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Ain't No Sunshine

When is a public record not a public record? Ask St. Louis police.


The St. Louis Metropolitan Police Department has a new policy concerning public records: Let the sun shine on some.

The stance came to light this past week, when the Riverfront Times was denied access to sections of police reports that previously had been available under Missouri's open records statute, commonly known as the Sunshine Law. Meanwhile, a private citizen's lawsuit challenging another aspect of the police department's application of the Sunshine Law is making its way through the Missouri Court of Appeals. Attorneys say the outcome of that case will affect police agencies, media outlets and individuals across the state.

On April 14 the RFT requested fourteen incident reports and one arrest record from the St. Louis police department. On April 25 Jane Berman Shaw, general counsel for the department's legal division, faxed the newspaper a letter indicating that the records had been readied for release (pending payment of a fee of $51.70). But there was a catch:

"You may notice a change in what is produced from prior responses of the police department," wrote Shaw. Specifically, Shaw stated, "(a) No longer is the more lengthy concluding narrative section produced, and (b) the addresses and phone numbers of victims, suspects and witnesses are not produced."

A month earlier the police department had provided an incident report including twelve pages of narrative. What prompted the sudden change of protocol?

"This is due to a recent mediation in which the Attorney General's Office, the Post-Dispatch and the Police Department participated and which included disputes as to exactly what should be included when an incident report is produced," wrote Shaw.

That came as news to Post-Dispatch editor Ellen Soeteber, who expressed shock upon being informed that the police department's new policy was the result of a "mediation" with the office of Attorney General Jay Nixon.

"For them to claim that we're responsible for narrowing a request, I find insulting," Soeteber fumes.

Soeteber does, however, confirm that her paper and the police department have been feuding over the Sunshine Law since late last year.

In November a story by Post reporter Jeremy Kohler revealed that the police department had undercounted crimes in 2003, resulting in a misleadingly deflated crime rate. Following up on a tip that the undercount owed to the department's use of "crime memos" instead of incident reports in some cases, Kohler filed a Sunshine Law request for all crime memos written between June 2003 and June 2004.

"Ever since we went after those records, all this nonsense started," Soeteber says.

This isn't the first time the police department has holed up behind closed doors. For years the department has fought to deny access to internal-affairs files involving officers suspected of criminal conduct -- despite a 2001 Missouri Supreme Court ruling that states explicitly that such records are public. (For details, see Bruce Rushton's "Dirty Little Secrets" and a follow-up, "Cop Secret," in the February 11 and March 3, 2004 issues of the Riverfront Times.)

Now the Post, which had previously enjoyed unfettered access to crime reports, was suddenly faced with the prospect of paying sky-high fees for incomplete records.

There ensued a series of negotiations between Shaw and the Post's attorney, Joe Martineau of Lewis, Rice & Fingersh.

"At one point the police department was contending that any part of a crime report was not a public record. Do you believe that?" Soeteber recounts.

The Sunshine Law defines an "incident report" as "consisting of the date, time, specific location, name of the victim and immediate facts and circumstances surrounding the initial report of a crime or incident...." An "investigative report," meanwhile, is "a record, other than an arrest or incident report, prepared by personnel of a law enforcement agency, inquiring into a crime or suspected crime, either in response to an incident report or in response to evidence developed by law enforcement officers in the course of their duties."

If the Sunshine Law isn't clearly written, nor is it particularly liberal when it comes to which records it compels public agencies to cough up. First Amendment attorneys point out that the law's language lends itself to broad interpretation, and it's amply larded with exceptions. While incident and arrest reports are considered open records, there are exceptions for cases in which charges aren't filed or are dismissed, and for records involving defendants who have been found not guilty. Documents containing highly sensitive information may also be excluded. And investigative reports are generally considered closed records until the case is adjudicated.

The police department now maintains that the narrative sections of its incident reports contain information that would be defined under the statute as an "investigative report."

"Our position is that the police department should not be withholding any part of the incident report and that all parts are publicly available under the statute," counters Martineau.

Separately, Martineau and Shaw consulted the Attorney General's Office for guidance.

"Their opinion was that we've been giving out way more stuff than we had to," Shaw reports. "As a result we were incurring a lot of additional charges, reading the narratives and redacting the narratives. Their opinion is that that information is not required under the Sunshine Law, which makes our lives a whole lot easier."

Mark Sableman, a media lawyer at Thompson Coburn in St. Louis, believes the Attorney General's Office is getting this one wrong. "Obviously the point of the Sunshine Law is to make public records available to the public," says Sableman. "It has nothing to do with how easy or difficult it is for the officials to comply."

While Shaw considers the row resolved, Attorney General's Office press secretary Jim Gardner says talks between the three parties are ongoing. "We're optimistic that we can reach a resolution on this," Gardner says.

The Post, meanwhile, is speaking up in a related public-records fight.

The paper recently submitted a brief to the Missouri Court of Appeals on behalf of St. Louis chiropractor Jason Goodman, who filed suit in circuit court in October charging that the St. Louis Board of Police Commissioners had violated the Sunshine Law by redacting accident reports.

Goodman had routinely made "bulk" Sunshine requests for reports from all collisions involving at least two cars within city limits and during a certain period of time. He began requesting the records about a year ago and had no trouble getting them -- until last August, when the police department began blacking out victims' addresses, phone numbers and driver's license numbers, among other information.

According to Goodman's suit, the Sunshine Law does not authorize public agencies "to delete, omit or redact the address and telephone number of anyone involved in the automobile accidents from any incident report."

In a motion to have the case dismissed, the police commissioners point out that Goodman used the reports to solicit clients. They deem his bulk requests "burdensome" and assert that they "may result in what some may characterize as sleazy marketing opportunities" and "oppressive and absurd consequences" -- i.e., requiring lots of the legal division's time.

Judge David L. Dowd swiftly dismissed the case -- giving the police department free rein to redact information from reports and to deny bulk requests. Goodman's appeal is pending.

"A lot of very important news coverage comes out of bulk requests made by media entities," argues Post-Dispatch attorney Martineau. "Issues like racial profiling, for example: You're not going to be able to report on that by making a specific request for one specific public document."

Jean Maneke, First Amendment attorney for the Missouri Press Association, has also filed a brief in support of Goodman. Maneke warns that if the appeals court sides with the police department, the ruling might prove precedent-setting: "It's possible that the order will cause police departments all over the state to change the way they handle incident reports."

Seconds local media attorney Mark Sableman: "What the police were doing -- and what the court agreed with -- was making their own judgment that certain commercial users shouldn't be entitled to information that is made public by the Sunshine Law. I think that is totally the wrong reading of the statute."

Sableman praises Goodman for following through with his suit and argues that it's essential for commercial interests to make use of the Sunshine Law. "They have more financial incentive and ability to assert their rights," he notes. "And when they assert their rights, it keeps the information open for everybody."

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