TRANSPARENCY TUESDAY: When the police investigation ends, your investigation is just getting started



Using an under-utilized information source -- the closed files of police investigators -- NBC News has shed new light on what campus police knew in 1998 about now-indicted coach Jerry Sandusky's "private workouts" with young boys in the Penn State locker room.

NBC's widely cited reports, accompanied by original police documents posted online, are adding to the public's understanding about whether police responded adequately to the earliest known complaints that Sandusky touched kids inappropriately -- letting him go with the admonition to stop showering with boys, despite a psychologist's warning that the coach's behavior looked like "a typical pedophile 'overture.'"

Because institutional memories in newsrooms are short -- and those in student newsrooms especially so -- journalists sometimes forget to follow up on cases that have been closed. And many law enforcement agencies do not, to put it mildly, invite inquiries into their case files -- often classifying cases as "open" in name only, even when there is no realistic expectation of progress.

Once a police investigation is over and a prosecution is closed, the files compiled by those government officials should become public record. A court in Tennessee, for instance, ruled in Memphis Publishing Co. v. Holt that records of the Memphis Police Department's investigation into a hostage situation that ended in a deadly shootout were open to public inspection once there were no future contemplated court proceedings.

The easiest argument for access will be where, as with the Holt case, the crime has been "solved" (i.e., by the arrest or death of the suspect). Where a case remains unsolved, police may insist that their files are off-limits to inspection because new information could reactivate the case at any time. That is the issue in a dispute between Virginia Tech's Collegiate Times newspaper and the West Virginia State Police, who claim that the unsolved 1998 disappearance of a Tech student remains an "open" file -- and thus exempt from freedom-of-information laws -- even though there is no indication police are actively investigating anything.

There are both legal and public-interest arguments for demanding access to police and prosecution files of cold cases. Unlike the West Virginia disappearance, most criminal cases are governed by a statute of limitations that makes it impossible to bring charges after a prescribed period of years. Once that statutory period has elapsed, there is no longer a good-faith argument for withholding the records.

Moreover, police often discover that leads come forward when they share what they know with the public. In the Virginia Tech case, for example, Robert Kovack's disappearance has long since fallen from the headlines. The release of new information would generate news coverage, potentially bringing forward witnesses or jogging old memories. Since waiting 14 years has not solved the case, engaging public attention could do no harm.

At Humboldt State University, student journalists used a prosecutor's closed-case files to document the troubling circumstances of a young jail inmate's suicide, spotlighting the deplorable lack of mental-health treatment in the local detention facility.

Although the district attorney initially balked at releasing the files, she eventually relented and turned over key documents that -- once it was concluded the death was a suicide and that no charges would be brought -- became public record under California law.

While every state's open-records law has its own wrinkles, it is always worth making the attempt to obtain closed case files. Police and prosecutors have investigative tools that journalists can only dream about, and their findings can be enlightening both as to the facts of a case and as to the way law enforcement did, or did not, do its job.

 

 

Tagged: FOI, public records, Transparency Tuesday