City of Fayetteville v. Rose

Darrell Hickman, Justice. This is a Freedom of Information Act case. The question is whether the so-called law enforcement provision of the Arkansas Freedom of Information Act makes records of an investigation conducted by the Fire and Police Departments of the City of Fayetteville closed to the public. The trial court held that the records and photographs held by the Fayetteville Police Department were exempt from public disclosure because they were records of an “undisclosed investigation by a law enforcement agency of criminal activity.” It held the fire department records open to the public because the fire department is not a law enforcement agency. The City of Fayetteville challenges the court’s decision regarding the fire department records; the appellee, James Kenneth Rose, who sought the records, challenges the decision regarding the police department. We find all the records are public and available for examination because they were not records of an “undisclosed investigation.” The facts are not disputed. On September 26, 1985, a flashlight exploded in the electrical shop of James Kenneth Rose in Fayetteville, injuring two people. Both the Fayetteville Fire and Police Departments investigated the matter. One of the injured parties reported seeing other flashlights in the shop similar to the one which exploded. The federal Bureau of Alcohol, Tobacco and Fire Arms was notified, and it conducted an investigation. This report was turned over to the U.S. Attorney’s Office. A federal grand jury subsequently indicted Rose for manufacturing and possessing unregistered explosive devices. Rose’s attorney requested permission under the Arkansas Freedom of Information Act to inspect and copy any records and photographs contained in the investigative reports made by the Fayetteville Fire and Police Departments. At the request of the U.S. attorney, the City of Fayetteville refused to honor the request of Rose’s attorney on the basis that the records were from an “undisclosed investigation by law enforcement agencies of suspected criminal activity” and therefore exemptfrom disclosure under Ark. Code Ann. § 25-19-105 (b)(6) (1987). We agree with the trial court’s decision regarding the fire department records but for a different reason. There was no “undisclosed investigation.” Everyone knew about it. The Fire and Police Departments of Fayetteville had finished their investigation. The federal Bureau of Alcohol, Tobacco, and Fire Arms had investigated the matter, turned its report over to the U.S. attorney’s office, and a federal grand jury had returned an indictment. No reading of the Freedom of Information Act consistent with our decisions could support a finding that there was an “undisclosed investigation” involved. Therefore, the records held by the fire and police departments are subject to disclosure under the Freedom of Information Act. Generally, all public records are available for inspection under the Freedom of Information Act. Exceptions to that rule are spelled out in Ark. Code Ann. §25-19-105. The exception we are dealing with reads that “undisclosed investigations by law enforcement agencies of suspected criminal activity” “shall not be deemed to be made open to the public.” Ark. Code Ann. § 25-19-105(b)(6) (1987). This provision is unique to Arkansas law. Other states have somewhat similar provisions in their Freedom of Information Acts, but none are exactly like ours. For example, the Oregon provision exempts from disclosure “investigatory information compiled for criminal law purposes,” unless the public interest requires disclosure in the particular instance. See Jensen v. Schiffman, 24 Or. App. 11, 544 P.2d 1048 (1976). The Massachusetts provision exempts from disclosure “investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 354 N.E.2d 872 (1976). See also State ex rel. Beacon Hornal Publishing v. University of Akron, 64 Ohio St. 2d 392, 415 N.E.2d 310 (1980), for the Ohio provision, and see J. Watkins, Access to Public Records under the Arkansas Freedom of Information Act, 37 Ark. L. Rev. 741 (1983-84). In making our decision, we have interpreted the Freedom of Information Act as we always have “to promote free access to public records.” Legislative Joint Auditing Committee v. Woosley, 291 Ark. 89, 722 S.W.2d 581 (1987). We need not reach the question of whether the Fayetteville Fire Department is a law enforcement agency because we have decided there was not an “undisclosed investigation” involved. Affirmed on direct appeal. Reversed on cross-appeal. Holt, C.J., and Hays, J., dissent.