn.2d 565, 947 P.2d 712 (1997). The court later clarified that such a categorical exemption only exists for “information contained in an open, active police investigation file.” Limstrom v. Ladenburg, 136 Wn.2d 595, 963 P.2d 869 (1998) (refusing to extend a categorical exemption to work product materials under 42.56.290. In Cowles and again in Serko, the court further clarified that the concept of categorical exemption did not apply once the case was referred to the prosecutor’s office, even if the files remained technically open. See also Sargent v. Seattle Police Dept., 179 Wn.2d 376, 314 P.3d 1093 (2013).
The “right to privacy” refers to matters that would be highly offensive to a reasonable person if disclosed and are not of public concern. RCW 42.56.050, eff. 7/1/06); Hearst, 90 Wn.2d 123. In a torturous opinion, a Washington court has held that whether statements in public records are “true” bears on whether the records are of legitimate concern to the public. City of Tacoma v. Tacoma News Inc., 65 Wn. App. 140, 827 P.2d 1094, review denied, 119 Wn.2d 1020, 838 P.2d 692 (1992) (police records of investigation based on unsubstantiated allegation of child abuse against political candidate not of legitimate public concern). But see Hudgens v. City of Renton, 49 Wn. App. 842, 746 P.2d 320 (1987) (arrest report, citation, and patrol report must be disclosed despite acquittal), review denied, 110 Wn.2d 1014 (1988). In Bellevue John Does 1-11 v. Bellevue School Dist. #405, 164 Wn.2d 199, 189 P.3d 139 (2008), the Washington Supreme Court held that the identities of teachers accused of sexual misconduct are not subject to disclosure in cases where the allegations were not substantiated.
Police body worn camera recordings are subject to disclosure except to the extent necessary to protect a person’s “right to privacy,” under a modified version of the privacy test discussed above. Certain types of recordings are presumed to be “highly offensive,” including depictions showing the inside of medical facilities and residences, intimate images, minors and the body of a deceased person. RCW 42.56.240(14). Public records requests for bodycam footage must also specify a particular individual involved in an incident, a specific officer, or the incident’s time and location. Id.
Criminal records on charges that have not resulted in conviction or other adverse disposition and for which formal proceedings are over are closed to the public. RCW 10.97.050, .030(2). Internal police investigations are considered exempt, even though no criminal charges are involved and no right to privacy is violated. The Washington Supreme Court has said that public disclosure of such investigations would render law enforcement ineffective. Cowles Publishing Co. v. State Patrol, 109 Wn.2d 712, 748 P.2d 597. Nevertheless, an investigative report concerning liquor law violations at a Police Guild party is not exempt on grounds that public disclosure would render law enforcement ineffective or violate the officers’ privacy. Spokane Police Guild v. Liquor Control Bd., 112 Wn.2d 30, 769 P.2d 283. In addition, internal investigation records are not exempt if requested as part of the discovery process, because a trial court can craft a protective order to alleviate law enforcement concerns. State v. Jones, 96 Wn. App. 369, 979 P.2d 898 (1999).
Once the special investigation is complete, the records are open. Hearst Corp. v. Hoppe, 90 Wn.2d 123, 580 P.2d 246 (1978).
The assertion that a criminal matter “remains, an open and ongoing investigation” is not a sufficiently specific justification for refusing public access to a police incident report. Portage Daily Register v. Columbia Cty. Sheriff’s Dep’t, 2008 WI App 30, ¶ 13, 308 Wis. 2d 357, 746 N.W.2d 525. Non-disclosure may be justified under the balancing test, on a case-by-case basis, if the custodian can show “that disclosure would interfere with an ongoing investigation.” Id., ¶ 20.
Investigatory records generally are subject to the common law balancing test. Appleton Post-Crescent v. Janssen, 149 Wis. 2d 294, 441 N.W.2d 255 (Ct. App. 1989); Journal/Sentinel Inc. v. Aagerup, 145 Wis. 2d 818, 429 N.W.2d 772 (Ct. App. 1988). Basic factual information contained in police reports of firearms discharges by police officers are subject to inspection under this balancing, but police supervisors evaluative comments about the discharges are not. State ex rel. Journal/Sentinel Inc. v. Arreola, 207 Wis. 2d 496, 513–19, 558 N.W.2d 670 (Ct. App. 1996). Investigatory records in the hands of the district attorney are absolutely immune from public inspection. State ex rel. Richard v. Foust, 165 Wis. 2d 429, 477 N.W.2d 608 (1991). Juvenile investigatory records are not open to inspection except for newsgatherers who wish to obtain news without revealing the identity of the child. Wis. Stat. § 48.396(1).
When an investigation is closed and no prosecution or disciplinary action is either ongoing or contemplated, there is no risk that releasing a police report will interfere with an enforcement proceeding or jeopardize anyone's right to a fair trial. Linzmeyer v. Forcey, 2002 WI 84 ¶ 39, 254 Wis. 2d 306, 331, 646 N.W.2d 811, 821. A law enforcement agency's internal investigation is deemed closed when the agency has taken disciplinary action; it does not remain open because of the possibility of review in arbitration. Local 2489, AFSCME v. Rock Cty., 2004 WI App 210 ¶20, 277 Wis. 2d 208, 225, 689 N.W.2d 644, 653 (fact that sheriff must defend disciplinary action in arbitration does not mean that records of prior, completed investigation become immune from disclosure pending outcome of arbitration).