A Quick Reference Guide to Accessing Public Records in All 50 States

public records

A quick reference guide to accessing public records in all 50 states.

BY:

TWITCH

U.S. Defenders

Introduction

As the motorcycle rights movement across the country attempts to recapture their rights base by passing motorcycle profiling bills, fusion center, equal access bills and other legislation aimed at protecting the motorcycle culture a critical element in their successes has been establishing a pattern of evidence. Being able to provide legislators with more than just anecdotal stories about motorcycle profiling and providing tangible evidence has proven far more impactful. One of the most effective tools in obtaining evidence of motorcycle profiling has been the use of public records requests to obtain law enforcement records which evidence motorcycle profiling by law enforcement. In fact, it can be said that their evidence is our evidence.

While there are a myriad of records that can be obtained via a public records request including emails, internet search histories, department cell phone records, training records, etc. we will focus on the ones most commonly associated with the average motorcycle profiling stop. Those records include:

• Police Report
• CAD Report
• Dash Cam Video / Photos
• Radio Traffic

Police reports can be excellent pieces of motorcycle profiling evidence since they are written in the officers own words. Additionally, most reports will indicate who the report was disseminated to. If we look at the following police report obtained via public disclosure we can see that in his own words the officer admits to profiling the group, following the group of motorcyclists and gathering intelligence because the motorcyclists were wearing colors, and based on his experience he knows the group to have been involved in criminal activity in the past. He makes no mention of the group actively committing any crimes or traffic infractions. Additionally, we learn that the report was disseminated to the FBI Gang Unit.

CAD Reports can be another useful piece of evidence of motorcycle profiling. CAD stands for Computer Aided Dispatch and is the communication record between dispatch and the officer’s mobile computer. CAD reports identify the date and time of a call, the officers involved and all communications back and forth between the officer and dispatch such and driver’s status and warrants checks, etc.

CAD Incident Inquiry

Complaint: 20100580645P Disp: P Call Received: 20100227 1420

Call Cleared: 20100227 1437

Date/Time Unit ID Station Incident Type

Dispatch: 20100228 1004 LK100 Dispatcher: 206389 LD01 Suspicious P

Location: Steilacoom Bl SW, S Tacoma WY

System Date Time Com Station Off Text

20100227 14:20:43 ID LD01 E033 LK100 Hall, Jeff

20100227 14:20:43 On view LD01 GROUP OF OUTSIDERS MC GANG WILL JUST FOLLOW THEM

20100227 14:21:23 Query LD01 E03033 LK100 @ 741525

20100227 14:21:48 Query LD01 E03033 LK100 @ 6A8370

20100227 14:22:12 Query LD01 E03033 LK100 @ 989753

20100227 14:22:47 Query LD01 E03033 LK100 @ 956060

20100227 14:23:01 Back up LD01 E03033 LK144 Osness, Paul

20100227 14:23:31 Back up LD01 E03033 LK123 Brown, Matt

20100227 14:26:23 Misc LD01 LK100, OUTSIDERS OMG MC GANG, TACOMA

Here, the CAD reports evidences the officer profiles the motorcyclists by identifying them as a gang and following them when there has been no criminal or traffic infraction identified. The CAD report also shows which license plates were run and what officers responded to provide back up, so for large incidents CAD reports can help you identify exactly which officers were present at an incident.

Dash Cam video can be incredibly persuasive evidence. In fact, in Washington State a motorcyclists was awarded a $90,000 stipulated judgment against the state patrol after being arrested and the arresting State Trooper was caught on his dash camera telling the motorcyclists he would arrest him for “Ahhh yeah, I’ll think of something.”

Radio Traffic can be an important piece of evidence as it records all radio communications that take place between any involved law enforcement officers and dispatch during an incident. When requesting radio traffic it is important to request all radio traffic 15 minutes prior to the incident until 15 minutes after the incident. You never know what you will hear on the radio traffic. In one recording obtained via public disclosure you actually hear the officer tell dispatch that he was too scared to ask the bikers he had stopped for their identification.

How To Obtain The Records

There are two ways to obtain law enforcement records. For federal agencies such as the ATF or FBI, you will want to us a Freedom of Information Act request. The Freedom of Information Act (FOIA) is a law that keeps citizens in the know about their government. The Freedom of Information Act (FOIA) provides that any person has a right, enforceable in court, to obtain access to federal agency records, except to the extent that such records (or portions of them) are protected from public disclosure by one of nine exemptions or by one of three special law enforcement record exclusions. A FOIA request can be made for any agency record. Before sending a request to a federal agency, you should determine which agency is likely to have the records you are seeking.

For state or local agency records you will want to use a public records request. Each state has their own public records laws which govern the release of public records, similar to the FOIA. A simple internet search will allow you to obtain specifics of your states public records laws and request process.

In most cases you will simply write a letter requesting the specific records you seek. Some states allow you to request the records via phone and many state agencies have web pages where you can make a public records request online. Many of these laws are similar to FOIA, but the similarities notwithstanding, you must be alert to recognize where there are important differences. These distinctions may arise in regard to the breadth of coverage of a disclosure exemption or in the implementation of response deadlines. ALWAYS review the specific law and regulation you are working with before you proceed. Be aware that merely because your failure to comply with a particular requirement is not raised immediately at the administrative level does not ensure that the problem will not come back to haunt you should you seek judicial review.

Sample Public Records Request

Lakewood Police Department
1235 F.T.C Street
Lakewood, WA 98309

RECORDS REQUEST

Dear Records Request Officer:

On 2/27/10 at approximately 2:20pm, Unit #315 of the Lakewood Police Department was observed following and photographing a group of motorcyclists in the city of Lakewood.

Pursuant toRCW 42.17.250, the state open records act, I request access to and copies of:
- Any and all audio recordings, CAD Reports and or transcripts of any and all communications taking place between officers/agents involved.
-Any and all video recordings and or photographs obtained during the course of the above referenced investigation.
-Any and all officer reports, hand written notes, logs and voice recordings obtained during the course of the above referenced investigation.
-Detailed records showing any and all inquiries made to NCIC, WSIN, WSIS, Department of Licensing and Department of Corrections as part of the investigation referenced above, etc.
-Detailed report disclosing the final disposition of the information collected and the reason for the investigation.

I agree to pay reasonable duplication fees for the processing of this request.

If my request is denied in whole or part, I ask that you justify all deletions by reference to specific exemptions of the act.

Thank you for your assistance.

Sincerely,

[Your Name]

Alabama Public Records Law

The Alabama Public Records Law under Al. Code §36-25A-1 et seq. grants citizens the right to inspect and copy public writings. Pursuant to the statute, every citizen has a right to inspect and take a copy of any public writing of the state, except as otherwise expressly provided by statute.

Public Records LawAl. Code §36-25A-1 et seq.
Exempt: Banking, juvenile court, hospital and probation reports; identity of Medicaid recipients; reports of suspected disease cases; tax and financial statements.

Alaska Public Records Act

The Alaska Public Records Act states that most records in the possession of municipal (and state) government are subject to disclosure and this applies to municipalities. Citizens should presume that all records are public and subject to inspection by any member of the public. The only reason a record may be withheld from public disclosure is if a legal exception can be identified that authorizes withholding access.

Section AS 40.25.220(3) in the Alaska Public Records Act defines “public records” to mean “books, papers, files, accounts, writings, including drafts and memorializations of conversations, and other items, regardless of format or physical characteristics, that are developed or received by a public agency, or by a private contractor for a public agency, and that are preserved for their informational value or as evidence of the organization or operation of the public agency; ‘public records’ does not include proprietary software programs.”

Alaska Public Records ActA.S. §09.25.110 et seq.
Exempt: Juvenile, adoption, medical and public health; library lending; names of victims of certain types of sexual assault; and some law enforcement records.

Arizona Public Records Law

The Arizona Public Records Law has been in existence for more than 100 years and mandates that all public records be open to inspection by any person at all times during office hours. Public records include books, papers, maps, photographs or other documentary materials. Lake v. City of Phoenix recently established that digital meta-data, attached to files stored in any electronic form are considered part of that document and are thus subject to open records requests.

The Arizona Public Records Law does have some exceptions which include: student records, research records, donor information, or if the release of a record would constitute an invasion of personal privacy and that invasion outweighs the public’s right to know, of if the disclosure of a record is detrimental to the best interests of the state. Arizona law also requires individuals who are making a FOIA request for commercial purposes to state those purposes.

Public Records Law§39-121 et seq.
Exempt: Adoption records; disciplinary records of some professional groups; some medical records; some corrections department records; bank records; and trade secrets.

Arkansas Freedom of Information Act

The Arkansas Freedom of Information Act was established in 1967. It is a series of laws designed to guarantee that the public has access to public records of governmental bodies. Arkansas defines public records as "writings, recorded sounds, films, tapes, electronic or computer-based information, or data compilations in any medium required by law to be kept.” Originally, any citizen of the state of Arkansas could request records during normal business hours with the exception of individuals on trial and convicted felons who request information concerning the Department of Corrections. However, the restriction to only citizens of Arkansas has been lifted by recent federal court rulings.

Some exemptions to the Arkansas Freedom of Information Act are state tax records, medical/adoption/education records, archaeological and historical information, grand jury minutes, unpublished drafts of judicial opinions, undisclosed police investigations, information that would create unfair competition, identities of undercover law enforcement, computer security information, home addresses of non-elected employees, license examinations, military service discharge information, or records relevant to the security of public infrastructure.

Freedom of Information ActArk. Code Ann. §25-19-101 et seq.including §25-19-106.
Exempt: Income tax records; medical, scholastic and adoption records; historical and archeological files; on-going law enforcement investigations; working papers, competitive advantage, and personnel records; and identities of undercover law enforcement officers.

California Public Records Act

The California Public Records Act is a series of laws meant to guarantee that the public has access to public records of governmental bodies in California. In December of 2011, a Superior Court judge ruled that the California Assembly must also disclose budget records of individual lawmakers, after some California newspapers filed a lawsuit accusing legislators of flouting the state’s open records laws.

Public records in the California Public Records Act are defined as “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.” There is a separate category of “purely personal information” that, although it may be in the custody of a government agency, does not fall under the act. Statute 6255 states a catch all exemption, “The agency shall justify withholding any record by demonstrating that the record in question is exempt under express provisions of this chapter or that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.”

Anyone can request public documents in California, and a purpose does not have to be stated. The California Public Records Act does not regulate the use of records obtained from public agencies. One should allow 10 days for an agency to comply with a records request.

Public Records Act

Calif. Public Records Act: Gov't Code §6250-6268
Exempt: Law enforcement investigations: litigation; and proprietary business data and personal privacy.

Colorado Open Records Act

Until the Colorado Open Records Act was formalized in 1969, the ability of a citizen to gain access to public records was at the discretion of the custodian of the records. Public records include all writings that are made, maintained, kept or held by entities that are subject to the Colorado Open Records Act for use in the exercise of functions required or authorized by law or administrative rule or involving the receipt or expenditure of public funds. Keep in mind, this could mean that a record that is in the custody of an agency subject to theColorado Open Records Act would not itself, be subject to the Colorado Open Records Act if it was not made, maintained or kept for a governmental function or for an official reason.

There are several clear exemptions in the Colorado Open Records Act. The first statute exempts correspondence that is work product and all correspondence with constituents that clearly implies by its nature or content that the constituent expects that it is confidential.

Any person can request records and they are not required to state a purpose nor is the custodian of the records allowed to ask said person to provide a reason. Criminal justice record cannot be used for solicitation of business for monetary gain, but that is the only restriction on obtaining public records. Colorado Law stipulates a three day deadline for a response.

Open Records ActC.R.S. 24-72-201 et seq.

Exempt: At discretion of custodian: Records of investigations; test questions; details of research projects being conducted by the state; real estate appraisals; and motor vehicle license photographs. Custodian must Exempt: Medical data; personnel files; letters of reference; trade secrets; library records; addresses of public school children; and sexual harassment complaints under investigation.

Connecticut Freedom of Information Act

The Connecticut Freedom of Information Act, enacted in 1975, is a series of laws that guarantee the public access to public records of governmental bodies in Connecticut. Public records include any recorded data or information relating to the conduct of the public’s business prepared, owned, used, received or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract. This data or information can be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

Exemptions to the Connecticut Freedom of Information Act include:Preliminary drafts or notes whose disclosure does not outweigh the public benefit of withholding them

• Personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy"
• Records of law enforcement agencies which are still currently in pre-trial or trial phase or which would place victims or culprits in danger.
• Strategy or negotiation concerning pending litigation.
• Trade Secrets
• Financial information, freely given and not required by statute
• Licensing tests and statements of personal worth.
• Collective bargaining records and reports.
• Personal information including names and addresses of students enrolled in any school
• Adoption records
• Petitions
• Records of complaints
• Any information that would jeopardize security at correctional facilities, infrastructure, telecommunications or the security of any individuals
• Home addresses of anyone within the Address Confidentiality Program

Anyone may request public records and a purpose does not need to be stated. There are no restrictions on the use of the records and the allotted response time for Connecticut open requests is four days.

Freedom of Information Act Conn. Gen. Stat. § 1-200 et seq.

Exempt: Fifteen total exemptions including: Personnel, medical and some law enforcement files; juvenile; some witness and victim identification records; pending litigation files; and real estate documents.

The District of Columbia Freedom of Information Act

The District of Columbia Freedom of Information Act of1976 is a series of laws designed to guarantee that the public has access to the public records of governmental bodies in Washington, D.C. Everyone is entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees. Anyone can request public documents in Washington, D.C.

Delaware Freedom of Information Act

The Delaware Freedom of Information Act, first established in 1977, is a series of laws guaranteeing that the public has access to the public records of governmental bodies. Public records are defined as information of any kind, owned, made, used, retained, received, produced, composed, drafted or otherwise compiled or collected by any public body, relating in any way to public business, or in any way of public interest or in any way related to public purposes.