O. Police records
Statutes requiring or authorizing the withholding of police records include the Public Records Act, the Criminal Justice Information Systems Privacy and Security Act (AS 12.62), and AS 28.15.151, dealing with drivers' records and traffic reports. See also, the provisions of Title 47 dealing with records pertaining to juveniles.
[These laws, and cases addressing these issues, are dealt with in the excellent and comprehensive survey of the law governing access to police records contained in the Nov. 25, 1994, Op. Att'y Gen. No. 663-93-0039 (referred to hereafter as "1994 Police Records AG Opinion."). While most of this remains applicable, some, particularly cites referring to reconfigured statutes dealing with children-in-need-of-aid and juvenile delinquency, have changed and the statutes themselves should always be consulted.]
Police records are specifically addressed in the Public Records Act, as a result of a 1990 amendment that added AS 40.25.120(6). This exception to the general public right to inspect public records provides that an agency may withhold:
Records or information compiled for law enforcement purposes, but only to the extent that the production of the law enforcement records or information
(A) could reasonably be expected to interfere with enforcement proceedings,
(B) would deprive a person of a right to a fair trial or an impartial adjudication,
(C) could reasonably be expected to constitute an unwarranted invasion of the personal privacy of a suspect, defendant, victim or witness,
(D) could reasonably be expected to disclose the identity of a confidential source,
(E) would disclose confidential techniques and procedures for law enforcement investigations or prosecutions,
(F) would disclose guidelines for law enforcement investigation or prosecution if the disclosure could reasonably be expected to risk circumvention of the law.
The addition of subsection .120(6) (which mirrors the federal FOIA provisions for law enforcement records, and was substantially copied by subsequent amendment of the Anchorage Municipal Code) simply codified what was generally understood to be the prevailing common law, and was consistent with an earlier superior court case granting access to a police tape recording. Anchorage Daily News v. Municipality of Anchorage, 11 Media L. Rptr. 2173 (Alaska Super. Ct., 3rd Jud. Dist., April 26, 1985). There, the court ordered release of tape-recorded conversations between a police officer and a municipal assembly member stopped for a traffic violation. The court stated that in order to construe the municipal ordinance exempting police records as being consistent with state law, police records must be disclosed, at least when a case is closed and in the absence of other circumstances that compel continued withholding, such as endangerment of witnesses and disclosure of confidential informants or investigative techniques. Although an exception might justify withholding law enforcement records from someone making a request pursuant to the Public Records Act, the needs of a litigant might outweigh law enforcement’s interest in not disclosing it. Rowan v. State, DHSS, 320 P.3d at 1157.
In Ramsey v. City of Sand Point, 936 P.2d 126, 135 (Alaska 1997), a city police chief claimed that he was entitled to obtain, either through discovery or through the Public Records Act, all documents concerning the arrest or other police contact of the council members, the mayor, and the people who signed the petition to oust him as police chief. With respect to the Public Records Act aspect of the claim, the Court said the City was justified in withholding the documents pursuant to AS 09.25.120(a) [since renumbered as AS 40.25.120(a)], which allows anyone to inspect public records except "(6) records or information compiled for law enforcement purposes, but only to the extent that the production of the law enforcement records or information . . . (C) could reasonably be expected to constitute an unwarranted invasion of the personal privacy of a suspect, defendant, victim or witness . . . ." The Court said citizens of the community had a reasonable expectation that their contacts with the police department will not be publicly disclosed simply because they signed a petition. Id.
Records that are otherwise public remain subject to disclosure when they are used for, included in, or relevant to law enforcement proceedings and other litigation. AS 40.25.122. This clarification was added in 1990 to avoid repetitions of problems such as occurred when the Department of Law took custody of public records of the Department of Administration during an investigation of Sheffield administration procurement practices, and withheld them because they were allegedly part of a law enforcement investigation.
The Alaska Criminal Rules of Court were revised in 1989 to exempt search warrants and related affidavits, receipts and inventories from disclosure until after an indictment is returned, Ak.R.Cr.P. 37(e)(1). except upon a showing of good cause, and to make these documents presumptively public after charges are filed. Ak.R.Cr.P. 37(e)(2). Specifically, Rule 37(e)(2) states that: “After the warrant is identified in a charging document or in a notice filed by the prosecutor, the record of proceedings and all related documents shall be open to public inspection unless the court, for good cause shown, orders that the documents remain sealed for a further period. The initial charging document in all prosecutions must be accompanied by a listing of the number of all warrants issued in relation to the case unless the court waives this requirement for good cause shown. The prosecutor shall file notice of subsequent warrants issued in relation to the case once executed.” The Rule also provides that “If four years have elapsed since the issuance of the warrant and no charges related to the warrant have been filed, the record of proceedings and all related documents shall be unsealed and shall thereafter be deemed “confidential” as defined in the Administrative Rules and Bulletins. For good cause shown, the court may delay the unsealing.” Ak.R.Cr.P. 37(e)(3).
One very important caveat qualifies everything stated in this section about access to police records, and potentially limits access to the individual items discussed below that is the effect of the Criminal Justice Information System Privacy and Security Act. See AS 12.62. This statute, and regulations adopted pursuant to it, see 13 AAC 68.005 - .905, significantly limit access to criminal justice information maintained on government computers, but not otherwise.
The FOIA exempts “[u]ndisclosed investigations by law enforcement agencies of suspected criminal activity.” Ark. Code Ann. § 25-19-105(b)(6). 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). A record must be investigative in nature to fall within the exemption, Hengel v. City of Pine Bluff, 307 Ark. 457, 821 S.W.2d 761 (1991), and only records of “ongoing criminal investigations” are exempt. Martin v. Musteen, 303 Ark. 656, 799 S.W.2d 540 (1990); McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989). For discussion, see Part II.A.2.f of this outline. An exemption added to the FOIA in 1993 protects the “identities of law enforcement officers currently working undercover with their agency and identified in the Arkansas Minimum Standards Office as undercover officers.” Ark. Code Ann. § 25-19-105(b)(10)(A).
Additionally, personnel records that would otherwise be disclosable are exempt if they are being used in connection with an ongoing criminal investigation. Ark. Op. Att’y Gen. Nos. 97-079, 95-351, 93-300, 93-055. The same is true with respect to attorney work product of the prosecutor. Ark. Op. Att’y Gen. No. 99-110.
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 Colorado Criminal Justice Records Act, or (2) non-disclosure is required by other law. In re People v. Thompson, 181 P.3d 1143, 1143-44 (2008); see Colo. Rev. Stat. § 24-72-301(2).
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." Custodian must articulate and balance the following factors: (1) the public interest in the investigation; (2) the private interest or danger of adverse consequences to the public involved; and (3) whether disclosure of a redacted file would satisfy the statutory objectives of disclosure and address any privacy concerns. Freedom Colo. Info., Inc. v. El Paso County Sheriff's Dep't, 196 P.3d 892, 903 (Colo. 2008).
The exemptions related to criminal records and files are poorly worded and contradictory. Police agencies are willing to release general statistical information but are reluctant to release individual files, often relying on the investigatory records exception. See 29 Del. C. § 10002(g)(3).
The Attorney General has held that an agreement between the FBI and state police to keep cell site simulator information secret is a public record and must be disclosed. See Del. Op. Att’y Gen., No. 15-ib14 (Dec. 29, 2015).
District of Columbia
The privacy exemption, D.C. Code Ann. § 2-534(a)(2), investigatory records exemption, id. at § 2-534(a)(3), and arson reporting exemption, id. at § 2-534(a)(9), may apply. Complaints and other specified police records shall be open for public inspection under D.C. Code Ann. § 5-113.06.
The Mayor's office has ruled that when a defendant has pleaded guilty to a charge and a videotaped confession was never used against him in court, the privacy rights of the police officers involved (absent allegations of police misconduct) and the victim's family bring the videotape under the privacy exemption of the D.C. Act. The defendant was found to have forfeited his privacy rights, and parts of the tape could be made public that merely identified him as the perpetrator. The Mayor's office did, however, recognize that the police officers' privacy interests must be weighed on a case-by-case basis against the public interest served by releasing their identities and information about their practices and tactics. In re Appeal of Molly Pauker, Esq., (unnumbered FOIA App.) (Office of the Mayor, Nov. 3, 1989).
No sex offender registration information is available as a public record except those records made public by regulations promulgated by the Mayor. D.C. Code Ann. § 22-4017.
Police records are generally subject to the Act’s disclosure requirements. The Georgia First Amendment Foundation publishes in collaboration with the Georgia Association of Chiefs of Police, the Georgia Bureau of Investigation, the Georgia Department of Law, the Georgia Press Association, the Georgia Public Safety Training Center, the Georgia Sheriff’s Association and the Prosecuting Attorneys’ Council of Georgia a law enforcement officer’s guide to open records in Georgia, accessible online at http://www.gfaf.org/the-blue-book/.
The government may justify a denial of a request for police records by invoking particularly one of two UIPA exemptions. It may cite Section 92F-13(2), which excepts "[g]overnment records pertaining to the prosecution or defense of any judicial or quasi-judicial action to which the State or any county is or may be a party, to the extent that such records would not be discoverable." Haw. Rev. Stat. § 92F-13(2) (emphasis added). In other instances it may cite Section 92F-13(3), which excepts "[g]overnment records that, by their nature, must be confidential in order for the government to avoid the frustration of a legitimate government function." Haw. Rev. Stat. § 92F-13(3).
Police records are subject to disclosure pursuant to Idaho Code § 74-124, which generally exempts active and inactive investigatory records to the extent that disclosure would interfere with enforcement proceedings, deprive a person of a right to a fair trial, constitute an unwarranted invasion of privacy, disclose the identity of a confidential source, disclose investigative techniques and procedures, or endanger the life or safety of law enforcement personnel. This exemption was originally grandfathered into the Idaho Public Records Act, but was included in the 2015 passage of the Transparent and Ethical Government Act. This section has generated substantial disagreement between law enforcement authorities and members of the media.
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).
In 2016, the General Assembly added statutory provisions governing “dash camera” and “body camera)) recordings, defined as “an audio, visual, or audiovisual recording of a law enforcement activity captured by a camera or other device that is: (1) provided to or used by a law enforcement officer in the scope of the officer’s duties; and (2) designed to be worn by a law enforcement officer or attached to the vehicle or transportation of a law enforcement officer.” Ind. Code § 5-14-3-2(k). Indiana Code 5-14-3-5.2(a) provides that a public agency may allow anyone to inspect and copy law enforcement recordings, unless one of the delineated exceptions applies. Additionally, the General Assembly enacted provisions requiring public agencies to retain unaltered or unobscured law enforcement recordings. See Ind. Code § 5-14-3-5.3.
Iowa Code § 22.7(5) prevents from required disclosure “[p]eace officers’ investigative reports, privileged records or information specified in section 80G.2, and specific portions of electronic mail and telephone billing records of law enforcement agencies if that information is part of an ongoing investigation . . . .” (2018). Iowa Code § 80G.2 prevents a law enforcement officer from being required to give evidence in any criminal proceeding that requires the disclosure of information relating to identification documents necessary for the investigation or personal identifying information about the law enforcement officer or their family. (2018).
The section does require disclosure of “date, time, specific location, and immediate facts and circumstances surrounding a crime or incident . . . .” Iowa Code § 22.7(5). It excludes from required disclosure any facts or circumstances that would “plainly and seriously jeopardize an investigation or pose a clear and present danger to the safety of an individual.” Id. These are classified as “unusual circumstances” and are protected from disclosure. Id.
In State v. White, the Iowa Supreme Court held that a defendant is entitled to examine tape recordings of officers’ radio calls and conversations to determine whether they contained information material to his defense. 151 N.W.2d 552 (Iowa 1967). Under this, the defendant and counsel are not entitled to hear everything that might be recorded. Id. at 556. Rather, the court should determine, in the presence of the county attorney and counsel for defendant, whether the recording contains anything germane to the issue at hand. Id.
Police records relating to ongoing or prospective investigations may be exempt from disclosure. Once the investigation is completed, the records are open to inspection. See Ky. Rev. Stat. 61.878(1)(h), which states:
Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of [Ky. Rev. Stat.] 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action; however, records or information compiled and maintained by county attorneys or Commonwealth's attorneys pertaining to criminal investigations or criminal litigation shall be exempted from the provisions of [Ky. Rev. Stat.] 61.870 to 61.884 and shall remain exempted after enforcement action, including litigation, is completed or a decision is made to take no action. The exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by [Ky. Rev. Stat.] 61.870 to 61.884…
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).
Police records identifying juvenile suspects or defendants are exempt from disclosure. See 93-ORD-42 (discussing exemption mandated by Ky. Rev. Stat. 610.320(3)).
Police records including accident reports, police blotters, 911 tapes, and initial arrest records are all public criminal justice information. See Barr v. Great Falls Intern. Airport Authority, 326 Mont. 93, 107 P.3d 471 (2005) (holding arrest record from Alaska contained in national computer database was public criminal justice information). For arrest records, also see Barr v. Great Falls Intern. Airport Authority, 326 Mont. 93, 107 P.3d 471 (2005) (holding arrest record from Alaska contained in national computer database was public criminal justice information).
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).
Law enforcement records are public unless the requested records reveal confidential sources, information or individuals accused but not charged with a crime. NMSA 1978 § 14-2-1(A)(4). “Law enforcement records include evidence in any form received or compiled in connection with a criminal investigation or prosecution by a law enforcement or prosecuting agency, including inactive matters or closed investigations.” Id. However, information about an accused party not charged with a crime is open to public inspection if it is contained in any record set forth in NMSA 1978 § 29-10-7.
Section 132-1.4 of the General Statutes governs criminal investigations and intelligence information records, which generally are not public records. Certain information, however, is public:
The time, date, location, and nature of a violation or apparent violation of the law reported to a public law enforcement agency.
The name, sex, age, address, employment, and alleged violation of law of a person arrested, charged, or indicted.
The circumstances surrounding an arrest, including the time and place of the arrest, whether the arrest involved resistance, possession or use of weapons, or pursuit and a description of any items seized in connection with the arrest.
The contents of “911” and other emergency telephone calls received by or on behalf of public law enforcement agencies, except for such contents that reveal the name, address, telephone number, or other information that may identify the caller, victim, or witness.
The contents of communications between or among employees of public law enforcement agencies that are broadcast over the public airways.
The name, sex, age, and address of a complaining witness.
G.S. § 132-1.4(c).
Please see the discussion of rules for active investigations, outlined in Section IV(B)(1) above.
Additionally, as a summary, active criminal intelligence information and active criminal investigative information is confidential. N.D.C.C. § 44-04-18.7. Law enforcement records and files concerning children, except where the child is prosecuted as an adult, where the interests of national security require disclosure, or where the court otherwise orders disclosure in the interest of the child, are also confidential. N.D.C.C. § 27-20-52. Fingerprint files of children are confidential. N.D.C.C. § 27-20-53. Finally, the address, telephone number, or any identifying information that, if released, could reasonably be used to locate a victim or alleged victim of domestic violence contained in any record maintained by a law enforcement facility is exempt and may be redacted from the record before release. N.D.C.C. § 44-04-18.20.
The following records and information are generally open:
- Arrestee description, including name, date of birth, address, race, sex, physical description, and occupation of arrestee.
- Facts concerning the arrest, including the cause of arrest and the name of the arresting officer.
- Conviction information, including the name of any person convicted of a criminal offense.
- Disposition of all warrants, including orders signed by a judge of any court commanding a law enforcement officer to arrest a particular person.
- A chronological list of incidents, including initial offense report information showing the offense, date, time, general location, officer, and a brief summary of what occurred.
- A crime summary, including a departmental summary of crimes reported and public calls for service by classification, nature, and number.
- Radio log, including a chronological listing of the calls dispatched.
- General registers, including jail booking information.
- Arrestee photograph, if release will not adversely affect a criminal investigation.
N.D.C.C. § 44-04-18.7(2).
Records for criminal law enforcement 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. Records relating to management and direction of a law enforcement agency and records or reports reflecting the initial arrest of an adult and the charges or charges brought against any adult shall be public. R.I. Gen. Laws § 38-2-2(4)(D).
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).
The scope of the FOIA exemption for records of law enforcement agencies is discussed in the preceding section. In general, the exemption applies only to (1) "information compiled as part of an inquiry into specific suspected violations of the law" and (2) internal records which reveal "confidential investigative techniques and procedures." Syl. pts. 11, 12, Hechler v. Casey, 175 W. Va. 434, 333 S.E.2d 799, 802 (1985). Items such as mug shots, police blotters and 911 tapes normally would not meet these prerequisites for confidentiality, and thus should be subject to disclosure.
Records which are "generated pursuant to 'routine administration, surveillance or oversight'" are not exempt, and "[t]he fact that information . . . may form a basis for further investigation . . . or may alert the administrator to a possible violation of law . . . does not make that [information] an investigatory record created pursuant to an investigation." Hechler v. Casey, 333 S.E.2d at 813 (citation omitted) (emphasis in original). Similarly, although the protection of confidential police techniques and procedures was identified in Hechler as one of the primary reasons for the law enforcement exemption, this protection does not extend to "ordinary manuals or procedures unless they include confidential details of law enforcement programs." Id.
Again, various statutes contain more specific provisions governing access to certain types of law enforcement records. Accident reports that are filed by law enforcement officers with the state Department of Motor Vehicles are available for public inspection at DMV (W. Va. Code § 17A-2-14; 51 Op. Att'y Gen. 556 (1965)), and also should be available under the FOIA from the officers directly.
Active investigatory records are exempt from disclosure, W. Va. Code § 29B-1-4(4). However, since the primary purpose of the exemption is "'to prevent premature disclosure of investigatory materials which might be used in a law enforcement action,'" Hechler v. Casey, 175 W. Va. 434, 333 S.E.2d 799, 812 (1985)(citation omitted)(emphasis added), the exemption should no longer apply once the "detection and investigation" has concluded. See Sattler v. Holliday, 173 W. Va. 471, 318 S.E.2d 50, 52 (1984) ("We have no evidence of what interests are intended to be protected by nondisclosure in this particular case, especially after the investigation has ceased and no charges have been filed. We have been admonished to make decisions in favor of disclosure."); Op. Att'y Gen., April 18, 1986, at 112 (information revealed in Legal Services Corporation audit is exempt from disclosure while in custody of prosecutors investigating possible criminal violations but reverts to public status once investigation is concluded).
Arrest records and compilations of criminal histories maintained by the Criminal Investigation Bureau of the state police are exempt from disclosure under the provisions of West Virginia Code section 15-2-24. That statute denies public access to "fingerprints, photographs, records or other information" maintained by the CIB.
There is no specific provision in the FOIA regarding access to such information as confessions, or the identities of victims and informants. The general test is whether the information was "compiled as part of an inquiry into specific suspected violations of the law" or reveals "confidential investigative techniques and procedures" — will determine whether such records are open to public inspection. This test does not apply to information concerning alleged crimes reported to security or other officials at colleges and universities.
West Virginia Code section 15-12 entitled the Sex Offender Registration Act authorizes the electronic release of information regarding certain sex offenders required to register under West Virginia Law. A database registry of sex offenders is available via the West Virginia State Police website: https://apps.wv.gov/StatePolice/SexOffender/Disclaimer?continueToUrl=http%3A%2F%2Fapps.wv.gov%2FStatePolice%2FSexOffender%2F.
Emergency medical services records of state or local government funded emergency services providers should be available to FOIA requesters. A public body holding such records may assert claims of exemption pursuant to FOIA exemption 2. That exemption relates to “information of a personal nature such as that kept in a personal, medical or similar file.” W. Va. Code § 29B-1-4(a)(2). To the extent that such records reflect medical treatment or the medical condition of a person who has received emergency medical services, it is likely that courts would hold such information exempt under exemption 2. However, the fact of provision of emergency services to an individual as well as the time and circumstances arguably should be disclosed if requested under the FOIA.
The West Virginia State Police Laboratory receives and maintains DNA a database of records and samples in the course of the police work done by the State Police. These records and materials are exempt from disclosure under the FOIA pursuant to W. Va. Code §15-2B-12 (d).
Inmates of West Virginia correctional institutions are subject to monitoring and recording of all telephone calls they make to persons outside the facility where they are imprisoned. Inmate's telephone conversations are exempt from disclosure as law enforcement records under exemption 4 of FOIA, W. Va. Code § 25-1-17. See W. Va. Code § 29B-1-4 (a)(4)(A).
The West Virginia Legislature established a West Virginia controlled substances monitoring act for the purpose of requiring the recordation and retention in a single repository of information regarding the prescribing, dispensing and consumption of certain controlled substances. W. Va. Code § 60A-9-2. The information required by this article to be kept by the West Virginia Board of Pharmacy is declared confidential and not subject to disclosure under the FOIA. § 60A-9-5(a)(1).