Transparency (FOIA, open records, sunshine) advocates,
public information officers, and judges hearing FOIA cases throughout the
United States should heed a straightforward and concise decision this spring from
the Arkansas Supreme Court, per Justice Rhonda K. Wood, concerning ongoing police
investigations. The case is Arkansas State Police v. Keech Law Firm, P.A.,
No.
16-545 (Ark. Apr. 20, 2017). Bonus:
the case comes with interesting, if tragic, facts.
In 1963, the murder of Harding College (now University) alumna
and English Professor Ruby Lowery Stapleton shocked the community of Searcy,
Arkansas. According to the Harding College Bulletin, Stapleton was believed taken
from a self-service laundry in Searcy, Arkansas. Federal and state law enforcement officers
and Harding volunteers searched for her for 11 days, and Harding offered a
$1,000 reward for information leading to her detection. Her body was found by a squirrel hunter in a dry
creek bed 15 miles from the laundry. Stapleton
was survived by her husband and two children.
Professor Ruby Stapleton in the Harding College Bulletin, October 1963
Stapleton’s murder remains unsolved. Fifty years later, in November 2013, family
members sought access to the Arkansas State Police case file on the Stapleton
murder. The request spurred brief police
re-engagement with the cold case, apparently to no avail. Police refused access to the file under the
ongoing investigation exemption of the
Arkansas Freedom of Information Act.
After in camera review of the
file, the Arkansas Circuit Court rejected the police theory and ordered the
file disclosed. The Arkansas Supreme
Court affirmed.
Ongoing investigation exemptions are a FOIA universal across
the state and federal sunshine statutes.
The public policy supporting them is hardly disputed: police
investigations require secrecy, lest evidence be compromised or suspects tipped
off. At the same time, transparency is
nowhere more urgent a policy priority than when counterpoised with the enormity
of state police power to curtail liberty and even life. This balance proves exceptionally difficult
to achieve. Cases vary broadly in their
particulars, and judicial determinations are profoundly fact driven.
Therefore, though the language of ongoing investigation
exemptions varies considerably, the question usually boils down to a court’s
willingness to defer to, or to second-guess, police discretion. The Arkansas statute provides a good example
of the textual variability, because the statute actually protects only “undisclosed”
police records against disclosure. But
that nonsensical oddity has long been construed by the state courts to mean “ongoing
investigation,” in conformance with multistate FOIA norms.
In practice, on the whole across the states, courts tend to err
on the side of secrecy. To the
frustration of journalists especially, no local judge wants to be responsible
for obstructing or derailing a criminal investigation. Thus law enforcement officials are frequently
able to prolong the secrecy surrounding an investigation file well beyond arrest—to
charge, to trial, even to exhaustion of appeals. In fact, criminal investigation files might
remain sealed indefinitely, while co-conspirators remain at large—or crimes
remain unsolved.
Despite judicial patience that sometimes seems inexhaustible,
the imperative of accountability for law enforcement weighs heavily against
indefinite secrecy. The Arkansas Supreme
Court quoted a
treatise on the Arkansas FOIA co-authored by John J. Watkins, Robert E. Steinbuch,
and myself:
Police and prosecutors should not be permitted to apply this exemption as a matter of course until conviction or acquittal, or indefinitely until a charge is brought, if there is no genuine interest in enduring secrecy. To do so would excessively insulate the government against legitimate probes by the public and media into the performance of law-enforcement functions, even apart from the disadvantage to criminal defendants.
Long-cold cases such as the Stapleton murder squarely present
this problem. In reviewing the
investigation file in camera in 2014,
the Arkansas Circuit Court found “sparse activity” since 1965. Police cited no documentary evidence of
ongoing investigation from 1965 until the filing of the family’s FOIA request. The Arkansas Supreme Court summed up the case
simply: “This is a 54-year-old murder case. No charges have been brought or
appear to be imminent. The victim’s
family and the public are entitled to know how the officials in this case, i.e., law enforcement, performed their
duties.”
In the course of its concise analysis, the Court reiterated several
points of best practices in FOIA compliance and dispute resolution. These are multistate principles that warrant
review.
- A FOIA should be construed liberally to accomplish the objective of transparency.
- Inversely, FOIA exemptions should be construed narrowly to accomplish the objective of transparency.
- As usual in litigation, questions of law and interpretation of a FOIA are subject to de novo appellate review.
- A trial court should conduct in camera review of disputed records to determine the applicability of a statutory exemption from disclosure.
The Arkansas Supreme Court stated moreover another solid practice
point that had been lacking in state precedent:
Also as usual in litigation, questions of fact in a FOIA analysis are
subject to the more deferential appellate standard of review, clear error. As the Court observed, application of an ongoing
investigation exemption is especially prone to generate a question of fact, as a
qualitative, if not quantitative, assessment of purported police investigative
activity is part and parcel of the analysis.
In the Stapleton FOIA case, the Court applied the clear error standard
to defer to the circuit court’s assessment of the 1965-2014 police file.
As the Arkansas Court wrote, “A finding is clearly erroneous
when the appellate court is left with a definite and firm conviction that a
mistake has been committed.” Or as the
Seventh Circuit famously wrote in 1988: “To be clearly erroneous, a
decision must strike us as more than just maybe or probably wrong; it must, as
one member of this court recently stated during oral argument, strike us as
wrong with the force of a five-week-old, unrefrigerated dead fish.” A finding that is not clearly erroneous should
be left undisturbed.
Finally, full disclosure and point of privilege: Justice
Wood, who authored this case for the Arkansas Supreme Court, was a law
student, and then later a dean, when I taught at the University of Arkansas at
Little Rock Law School. She has shined in
her career as lawyer, academic, and judge, undoubtedly owing to her unyielding integrity,
character, and intellect—and decidedly owing in no part to me. Nevertheless, I assert pride by virtue of
mere association.
