Police might be violating open record laws

S.C. Press Association attorney says 'there is no justification' for the department to black out important information in documents

Charleston police are violating the state's open record laws by withholding key information about crime victims, witnesses and events from incident reports released to the public, one of the state's foremost experts on sunshine laws said.

After years of releasing crime reports in their entirety, Charleston police recently began blacking out names, addresses, phone numbers and other important details from the documents, claiming the information falls within privacy provisions of the state Freedom of Information Act.

"That's nonsense," South Carolina Press Association attorney Jay Bender said. "There is no justification for that. Once it goes in the public record, there is no privacy aspect to it."

Bender has long said the personal privacy exemption is one of the most widely abused provisions of the Freedom of Information Act. It is intended to shield highly sensitive information, such as a person's medical history, not to prevent the public from learning specifics about the people and events involved in a crime, he said.

Such information was made public by the Legislature to help people make informed decisions about safety in their communities and how law enforcement uses their tax money.

With the change, Charleston police went from being one of the more open police departments in the Lowcountry to one of the more restrictive about releasing information. Most other area police departments provide unfettered access to their incident reports, redacting only information restricted by law, such as the names of rape victims or juveniles charged with crimes.

Maj. Tony Elder said Charleston police changed course on the advice of their attorney, Mark Bourdon, a former prosecutor who was hired last year to serve as their in-house legal adviser.

Under Bourdon's interpretation of the sunshine law, police not only have the right to redact the identities of crime victims, witnesses and potential suspects from public reports, but officials also can black out key information about the crime itself.

Elder said police aren't trying to hide anything from the press or the public. Police want to protect the privacy of victims, shield witnesses from possible harm and safeguard crucial information that could interfere with pending investigations and prosecutions, he said.

Bourdon said the release of witness and victim names can have a chilling effect that discourages people from coming forward, and too much information about a crime can impede efforts to make an arrest.

"We have to do what we feel is the right thing to do," Elder said.

The law, however, does not give police this blanket authority to withhold information, Bender said. The open records law has narrowly defined provisions for redacting details from crime reports, and the state Supreme Court has ruled that police must prove that releasing the information would injure their agency in some way. Each instance must be decided on a case-by-case basis, he said.

State Attorney General Henry McMaster has consistently advised public agencies to narrowly interpret all exceptions, and any doubts about the law's provisions should be interpreted in favor of openness.

Kirk Stone, associate professor of media studies at the College of Charleston, said that people should have access to as much information as possible on reports to judge the accuracy of the information, the effectiveness of the police response and the possible threats posed by the incidents and the players involved, among other things.

Mayor Joe Riley said he believes the police department is acting prudently and within the letter of the law by withholding certain details to protect citizens and the integrity of investigations.

"I completely agree with their position and I support their position," Riley said.

The mayor said police also are willing to work with the press and public and review any challenges over omitted details to determine if there is a legitimate reason why the information should be released.

Press association attorneys argue, however, that citizens should not have to negotiate for the right to inspect information that is part of the public record to begin with.

Shortly after arriving in Charleston in 2006, Police Chief Greg Mullen remarked that he was concerned about the amount of information citizens were privy to on police reports. Mullen and Elder, whom he recruited to be his second-in-command, worked together for more than 20 years in Virginia, which has a more restrictive open records law. The recent changes here closely mirror how the law operates in Virginia.

The issue first surfaced in June while police were investigating a series of burglaries linked to the rapes of college-age women. Police initially refused to release two reports from 2007, reveal where the incidents occurred or if they included sexual assaults. Police released reports from two incidents this year, but blacked out much of the pertinent information.

Failure to release such detail effectively denied people living in the areas of the crimes the ability to know they might be in danger. It also effectively denied police the opportunity to obtain volunteered information from residents who might have seen something.

Since then, police have used the strategy to varying degrees. Some incident reports have only phone numbers removed; others redact a wide variety of information. A report on a stabbing, for example, redacted information on the person who reported the crime but identified the victim. Another report, from a robbery, identified the victim and her address but redacted her age. A third report, from a homicide, had some witness names, but not others, and redacted information about the bullet wounds the victim suffered.

Police went even further with reports from recent burglaries on the peninsula, blacking out all references to where the crimes occurred and who was involved. In one report, a supervisor even blacked out the name of a police dog brought in to sniff around the house where the break-in occurred.

"It sounds to me like they're just making this up as they go along," Bender said. "Why is there an interest in the public not knowing the address of a burglary? The person who broke in knows he was there, the victim knows he lives there, and if the neighbors knew, they would be in a position to be more careful."

Carmen Maye, another press association attorney, agreed. "I'm a little mystified as to what they are doing here," she said. "This seems to me to be a clear violation of the open records law."

Elder and Bourdon disagreed, though they did acknowledge that the supervisor went too far in removing the burglary addresses and the name of the police dog. Elder said the inconsistency might point to a need for Bourdon to review all reports before they are released to the public, a change that would add significant delays in informing residents about such incidents.

The law, however, requires that crime reports be immediately available to the public upon completion.

Charleston City Councilman Aubry Alexander said he expects police to be as open as they can be with information, but he thinks they also need to be judicious with details that could impede an investigation or place someone at risk.

Councilman Timothy Mallard said he thinks residents should know everything that's available. "In my opinion, less government is better and openness and transparency serves citizens a lot better than keeping things hidden, which it looks like they're trying to do."

Reach Glenn Smith at 937-5556 or gsmith@postandcourier.com.

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