Monday, January 30, 2012

Columbia police - really that clueless about FOIA?

Some day, I pray, the Rent-a-Clue truck is going to pull in front of the Columbia (S.C.) police department and actually deliver a load of common sense.

Until then, apparently, we will have to continue to fight through the cluelessness that characterizes the department's handling of information, especially when it comes to the state's Freedom of Information Act. OK, in the 20 years I've been in town running news operations, the cops have improved from pre-Cambrian era public information operations to something resembling the Victorian era. But maybe we could nudge a little closer, eh?

Case in point - this weekend, police issued a news release (which, interestingly enough, is not on the police website as of when this is written at least 48 hours later)  that there was a sexual assault allegation near the University of South Carolina campus. There were a few details, but not many, and the police would not say if the victim was a USC student.

Permit me a momentary digression, but what actually initially caught my eye in that story was the university police officer supposedly saying "state law prohibits the release of information regarding the victim in an alleged crime," which is patently false - it's only in sexual assaults. I suspected - hoped - that there had been a miscommunication between the reporter for the student paper and the USC police officer.

So I approached the reporter, a student in one of my classes. She was unclear from her notes as to whether wires might have gotten crossed with USCPD, but I advised her to ask for the police report, which brings us back to Columbia PD, the actual investigating agency.

She then sent me this lovely communication from Columbia PD's spokeswoman, Jennifer Timmons:

Due to the on-going investigation and sensitive nature of the allegation, it wouldn’t be appropriate to release the incident report at this time. This is a sexual assault allegation that the Columbia Police Department is investigating, and releasing specific information would be too premature.

Investigators are also still gathering additional information related to the case. Furthermore, state law prohibits the revealing or identifying any sexual assault victim or victim who reports such an allegation. I am relieved to know that you did receive my news release.

 Please review Section 30-4-40 of South Carolina’s Freedom of Information Act:

SECTION 30 4 40. Matters exempt from disclosure.
(a) A public body may but is not required to exempt from disclosure the following information: (1) Trade secrets, which are defined as unpatented, secret, commercially valuable plans, appliances, formulas, or processes, which are used for the making, preparing, compounding, treating, or processing of articles or materials which are trade commodities obtained from a person and which are generally recognized as confidential and work products, in whole or in part collected or produced for sale or resale, and paid subscriber information. Trade secrets also include, for those public bodies who market services or products in competition with others, feasibility, planning, and marketing studies, marine terminal service and nontariff agreements, and evaluations and other materials which contain references to potential customers, competitive information, or evaluation. (2) Information of a personal nature where the public disclosure thereof would constitute unreasonable invasion of personal privacy. Information of a personal nature shall include, but not be limited to, information as to gross receipts contained in applications for business licenses and information relating to public records which include the name, address, and telephone number or other such information of an individual or individuals who are handicapped or disabled when the information is requested for person to person commercial solicitation of handicapped persons solely by virtue of their handicap. This provision must not be interpreted to restrict access by the public and press to information contained in public records. (3) Records of law enforcement and public safety agencies not otherwise available by state and federal law that were compiled in the process of detecting and investigating crime if the disclosure of the information would harm the agency by: (A) disclosing identity of informants not otherwise known; (B) the premature release of information to be used in a prospective law enforcement action; (C) disclosing investigatory techniques not otherwise known outside the government; (D) by endangering the life, health, or property of any person; or (E) disclosing any contents of intercepted wire, oral, or electronic communications not otherwise disclosed during a trial. (4) Matters specifically exempted from disclosure by statute or law.

With warmest regards,
Jennifer Timmons

Well, gee, Jennifer, with warmest regards, get your head out of where the sun doesn't shine and review some relevant court cases and some other parts of the law, specifically 30-4-30:
(d) The following records of a public body must be made available for public inspection and copying during the hours of operations of the public body without the requestor being required to make a written request to inspect or copy the records when the requestor appears in person:

(1) minutes of the meetings of the public body for the preceding six months;

(2) all reports identified in Section 30-4-50(A)(8) for at least the fourteen-day period before the current day; and

(3) documents identifying persons confined in any jail, detention center, or prison for the preceding three months.

That cryptic reference in (2) there? That's to police incident reports. And the word used is "must," not "if you feel like it." In short, the Legislature went out of its way to specify that police incident reports are public records open to everyone.

And, looking at the section you cite, 30-4-40, try reading a little farther in:

(b) If any public record contains material which is not exempt under subsection (a) of this section, the public body shall separate the exempt and nonexempt material and make the nonexempt material available in accordance with the requirements of this chapter. (Thanks to Bill Rogers of the SC Press Association for the reminder)

Then let's hop over to the court files, where you'll find there isn't even really a conflict between this and the privacy provision because the S.C. Supreme and appeals courts routinely have held that police departments can't make up privacy exemptions. Further, the court has clearly held that nonprivate information in such reports must be segregated from disclosable information - in this case that would cover the name and other very specific related information, and that's about it. In fact, Jennifer, here's some specific language from one of the controlling cases, Burton v. York County Sheriff's Department:

In sum, we emphasize that law enforcement agencies do not have carte blanche to deny all FOIA requests for criminal investigative reports.  The information contained in these reports can be withheld from disclosure only to the extent that it falls within one or more of the exemptions enumerated in section 30-4-40(a).  The determination as to which portions of a report are exempt and which portions must be disclosed should be done on a case-by-case basis. (from an earlier case). ...

Unless and until the Supreme Court rules otherwise, we will follow its precedent and not expand the “right of privacy” under the Fourteenth Amendment beyond those situations which the Court has ruled bear on the most intimate decisions affecting personal autonomy—namely reproductive rights, familial and marital relations.
This has been backed up by an even more recent ruling at the Circuit Court level by a judge who permanently enjoined the state Department of Public Safety from citing an "ongoing investigation" as a reason to withhold records. (Updated 11:17 a.m. 1/31)

Notwithstanding, apparently the Columbia PD feels it has the authority to declare by fiat the ability to designate a much wider privacy exemption, unlike the S.C. attorney general's office, which seems to have a clear grasp of the law (PDF).

We'll assume for now that the spokeswoman is just passing on bad legal advice. So we'll let the lawyers jaw a bit - until the next time Columbia PD wants to make it up, and the next time, and the next time. ...

(South Carolina has a long history of various shenanigans to avoid the law - even when police are clearly told they can't do what they are telling officers to do.)

Columbia is part way into the first term of a new mayor, Steve Benjamin, and a new police chief. It will be interesting to see if this administration ever grows enough kahunas to demand that the city police stop making up the law and start following it.

With warmest regards.

Update: When I wrote this, I suspected, but could not confirm, that Jennifer Timmons is the same JT who used to be a journalist at a local TV station, WACH. One of my Facebook friends has now confirmed it - which makes me even more disappointed that she would mindlessly spew this kind of BS.

Update 3:45 p.m.: Timmons now claiming police need an FOI request letter even though the law clearly says the reports must be available for public inspection in person, no letter required.  The cluelessness continues.

Update 4:30 p.m.: Reporter goes to cop shop (with copy of law) - asks to see report. Desk officer says only Timmons can provide (which is against the law as it is, since the reports are supposed to be out for public inspection). Calls Timmons' office. Timmons supposedly there and coming down. No one shows. Desk officer calls office again. Timmons has left. Well, I think we've settled the question about whether Timmons is a professional. Timmons emails back that she had not left but had gone to talk to assistant chief. That's not what the records officer told reporter.

Update 2/1: The police have now released the incident report (see below). It's what I expected - mostly blacked out - though there still are some nuggets to be gleaned - that the victim was probably from the nearby town of Lexington, that the person and the attacker were acquainted and that someone, probably the victim, told police both were using alcohol. None of this should be used without more reporting, of course, but good reporters use these no matter how redacted for clues to dig up more information. And for the campus paper, where the threshold question among readers is likely to be "do we have a rapist loose in the neighborhood," those can be valuable clues to pursue.



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