From the Raleigh News and Observer (3/19/10): Some North Carolina police departments routinely withhold incident reports that don't include criminal allegations, citing a section of state law that's intended to keep criminal investigations private.
Raleigh, Cary and other towns contend that even the police reports that don’t lead to criminal investigations or charges still begin as criminal cases and include criminal intelligence, and therefore are protected under the state public records law.
Media lawyers and other open-records advocates say the agencies interpret the law incorrectly.
“In no case do we release the narratives of report unless we’re instructed to do so by a judge,” said Susan Moran, Cary’s public information officer. “We err on the side of protecting investigative techniques, which is often discussed in the narrative of the report.”
The law states that criminal intelligence information means “records or information that pertain to a person or group of persons that is compiled by a public law enforcement agency in an effort to anticipate, prevent, or monitor possible violations of the law.”
Such intelligence is private, as are criminal investigations.
“It’s possible you have information you obtain to determine if a criminal issue is involved,” said Frayda Bluestein, an associate dean at the UNC-Chapel Hill School of Government. “That information is still protected as criminal intelligence or a criminal investigation even if a crime hasn’t occurred.”
John Bussian, a Raleigh First Amendment lawyer, says that misguided approach obscures too much police information that should be public.
The state Supreme Court has favored a broad interpretation of the Public Records Law that assumes records are public unless otherwise specified in the state statutes, Bussian noted. Lumping all reports into the criminal category violates that, he said.
“That’s amazing, considering the amount of accidental matters [police] attend to,” Bussian said. “Somebody has to say, ‘What’s the possible violation of the law?’ Is it in the abstract, and everything is a possible investigation of the law? That’s not what it means. That’s not the spirit of the way this Public Records Law is written, and not the lawful way to read it, in my view.”
Moran’s explanation is common. And not just the public gets rejected.
When the state Department of Transportation sought to study pedestrian deaths on highway bridges, Raleigh’s Police Department refused to give the agency an incident report about several people who fell off a Beltline bridge last year after a wreck, one of whom died: In November, Lee Eames Jr., 33, fell to his death after stopping to help with an accident. Several other people fell the same night trying to dodge oncoming cars, but were only injured.
The details of the vehicle accident were recorded in a state Department of Motor Vehicles form, which is public. Raleigh police recorded the pedestrian accidents in a separate incident report.
State traffic safety engineer Brian Mayhew, who requested the report, was told by a sergeant that Raleigh doesn’t distribute the reports “unless ordered to by a judge.”
NCDOT says it never received a written response explaining the policy.
Mayhew said the department asked police departments statewide for information on pedestrians falling from bridges. Only one provided feedback but did not supply an incident report.
“What was the violation of the law?” Bussian asked. “Did anyone at that scene assess that there was criminal activity?”
Under police policy, the public isn’t entitled to know the answer.
by Ray Martin, News & Observer Staff Writer