Arkansas Gazette Co. v. Goodwin

• Decision Date: 21 December 1990
• Docket Number: No. 90-217,90-217
• Citation: 304 Ark. 204,801 S.W.2d 284
• Parties: , 18 Media L. Rep. 1576 ARKANSAS GAZETTE COMPANY and Max Brantley, Appellants, v. Thomas L. GOODWIN, et al., Appellees.
• Court: Arkansas Supreme Court

Page 284

801 S.W.2d 284

304 Ark. 204, 18 Media L. Rep. 1576

ARKANSAS GAZETTE COMPANY and Max Brantley, Appellants, v. Thomas L. GOODWIN, et al., Appellees.

No. 90-217.

Supreme Court of Arkansas.

Dec. 21, 1990.

Phillip Carroll, Michael D. Booker, James Hunter Birch, Little Rock, for appellants.

Chris C. Piazza, Pros. Atty., Little Rock, for appellees.

HOLT, Chief Justice.

This is a Freedom of Information Act case. Ark.Code Ann. § 25-19-105 (1987). The issue is whether the records of an investigation of Steve Clark, conducted by the Arkansas State Police and other investigative agencies, should be closed to the public. The trial court held that the investigative file was closed to the public until after Clark's trial. It specifically found in its order that continued publicity would impair the court's obligation to provide Clark with a fair and impartial trial by a jury. We agree.

On July 11, 1990, appellant Max Brantley, Assistant Managing Editor of the Arkansas Gazette, requested the investigative file concerning Steve Clark from appellee Colonel Tommy Goodwin, Director of the Arkansas State Police, and appellee Christopher C. Piazza, Prosecuting Attorney for the Sixth Judicial District. The request was initially denied by Colonel Goodwin. Brantley was subsequently notified by the prosecuting attorney's office that it would make the requested records available on July 13, 1990, at 10 a.m. for inspection at the prosecutor's office. Criminal charges were filed against Clark, and he, simultaneously, filed a motion seeking to have the investigative file protected from disclosure and ordered sealed. Appellant Arkansas Gazette Company, was informed by the prosecutor's office that it intended to fully support Clark's motion.

As a result, the appellants thereafter filed their petition for judicial review, requesting that the trial court conduct a hearing to determine if the investigative files of the state police were public records subject to public disclosure under the Arkansas Freedom of Information Act (FOIA). A hearing was conducted on the appellants' petition on July 12, and the trial court denied the petition. The court's written order of July 13 recited in part that all investigative agency files regarding Clark were to be closed until a trial of Clark was held. The appellants filed a petition to modify, asking the court to modify its order to conform to the action which was actually announced by the court from the bench at the conclusion of the hearing on the appellants' petition for review on July 12. The petition to modify was denied.

The appellants argue the investigative file is a public record under the FOIA and there are no applicable exceptions which would prevent its disclosure. They further contend the trial court erred in expanding its order to close the files of all investigative agencies, including the legislative audit, until after Clark's trial.

The appellants' petition for review was assigned to Judge Perry V. Whitmore, who was also the assigned trial judge in Clark's criminal prosecution. On July 12, the parties agreed to consider both the appellants' petition for review and Clark's motion in the criminal proceeding. The record reflects the parties argued their respective positions before Judge Whitmore primarily on the basis of whether or not the release of the investigative file would deny Clark's due process rights to a fair trial. The appellants contended at the hearing that the public interest in having access to the file outweighed Clark's right to a fair trial. Appellee Piazza relied upon Rule 3.8 of the Model Rules of Professional Conduct (1985), for the proposition that, as a prosecutor, he could not disseminate the requested file to the appellants. The trial court denied the appellants' petition on the basis that continued publicity would impair its obligation to provide Clark a fair trial by an impartial jury.

The Due Process Clause of the fourteenth amendment guarantees the right of a fair trial by a panel of impartial jurors to the criminally accused in state criminal prosecutions. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). If, due to pretrial publicity, an impartial jury cannot be seated to try a defendant, his right to a fair trial is violated. Anderson v. State, 278 Ark. 171, 644 S.W.2d 278 (1983); Swindler v. State, 267 Ark. 418, 592 S.W.2d 91 (1979).

In this case, the high level of publicity and media attention threatened to interfere with Clark's right to a fair trial. In Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979), the Court stated that, in order to safeguard the due process rights of the accused, a trial judge has an affirmative duty to minimize the effects of prejudicial pretrial publicity, and he may take protective measures even when they are not strictly and inescapably necessary. See also Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966).

In discharging his duty, the trial court weighed Clark's constitutional right to a fair trial against the public's right to access to public records as provided for in the FOIA and, in exercising his authority under Ark.Code Ann. § 29-19-105(b)(8) (Supp.1989), concluded a reasonable protective measure was warranted by the circumstances: the closing of the investigation files of the state police and the files of all investigative agencies, including the legislative audit.

This court has previously noted, "[i]f the question is whether a defendant can or cannot receive a fair trial, as required by the fourteenth amendment to the United States Constitution, then conflicting law must give way to a defendant's right to due process." Anderson v. State, supra. Suffice it to say, FOIA must give way in this instance to "due process."

Affirmed.

TURNER and PRICE, JJ., concur.

GLAZE, J., dissents.

PRICE, Justice, concurring.

The result reached by the majority is correct. It does not, however, address other issues argued on appeal concerning the Arkansas Freedom of Information Act (FOIA). The first issue concerns the application of the FOIA to the investigative file of the state police. In order for a record to be subject to the FOIA and available to the public, it must be possessed by an entity covered by the act, fall within the act's definition of a public record, and not be exempted by the act or other statutes. Legislative Joint Auditing Committee v. Woosley, 291 Ark. 89, 722 S.W.2d 581 (1987). This court has said on many occasions that the FOIA should be broadly construed in favor of disclosure, and exemptions construed narrowly in order to counterbalance the self-protective instincts of the governmental bureaucracy. McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989).

In the instant case the appellees contend the investigative file at issue is not a public record. The state police investigative file clearly constitutes a public record under the FOIA and as defined in Ark.Code Ann. § 25-19-103(1) (1987). In the alternative, the appellees argue the file falls within two of the exemptions enumerated in Ark.Code Ann. § 25-19-105(b)(6), (8) (Supp.1989). I agree.

The law enforcement exemption in § 25-19-105(b)(6) provides that "undisclosed investigations by law enforcement agencies of suspected criminal activity" are not subject to public inspection. This exemption has been construed by this court in several opinions. In City of Fayetteville v. Rose, 294 Ark. 468, 743 S.W.2d 817 (1988), we held that information contained in investigations conducted by the City of Fayetteville police and fire departments was not undisclosed and thus not exempt from release. We said:

There was no 'undisclosed investigation.' Everyone knew about it. The Fire and Police Departments of Fayetteville had finished their investigation. The federal Bureau of Alcohol, Tobacco, and Fire Arms had investigated the matter, turned its report over to the U.S. attorney's office, and a federal grand jury had returned an indictment. No reading of the Freedom of Information Act consistent with our decisions could support a finding that there was an 'undisclosed investigation' involved. Therefore, the records held by the fire and police departments are subject to disclosure under the Freedom of Information Act.

We stated in McCambridge v. City of Little Rock, supra, that "[t]he only purpose of the exemption, as written, is to prevent interference with ongoing investigations." We held there that photographs of the crime scene and a pathologist's photograph made in connection with a police investigation were to be released in accordance with the FOIA. We also held the police file was subject to release despite the fact that it allegedly contained statements from confidential informants.

The investigative files at issue in City of Fayetteville and McCambridge had to do with completed police investigations. The opposite situation was presented in Martin v. Musteen, City of Rogers and Clinger, 303 Ark. 656, 799 S.W.2d 540 (1990). Pinson (Martin was Pinson's attorney and the appellant) was charged with drug violations and his attorney requested the police investigation file with respect to the charges against Pinson. Following the police chief's refusal to release the file, Pinson's attorney brought action pursuant to the FOIA. At the hearing, the police chief characterized the investigation as an "ongoing" one. The prosecutor testified that Pinson's case was part of a larger investigation and that it would continue for some time. We held that if a law enforcement investigation remained open and ongoing, it was meant to be protected as undisclosed under the FOIA.

In the case at bar the appellants contend the state police investigative file was not exempt under the law enforcement exemption. I disagree. It is my opinion that a law enforcement agency's file is not disclosed merely because the press has published articles concerning the matter or...