South Carolina law on what records should be expunged when a defendant's charge is somehow dropped states that "the arrest and booking record, files, mug shots, and fingerprints of the person must be destroyed and no evidence of the record pertaining to the charge or any associated bench warrant may be retained."
Under the S.C. Freedom of Information Act, members of the public have been able to obtain documentation leading to such a charge that's been expunged.
But under House bill 4560, which was approved in that chamber by a 106-0 vote, those files would be placed "under seal" and wouldn't be accessible without a court order. Even in the sealed documents, any language indicating that the suspect was arrested must be redacted, according to the proposal.
The amendment states, in part: "Evidence gathered, incident reports, and investigative files produced as a result of a law enforcement action or investigation must be retained, under seal, by the agency for future investigative purposes or any other law enforcement purpose for a period not to exceed three years from the date of the expungement order and are not subject to an order for destruction of arrest records."
When detectives put Chris Ward in handcuffs earlier this year, he and his attorney were surprised.
Investigators had told the medical doctor's attorney that they probably didn't have enough evidence for prosecution. Ward had been accused of sexually assaulting a woman during a date.
A few weeks after his arrest, prosecutors dropped the charge because they still lacked evidence.
The ordeal raised Ward's curiosity about what happened behind the scenes to prompt his arrest, so his attorney, Andy Savage, filed a request under the S.C. Freedom of Information Act to find out.
It asked for internal emails and documents about the investigation that Savage said might show that a conflict of interest was at play. The Charleston Police Department, the same agency where Ward volunteered as a reserve policeman, had investigated him.
But the agency denied the request because a judge ordered that all records of Ward's arrest should be destroyed - an expungement order that Savage also had asked for.
The clash recently prompted a lawsuit that could help define what information remains public after a former suspect's arrest gets expunged. But that fight could instead play out in the S.C. General Assembly, where a bill that has garnered broad support in the House but little attention in the public eye could stop such records from ever again seeing the light of day.
Savage's court challenge was one of two episodes last week in which people trying to get information about the actions of Charleston police officers came up empty.
In the other, a man said he was ignored by an officer when he complained about a possible drunken driver moments before the motorist caused a four-car pileup. When the man asked for reports about the incident a day later, he said the police told him that he couldn't view such private information and must file a written request - contrary to state law.
Both experiences happened during Sunshine Week, an initiative to educate the public about government openness, and both have implications on the public's right to know about how police officers do their jobs.
Bill Rogers, executive director of the S.C. Press Association, said the House proposal to broaden expungement statutes threatens to "rewrite history." It would preserve investigative files for the police but hide them from the public. Someone who wants to know how a homicide was investigated after a suspect gets acquitted at trial, for example, wouldn't be able to find out.
"It's a troublesome bill," Rogers said. "I don't know why (lawmakers) are trying to keep people from knowing about these criminal records."
But sealing the information might be an unintended consequence of the bill, said one of its primary sponsors, Rep. Murrell Smith, R-Sumter.
He proposed it because law enforcement agencies told him that they were destroying their investigative files after an expungement, then getting sued and having no documentation to defend themselves.
Smith, a criminal-defense lawyer, said no legislators had raised the concern that the bill would seal information that other agencies, including the S.C. Attorney General's Office, regard as public.
"The agencies I've dealt with have been destroying incident reports," Smith said. "It wasn't my intention to make this not subject to the Freedom of Information Act. I'm just trying to stop these records from being destroyed."
Right to know
The night before Gary Bowers visited Charleston police headquarters to ask for a report, he watched a car cross the center line of Maybank Highway and collide head-on with a pickup.
It was the start of a four-car pileup around 10 p.m. March 21 on a bridge near the Stono River.
Bowers, who was visiting from Florida, followed the Nissan for miles on Johns Island until he saw Officer M.G. Jenkins' cruiser parked outside a gas station.
As the Nissan stopped at a red light, Bowers told Jenkins that the car had nearly caused several wrecks. The officer acknowledged Bowers, he said, but didn't follow him when he pulled back onto the road.
Three people were injured in the crash moments later. Bowers said he saw the Nissan's driver throw a beer bottle into the marsh before he hobbled down Maybank Highway toward James Island.
He ran after the man and caught up with him about the time a police sergeant did. The man was unsteady on his feet, but the police said that he didn't smell like alcohol.
Donald Westbury, 38, a felon from Charleston, was jailed on charges of reckless driving, driving with a suspended license and leaving the scene of an accident with injury, according to the police reports that Bowers wanted to see.
"The officer had the option to go save someone from getting hurt," Bowers said. "I wanted to find out why he didn't."
That's why he asked for the documents. He couldn't get them, he said officers told him, because of privacy concerns and because he wasn't involved.
Bowers left Charleston empty-handed and puzzled.
"They told me it was about privacy, and I had to fill out a request form," he said. "I was pretty frustrated."
The department has refused to give up reports in the past, especially when other agencies are involved in the investigations detailed in the documents. But city leaders have touted their efforts to be more open by releasing supplemental reports.
Police spokesman Charles Francis said employees should have told Bowers that he couldn't have the reports because no one was in the office that day to find them.
Under the FOIA, anyone who shows up at a police agency during regular office hours and asks for a report about a recent crime should get the document without a written request.
Bowers later telephoned a records clerk who said he could get the documents if he sent a check. He also spoke with an internal affairs investigator looking into his complaint about the officer.
If Bowers had not been persistent, he said, he might have given up his quest to get the information.
"I knew it was public record," he said. "They told me I had no right. I knew I did."
The Charleston police have taken a stronger stand in denying Ward and his attorney what they think are public documents.
Ward, an emergency room physician from Daniel Island, had volunteered as an on-call medic on the SWAT team until city detectives started investigating the sex allegation.
Ward, 44, was arrested in early January on a charge that was dropped later that month.
His attorney, Savage, sought the reason for his arrest through a FOIA request Feb. 4. It called for emails from high-ranking police officials who Savage said might have put pressure on detectives to make the arrest.
A police employee called Savage on Feb. 26 and said the department would hand over the information.
A day earlier, though, a judge ordered for the records of Ward's arrest to be expunged. The Police Department then told Savage that it changed its mind about his request.
His lawsuit asks a judge to decide whether documentation regarding the investigation and the internal discussions that led to Ward's arrest should be expunged.
The decision could have implications in other cases that affect more than just one person.
If a charge is dropped for someone who goes on to become a career criminal, Savage said, the public should be able to learn about the investigation into the first charge that didn't stick.
"I don't know why they're dragging their feet," he said of the police. "I don't know why they're playing their cards so close to the vest."
Savage said his view was bolstered by the S.C. Attorney General's Office.
In October, Police Chief Greg Mullen asked the attorney general about what reports should be destroyed under an expungement order.
In his response, Assistant Attorney General Harrison Brant wrote that only bookkeeping entries for an arrest should be destroyed. That includes fingerprints, booking reports and mug shots.
Incidents reports and other documentation of an investigation should be preserved, Brant wrote, because they record historical events and the conduct that might have led to an arrest.
The Post and Courier has, in past cases, acquired such information through FOIA requests.
After a resident was fatally shot by a Mount Pleasant SWAT team in 2012, the police released a report that led to the man's arrest on a charge that was later expunged.
Charleston officials, though, told Savage that the law wasn't clear.
City attorney Will Bryant said the department wasn't being evasive; it just didn't want to be found in contempt of court.
"In no way were we not complying with the FOIA request," Bryant said. "We were not dragging our feet. We just wanted to make sure we complied with a court order."
Susan Herdina, also a city attorney, added that the judge's order was broad and called for the destruction of all documents related to Ward's arrest and all "evidence of such records pertaining to such charge." She said it wasn't up to the city to decide that emails are not included.
She noted Smith's legislation, House bill No. 4560, that would seal the documents that Savage wants.
The House voted unanimously in favor of the measure earlier this month, and it's now assigned to a Senate Judiciary subcommittee.
The S.C. Sheriffs' Association drafted the bill's wording, then handed it off for Smith to file, the lawmaker said.
Law agencies statewide, he explained, have been destroying reports and files about their investigations because of expungement orders. Even if a crime remained unsolved because a suspect was exonerated, Smith said in giving an example, agencies have been getting rid of any official record of that crime.
His proposal was designed to preserve the record so expungement couldn't foil any future investigation or prevent agencies from getting the information for litigation down the road.
Smith said he wasn't aware of the attorney general's opinion that the files shouldn't be covered by expungement.
"I'm all for keeping public records public," Smith said. "So maybe this is a good opportunity to take another look at this."
Reach Andrew Knapp at 937-5414 or twitter.com/offlede.
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