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IPRA Guide

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Law Enforcement Records

 

The Law

Law enforcement records that reveal confidential sources, methods, information or individuals accused but not charged with a crime. Law enforcement records include evidence in any form received or compiled in connection with any criminal investigation or prosecution by any law enforcement or prosecuting agency, including inactive matters or closed investigations to the extent that they contain the information listed above.

 

Commentary

This exception does not protect all records held by a law enforcement agency. The exception applies only to records that are (1) created or used by a law enforcement agency in connection with a criminal investigation or prosecution and (2) reveal confidential sources, methods, information or individuals accused but not charged with a crime.

Generally, the records that fall within the exception’s protection are those that, if made public, would seriously interfere with the effectiveness of a criminal investigation or prosecution. Examples of records that typically fall within the exception’s protection include:

  • records that detail the methods and procedures a law enforcement agency follows when investigating crimes;
  • evidence and other records that, if disclosed, would alert potential defendants to destroy evidence, coordinate stories or flee the jurisdiction;
  • witness testimony that is crucial to a criminal investigation and prosecution; and
  • records containing information that might unfairly cast suspicion on and invade the privacy of innocent people or endanger a person’s life.

Whether a law enforcement agency can deny inspection of a particular record may depend on the phase of the criminal investigation or prosecution. For example, the name of a suspect will no longer be covered by the exception if the person is charged with a crime. However, if the target of an investigation or a suspect is not charged, that person’s identity can remain confidential even after the investigation is closed.

Example 12:
During the investigation of a series of armed bank robberies, the state police question a number of suspects, including Mr. Zot. Mr. Zot becomes the target of a grand jury, but is not indicted. Eventually a Mr. Zinc is arrested for the robbery, and is tried and convicted. The state police close their file. One year later, an author writing a biography of Mr. Zot requests a copy of the closed file. The custodian for state police records may provide the file after removing or blocking out material pertaining to Mr. Zot and other information protected by the law enforcement records exception.

Example 13:
A village police chief is questioned by the district attorney’s office. The reporter for the local newspaper finds out about the interview and contacts one of her sources in the police department. The next day, the headline in the newspaper reads: “Police Chief Accused of Mishandling Public Funds.” The reporter decides to write a follow-up article and contacts the police department to request copies of the police chief’s expense records for out-of-town trips. The records custodian for the police department cannot deny access to the records merely because the headline in the newspaper accuses the police chief of a crime. However, the records custodian may deny inspection on grounds that the requested records “reveal … individuals accused but not charged with a crime” if the police chief has been designated a suspect or has otherwise been accused (but not charged) by law enforcement officials.

Example 14:
Ms. Cat telephones the county animal control department to complain that her neighbor, Mr. Canine, is allowing his dog to run loose in the neighborhood. It is a misdemeanor for a dog to be outside its owner’s property unless the dog is on a leash. The department employee who answers the call makes a notation of Ms. Cat’s name and Mr. Canine’s address, and sends an animal control officer to investigate. The next day, Mr. Canine asks the animal control department for a copy of the department’s records reflecting complaints about his dog. Complaints to the animal control department about dogs do not qualify as protected law enforcement records because they generally do not reveal confidential sources, methods, information or individuals accused but not charged with a crime. Unless another law protects records of complaints to the animal control department from disclosure, the department must give Mr. Canine access to the notation of Ms. Cat’s complaint.

Commentary

The law enforcement records exception does not protect information subject to disclosure under the Arrest Record Information Act (NMSA 1978, §§ 29-10-1 to -8). This includes records identifying a person who has been arrested. In addition, information contained in posters, announcements or lists for identifying or apprehending fugitives or wanted persons; court records of public judicial proceedings; records of traffic offenses and accident reports; and original records of entry compiled chronologically, such as police blotters, are required to be available for public inspection.

Police blotters and other original records of entry that the Arrest Record Information Act makes public are permanent, chronological records of arrests, detentions and other events reported to and kept by police departments and other law enforcement agencies. Typically, a police blotter includes the name, physical description, place and date of birth, address and occupation of persons arrested, the time and place of arrest, the offenses for which the individuals were arrested or detained, and the name of the arresting officer. Other examples of original records of entry besides police blotters are radio logs, dispatch logs, desk logs, offense logs, 911 tapes and other records of incidents reported to a law enforcement agency that are organized chronologically.

Example 15:
The director of a city parks department is arrested for allegedly leaving the scene of an accident. A reporter for the local television news program writes to the police department and requests a copy of the 911 tapes of requests for emergency services on the night of the incident. The 911 tapes are public records, and they must be made available to the reporter.

Example 16:
Members of the news media make a request to inspect records of the sheriff’s department concerning a theft at a grocery store committed by three juveniles who were arrested by the department. There is no law protecting arrest records concerning juveniles. Thus, they must be made available for inspection and copying to the same extent as adult arrest records.

Example 17:
Peace officers sent to the scene of an alleged crime are required to fill out a standard incident form. The form is composed of two parts. The first part includes basic information about the incident, including a description of the offense and type of injury or loss; information about the victim and suspect, including names, addresses and telephone numbers; and the identity of the reporting officer. The second part may include initial investigatory information, such as the method used to commit the crime; potential location of the suspect; witness interviews; and evidence gathered at the scene. Because the forms are not kept in chronological order, they do not qualify as original records of entry made public by the Arrest Record Information Act. Nevertheless, except to the extent that they qualify as protected law enforcement records under the Inspection of Public Records Act, the forms must be made available to the public. Thus, the law enforcement agency generally makes the first part of the form, which contains information like that typically included in a police blotter or other incident log, available for public inspection. Before allowing public inspection of the second part of the form, the agency blocks out information that reveals confidential sources, methods, information or persons accused but not charged or arrested in connection with a crime, and evidence received or compiled in connection with the criminal investigation.

Example 18:
A deputy sheriff is involved in an accident that results in fatalities. The accident occurs while the deputy is in pursuit of a motorist suspected of driving while intoxicated. The deputy is not accused or charged with a crime and remains on duty. The sheriff’s department maintains incident reports in chronological order. A reporter asks for a copy of the incident report on the accident involving the deputy. The request is denied on grounds that the case is subject to an “ongoing investigation.” However, the law enforcement records exception does not provide blanket protection from inspection for “ongoing investigations.” In this case, incident reports are compiled chronologically and appear to qualify as “original records of entry” that are public under the Arrest Record Information Act. In addition, that Act designates “records of traffic offenses and accident reports” as public information. Under these circumstances, the incident report on the accident involving the deputy must be disclosed.

Commentary 

In exceptional circumstances, information contained in an original record of entry or similar record might be redacted or blocked out before the record is disclosed in response to a public records request. Information may be withheld, however, only with substantial justification. For example, if a law enforcement agency knew or reasonably suspected that revealing a specific victim’s address would put the victim’s life in danger, then the agency could keep the address confidential. In addition, victims of crimes specified in Article II, Section 24 of the New Mexico Constitution and in the Victims of Crimes Act (NMSA 1978, §§ 31- 26-1 to -14), including murder, rape and other serious criminal offenses, have certain rights, including the right to have their dignity and privacy respected. The rights conferred under these provisions take effect when an individual is formally charged for allegedly committing one of the specified crimes against a victim. Once a defendant has been charged with the specified crimes, these provisions may provide law enforcement agencies, criminal prosecutors and judges with justification for denying public access to those portions of records that identify the victims of those crimes. The rights conferred under the constitution and the Victims of Crimes Act end upon final disposition of the court proceedings.