Focusing on Law Enforcement Info

It is an appropriate time to review the statutory rights of access to law enforcement material. I’ll use Maryland as an example, both for brevity and because Maryland is a "typical" state. Delaware law is not as well developed, the DC Freedom of Information Act follows federal law, as Maryland tends to.

The Maryland Public Information Act appears at Section 10-611 of the State Government Code. It has several sections likely to limit access to any on-going law enforcement investigation.

· Section 10-615 requires denial of access if any other law, including federal statute, forbids revealing the record.

· Section 10-618 (f) says that a custodian may deny access to records of virtually any law enforcement investigatory file. This is permissive, giving the custodian discretion, and the only limitation on the official is the requirement to explain the denial, which is true for all denials.

· Two sections forbid the release of arrest warrants or criminal charging documents before the suspect is served.

· The custodian may deny inspection of an interagency or intra-agency document if it would not be available to an adverse party in a court proceeding.

According to opinions of the Maryland attorney general’s office, the first information into a law enforcement agency that alerts the agency that a crime may have been committed or that help is needed is theoretically available for public inspection. However, every such opinion allows for the possibility that the police may incorporate the report into an investigatory file. This would make its release subject to the "custodian’s" discretion.

For example, a 1986 attorney general’s opinion opened with the conclusion that a recording of a 911 call is much like an arrest record. Normally it is not part of a law enforcement file.

The opinion then chipped away at the access with exceptions. It said if the recording contains medical or psychological information, that part of the recording would be redacted under another PIA exception. And, if a law enforcement agency decided to incorporate the recording into an investigatory file, it would be exempt from the act.

The crime victim’s name and address has no statutory protection in Maryland, but again, it is possible for the law enforcement agency to include that information in an investigatory file, then rule it would be contrary to the public interest to reveal the file in response to a PIA request.

Reporters are entitled to arrest logs, provided they’re arranged in chronological order, not by name or event. If the arrest logs or records contain investigatory material, that material can be excised, but the arrest report itself should remain available.

The first section, §10-615, is the section that will kick in restraints imposed by the U.S. Code sections which affect national security interests. If there’s a further interest in this topic, we can outline some of those restraints in the next issue.