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Sheriff’s videotape of booking is public record

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  1. Freedom of Information

    NMU         MISSOURI         Freedom of Information         Dec 8, 1999    

Sheriff’s videotape of booking is public record

  • Sheriff’s office footage of a state representative being booked on a drunken driving charge is public record and subject to disclosure, regardless of the fact that such videotape is usually recycled.

A sheriff’s office videotape that showed a state representative being booked for driving while intoxicated is a public record, the state Supreme Court in Jefferson City ruled Dec. 7.

The videotape meets the definition of a public record, the court said, even though the sheriff’s office usually recycles such tapes within a week after they have been recorded.

The case involved a request made on April 28, 1997, by KRCG-TV for access to the booking videotape, which was made two days earlier. The Cole County sheriff’s office refused, filing suit in state court to establish that the videotape was not a public record.

Under the public records law, the sheriff argued, only those records that are “retained” by the government agency must be released. And since the booking videotapes usually are recycled within a week, they are not “retained” and, therefore, not public.

The lower court ruled in favor of the sheriff’s office, but an en banc panel of the Supreme Court reversed, saying that a record comes under the law if it is kept for even a minimal amount of time.

“Although the tapes are reused, they are still retained by the Sheriff,” Judge Duane Benton wrote for the court. “The plain and ordinary meaning of the word ‘retain’ does not specify a length of time for holding or maintaining.”

The Supreme Court also ruled that, under state law, the television station was able to recover its legal expenses in fighting the claim from the sheriff’s office. Because the sheriff’s office brought the initial suit, state law considers the suit to have been brought “at the expense of the public governmental body,” meaning the government is liable for the expenses of all parties, regardless of the outcome, the court found.

In a separate opinion, Judge John Holstein agreed with the holding that the videotape was public, but dissented from the part of the opinion regarding legal costs. He argued that requiring the government to bear the cost of the other party in an open records case would have a chilling effect on government, with officials declining to fight records requests because of the potential cost involved.

(Hemeyer v. KRCG-TV; Media Counsel: Jean Lamfers, Kansas City)

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