|
Posted on April 8, 2007 by the Columbus Ledger Enquirer.
Ready, aim, wait
If you live in Columbus, we have news for you. Your local police department, on advice of your local city attorney's office, is systematically violating the spirit of the state Open Records law. They may even be violating its letter, according to two media law experts.
The department, as a matter of practice, hides much of what regular folk think of as a "police report" behind a wall of secrecy in a "supplemental report" that is technically exempt from your right to know what crimes or criminals may be lurking in those otherwise public documents.
The issue came to our attention as we looked into a matter of great public concern, that is, the case involving Judge Hayward Turner III, initially charged with pointing a gun at two motorists and ultimately convicted in a plea deal April 4 of reckless driving.
But what did the initial police report say? Virtually nothing. Nothing about Turner's admission to the police that he had a gun in his car that he "raised" to show to the victim, nothing about the victim following him from the Second Avenue on-ramp of the J.R. Allen Parkway to the Target store near Bradley Park to write down his license number. It did not even identify Turner by name.
This newspaper only learned that Judge Turner was the defendant from a tip, which we followed up on with a review of the jail logs.
Then the case gets changed from pointing a pistol to reckless driving. In separate discussions, both Turner's lawyer, J. Mark Shelnutt, and the prosecutor in the case, Nina Markette Baker, agree that the penalty given Turner for reckless driving was at least as severe as he would've received for pointing a pistol. We'll leave it to others to debate that proposition.
But what we know for sure is that local police told us Thursday and again Friday that they would not release the "supplemental" police report in the matter. That's the report that has all the details about what happened -- including the critical fact that Judge Turner admitted to police that he "raised" the gun to show the other driver that he had it.
Police Chief Ricky Boren has always been open and forthcoming with the news media. In fact, in withholding the supplemental reports, he is merely relying on the advice of counsel, in this case Assistant City Attorney Jaimie DeLoach.
DeLoach informed us that because the judge has the right to reverse his plea or appeal the conviction, the supplemental report is not yet an open record under an "ongoing investigation" exception to the state public records law. She cited case law to support her legal opinion.
But there are flaws in that opinion, say Open Records experts Walter H. Bush and Hollie Manheimer. Bush is one of the state's top First Amendment lawyers, and Manheimer is executive director of the Georgia First Amendment Foundation. Both say this particular supplemental report is a public document.
Bush points out the distinction between truly "supplemental" reports that are investigative in nature, like witness interviews, telephone follow-ups and forensics, as opposed to on-the-spot basic descriptions of what happened, the defendant's name and the initial factual basis for the alleged crime.
If you want to get an idea of just how insubstantial these initial incident reports are, take a look at the ones in the Turner matter -- there are two. They list the alleged victims' names and addresses, the name, beat and serial number of the officer to whom the complaint was made, and the following:
1. Report No. 1: INITIAL CALL: On 08-25-06 Detective R. Jackson was assigned to follow up on a disturbance which occurred on 08-23-06 at J.R. Allen and 2nd Avenue. THIS CASE REMAINS UNDER INVESTIGATION."
2. Report No. 2: On 08-23-06, Officer G. Diltz and I received a call to 1591 Bradley Park Drive in reference to a disturbance. Upon arrival, we spoke with the victim, Frederick Lumzy. This case is still under investigation."
That's it.
By contrast, the supplemental report has a blow-by-blow of the entire episode, along with Judge Turner's denials and a passenger's apparent support for the judge's claim that he did not point a gun.
The point is that this newspaper, and therefore you, as the ultimate owners of all public records, were denied access to them. Reasonable people can disagree about the level of detail the public should demand in an initial report, but can anyone with a straight face say that what we've listed above is adequate?
So how'd we get the documents? Ms. DeLoach told us that it is within the custodian of records' discretion to release them, even if the city attorney's office believes that legally she doesn't have to. So Ms. Baker, who has been open and forthcoming throughout this process, gave us the supplemental report.
But what happens the next time a public official or powerful person gets caught up in an embarrassing situation and his name doesn't even appear in the police report? Well, the police chief, the city attorney and indeed the mayor all work for you. We think a few well-directed questions to each of them might mean a change in policy.
Reprinted with permission from the Columbus Ledger-Enquirer.
|