Green light for public access to police records in Washington, STOP sign in Kentucky



Write-ups of police investigations are among journalists' most-wanted public records -- and among the hardest to obtain. Two state Supreme Courts -- coincidentally ruling on the same day last week -- sent conflicting signals about how much access the public can demand.

While a ruling from Washington state limits the ability of police to withhold disclosure of cases they're finished investigating, a decision by the Kentucky Supreme Court gives police added latitude to blank out identifying information from crime reports.

Let's look first at the Kentucky case, which has special importance to student journalists because it involves access to the identities of minors.

It all started when journalists from the Kentucky New Era newspaper asked to review eight months'  worth of police reports from the City of Hopkinsville, needed for a story to assess whether the city was responding with equal urgency to similar crimes occurring in different neighborhoods. The city produced heavily redacted documents missing addresses, phone numbers and names for victims, witnesses and even suspects. (The city eventually relented and revealed the names of adults named in the police reports, but withheld all remaining identifying information, including the names of anyone under 18, even juveniles arrested on felony charges.)

The newspaper sued, but on Dec. 19, a unanimous Kentucky Supreme Court ruled in the city's favor, finding that the redactions were justified by concern for the individuals' personal privacy.

"Private citizens… have a compelling interest in the privacy of law enforcement records pertaining to them," Justice Lisabeth Hughes Abramson wrote in last week's ruling.

The decision has sweeping potential to adversely affect public access to records in Kentucky, because it finds that otherwise-public records can be concealed on the basis of "personal privacy" even if there is no indication that disclosure would cause any particular harm -- simply the disclosure, the justices ruled, is harm enough. But the ruling's most immediate impact is on journalists' access to police incident reports, the write-ups that officers create when they are called to respond to emergencies, including crime scenes.

The names of arrested perpetrators are almost universally available from police in every state, and witness and victim names, while occasionally withheld, are routinely made public.

Incident reports are the mother's milk of police reporting. Without a complete incident report, a journalist can't tell whether the guy who came away from a mugging with a few scrapes is Dave Lunchbucket (no story), or Justice David Souter (big story). Incident reports enable journalists to effectively keep watch on racial disparities in arrests and police brutality. Journalists need a way to contact crime-scene witnesses to fill in the narrative details that police reports leave out -- including, at times, whether the police overreacted.

Access got a little easier in Washington state with a Dec. 19 Supreme Court ruling rejecting a police department's contention that an entire file on a completed criminal investigation could be concealed.

The Washington Supreme Court decided 5-4 that police investigative files can be withheld only in very narrow circumstances -- where, for instance, police are actively pursuing a suspect in a recent murder. Absent those exceptional circumstances, Chief Justice Barbara A. Madsen wrote for the five-justice majority, the police must justify withholding each individual document on a case-by-case basis (showing, for instance, where a particular document would compromise "intelligence information" or otherwise qualify as exempt under the Public Records Act).

The case arose when a West Seattle man involved in a scuffle with an off-duty police officer asked for both the investigative file on his own criminal case and also a separate file involving an internal misconduct investigation of the officer.

The criminal case was in a peculiar status. Seattle police sent the case to the city attorney's office, but prosecutors declined to bring charges and sent the case back to the police -- meaning, in the opinion of the Seattle Police Department, the case was still open, and the file could be withheld under an exemption in the Public Records Act covering records "essential to effective law enforcement."

But the justices decided that, once a case has been sent for prosecution, it is no longer an open police investigation, and -- absent some narrow justification for withholding certain documents -- the police file is an open record.

Likewise, the justices found that there is no categorical exemption for all internal-affairs investigations of police behavior. Only where police can demonstrate that disclosure of a particular document would compromise effective law enforcement may they decline to produce it, Chief Justice Madsen wrote.

The ruling in Sargent v. Seattle Police Department is a sensible decision that minimizes the risk of abuse. Many police agencies habitually over-classify documents as being part of "open investigations" even when the case has long been resolved -- or has gone cold with no resolution -- and even where the information being requested runs no risk of interfering with solving the case.

For tips about effective police reporting and access to law enforcement records, download a free copy of the SPLC's handbook, "Covering Campus Crime."

Tagged: "police reports", Kentucky Supreme Court, newsgathering, public records, Washington Supreme Court