Herald Co. v. McNeal, 76-212C(1).

• Decision Date: 11 March 1981
• Docket Number: No. 76-212C(1).,76-212C(1).
• Citation: 511 F. Supp. 269
• Parties: The HERALD COMPANY, a New York corporation, doing business in Missouri as Globe Democrat Publishing Co., Plaintiff, v. Theodore McNEAL, Edward J. Walsh, Jr., George T. Mehan, Jr., Mrs. John W. Seddon, John H. Poelker, Mayor of the City of St. Louis, Defendants.
• Court: U.S. District Court — Eastern District of Missouri

511 F. Supp. 269

The HERALD COMPANY, a New York corporation, doing business in Missouri as Globe Democrat Publishing Co., Plaintiff, v. Theodore McNEAL, Edward J. Walsh, Jr., George T. Mehan, Jr., Mrs. John W. Seddon, John H. Poelker, Mayor of the City of St. Louis, Defendants.

No. 76-212C(1).

United States District Court, E. D. Missouri, E. D.

March 11, 1981.

Lon Hocker, Jr., Ziercher, Hocker, Tzinberg, Human & Michenfelder, Clayton, Mo., W. Munro Roberts, Jr., St. Louis, Mo., for plaintiff.

John H. Lashly, Kenneth C. Brostron, Lashly, Caruthers, Thies, Rava & Hamel, St. Louis, Mo., for defendants.

Before FLOYD R. GIBSON, Senior Circuit Judge, WANGELIN, Chief Judge, and NANGLE, District Judge.

MEMORANDUM

This matter is before the Court upon defendants' motion for summary judgment. For the reasons stated below, defendants' motion will be granted.

Because this suit was filed on March 9, 1976 and asked for an injunction against the enforcement of a state statute, this Court convened a three judge panel to hear the cause under the former Three Judge Court Act, 28 U.S.C. § 2281 (repealed by Act August 12, 1976, P.L. 94-381, §§ 1, 2, 90 Stat. 1119; see § 7 for savings clause).

This controversy surrounds an action by the publisher of the St. Louis Globe Democrat to enjoin the Commissioners of the Board of Police of the City of St. Louis from denying access to arrest records and police reports, and to challenge the constitutionality of the Missouri statutes which limit press and public access to these records and reports.

Missouri Statute Chapter 109 governs the custody, preservation, transcribing and management of public records. As a subsection to this Chapter, §§ 109.180 (RSMo 1969) provides, in part, that:

except as otherwise provided by law, all state, county and municipal records kept pursuant to statute or ordinance shall at all times be open for a personal inspection by any citizen of Missouri, and those in charge of the records shall not refuse a privilege to any citizen....

The Police Commissioners of the Board of Police of the City of St. Louis and its agent officers make and maintain arrest registers and police records. These arrest records are "records" within the meaning of the Missouri Sunshine Law, § 610.010 et seq. (RSMo 1973). An amendment to the Missouri Sunshine Law, §§ 610.100 — 610.115 (RSMo 1973) (commonly known as the Bank's Amendment), allows closure and/or expungement of arrest records to all persons, except the arrestee, under certain conditions.

Counts 1 and 2 of plaintiff's complaint allege that the denial of access to these records in police custody is illegal, and demand their release. Count 3 challenges the constitutionality of the Bank's Amendment, and seeks release of those records closed pursuant to that amendment.

Count 1.

The records sought in Count 1 are identified by plaintiff as an arrest register, defined as "arrest record(s) as to each arrest, containing identification of the person arrested, the date, time and booking officer, the charge, the release, bonding, manner of release...."

After the filing of this complaint on March 9, 1976, the Board of Commissioners commenced new procedures which have made available to the plaintiff and general public the arrest registers, except to the extent that these records are closed/expunged pursuant to §§ 610.100 and 610.105. A press release issued on March 18, 1976 by Colonel Theodore D. McNeal, President of the St. Louis Board of Police Commissioners, announced a revised policy whereby the Board "will make available an arrest register for a period up to thirty days from the date of arrest, even though no charge has been filed against the individual involved."

A change in circumstances between the time a case or controversy originates and the time when a court passes upon the merits of the argument, may result in a moot cause. See Tennessee Gas Pipeline Co. v. Federal Power Commission, 606 F.2d 1373 (D.C.Cir.1979) and Quincy Oil, Inc. v. Federal Energy Administration, 472 F.Supp. 1233 (D.Mass.1979). Such is the instance now before us. This request for release of arrest registers specified in Count 1 has been granted and the Police Board policy affording the opportunity for their inspection has been in existence for over four years. Therefore, defendants' motion for summary judgment as to Count 1 will be granted.

Count 2.

The records sought in Count 2 are identified as police reports, defined by plaintiff as records made and maintained "as to each arrest, disturbance of the peace, fire, or other transactions conducted pursuant to a duty imposed upon them by § 84.090 (RSMo 1969) a record by the police officer or officers making the arrest, preserving the peace, or otherwise conducting the transactions...."

The police reports consist of two informational components:

(1) information concerning records of incidents reported to police, but which do not result in an arrest, and

(2) information relating to reports of incidents in which an arrest has resulted.

The investigation reports contain confidential material such as identities of wanted individuals. In its suggestions in support of a temporary injunction, filed with the Court on April 12, 1976, the plaintiff recognized that some of the police reports contained such investigative and speculative materials, and furthermore stated it did not seek such information. Therefore, in substance plaintiff only seeks such information as is listed on the arrest registers. While the plaintiff suggests that the police reports should be open for public inspection, with modifications made to exclude confidential, speculative or investigative material, this request has already been complied with. This information is and has, in effect, already been made available to plaintiff and the general public since April of 1976 in the form of arrest registers and "Daily Crime and Happening Reports". The request in Count 2, then, is in the same posture as that of Count 1 — moot. Declining an invitation to rule upon this moot question, the defendants' motion to grant summary judgment on Count 2 will be granted.

Count 3.

Count 3 of plaintiff's complaint is a broad attack upon the constitutionality of the Bank's Amendment, §§ 610.100—610.115, (RSMo 1973).¹ Plaintiff's initial complaint is that the closure and expungement of arrest records is a violation of the free speech and free press clauses of the First and Fourteenth Amendments to the United States Constitution. Defendants argue that plaintiff lacks standing to raise this issue. This Court cannot agree. A similar argument was rejected in United States v. Cianfrani, 573 F.2d 835 (3rd Cir. 1978). In that case, media representatives sought to challenge the district court's closure of pre-trial proceedings. The intervenors therein were in the same position as plaintiff in this case — they sought to obtain information which was kept from the public.

In deciding that the intervenors possessed the requisite standing to challenge the closure order, the court held that their allegations that they were denied access to the pre-trial hearing and the records thereof stated the constitutionally required "injury in fact." Id. at 845. Likewise, the court held that the challenged practices harmed the intervenors, and that the requested relief would benefit them. Finally, the court rejected the argument, now pressed by defendants herein, that plaintiff lacks standing because it alleges no more than an injury that is suffered by the public at large.

So long as the "injury in fact" alleged by each intervenor is a "distinct and palpable injury to himself," standing should not be denied "even if it is an injury shared by a large class of other possible litigants." Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975). E. g., United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 683-90, 93 S.Ct. 2405, 2413-17, 37 L.Ed.2d 254 (1973). We believe that intervenors have alleged injuries beyond generalized grievances, and that they state sufficiently such demonstrable, particularized injury to justify assertion of jurisdiction by this court.

Id., at 845-46. The same is true in the instant case.

The fact that plaintiff's constitutional claims might ultimately be found to be without merit is irrelevant to the standing inquiry. Such a determination goes to the substantive merits of the claims, not to plaintiff's standing to assert such claims. Cf. Herald Co. v. McNeal, 553 F.2d 1125, 1131 (8th Cir. 1977).

The gist of plaintiff's First Amendment claim is that the press and the public have a constitutional right of access to the information which is closed or expunged pursuant to the Bank's Amendment. This Court can find no such right of access in the Constitution.

It should be initially pointed out what is not involved herein. The information which plaintiff seeks is not totally shielded from public view. The information is freely available to the press and the public prior to the time that the Bank's Amendment mandates closure or expungement. During that period plaintiff presumably is free to inspect the records at will. Rather, what is involved herein is the legislative determination that at some point the right of privacy of an individual arrested but not charged, or charged but not convicted, outweighs the right of the public and the press to access to this information.

It is well settled that the press possesses no greater right of access to government-held information than the public generally. Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974); Saxbe v. Washington Post Co., 417 U.S. 843, 94 S.Ct. 2811, 41 L.Ed.2d 514 (1974); Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). The law is not so clear, however, as to the extent to which the government may limit access by both the public and the press to information within the government's...