Open & Shut: a statewide public records audit

Police less likely to open records

Police agencies around Arizona refused nearly half the time to hand over public records dealing with crimes in a test of how local government agencies follow the state's Public Records Law.

The landmark project, led by Associated Press Managing Editors of Arizona, sent auditors from media organizations to 187 police departments, sheriff's departments, planning and zoning offices, and school district offices.

While school districts and planning and zoning offices complied with almost every request for basic public records - though grudgingly at times - auditors often faced resistance when requesting records from police agencies.

In one city, police logged a "suspicious person" report and ran a computer check to see if an auditor was wanted by police. In another, an auditor was taken into a private room by a police chief wanting to know the purpose of the visit. One auditor was told initially that obtaining police records might cost $1,000.

These responses came despite the clear direction provided to public officials in the 101-year-old Arizona Public Records Law: "Public records and other matters in the custody of any officer shall be open to inspection by any person at all times during office hours."

Of the 63 law enforcement agencies audited during the late October visits, 28 failed to comply with a two-part request: (1) provide a detailed list of calls to which officers responded during a 48-hour period and (2) provide a copy of a report on a simple property crime from that list.

Auditors visited every county in Arizona, requesting records in all county seats, nearly every city of 5,000 or more and some smaller cities. The goal was to find out how an ordinary citizen would be treated when seeking records.

To do this, auditors were instructed to identify themselves by name but not disclose their employer or why they wanted the documents.

In addition to seeking police records, auditors asked for expense records for school superintendents and zoning requests from city and county offices. Each document sought provides basic information about what's happening in a community and how taxpayers' dollars are spent.

The audit comes at a time when government increasingly is limiting public access to information. Open-records advocates fear the push for more privacy will result in less openness in government.

"All too frequently the public finds delay and resistance when accommodation and disclosure are in order," said David Bodney, a Phoenix attorney who represents several news organizations.

Many auditors had to cajole employees, cite the Public Records Law, endure sometimes-hostile questioning from public officials and write follow-up letters for documents that had already been requested. Here are examples and the responses they received:

* In St. Johns, an officer filed a "suspicious person" report on an Associated Press reporter and ran his name through a national crime-information computer system looking for outstanding warrants. The report, which noted that the auditor also went to three other local government agencies, was forwarded to the police chief for review.

* In Safford, an Arizona Daily Star reporter was asked into an interview room by Police Chief Dennis Thompson, who wanted him to confide his reason for wanting the records. The reporter declined but received the records two weeks later.

* In Bullhead City, a Police Department employee initially told a reporter from the Mohave Valley Daily News that she'd have to pay as much as $1,000 to receive a list of incidents. Later, after speaking with Police Chief Rodney Head, the auditor received the documents at a cost of $10. Head said the $1,000 estimate must have resulted from a misunderstanding.

At some law enforcement offices, auditors were told they could receive information about a particular incident if they could cite one, but couldn't look at an entire list of incidents in that community. Some refused to provide locations where incidents occurred. Either response was considered noncompliance for purposes of the audit.

Auditors also visited the main jail in every county, seeking a list of those in custody. Results were similar to those at police stations and sheriff's departments: Eight provided the information; seven didn't.

Similar audits in other states in recent years found that police are the least likely to release public records. Part of the reason is a culture of secrecy in law enforcement, said Tom O'Hara, president of the National Freedom of Information Coalition and managing editor of The Plain Dealer in Cleveland.

"I think the police just feel that a lot of that information is nobody's business but theirs," O'Hara said.

There are notable exceptions. The Camp Verde Marshal's Office promptly gathered the available records and carried through on its promise to mail an incident report that wasn't yet completed.

"We believe we're supposed to," Marshal John Wischmeyer said later. "It's an open state, so we give out the information according to statute."

In Thatcher, then-Police Chief Gary Cleland said he was glad the request was made because no one had ever asked him for a list of calls to which officers responded.

He also asked an auditor if he could photocopy the Public Records Law she carried because he wanted to see whether it had changed.

In Glendale, where an auditor didn't receive records, Police Chief David Dobrotka said his department didn't intend to deny access. He said he couldn't recall anyone ever asking for them before.

The audit prompted Glendale police to begin printing the list of calls each day so that the public can see it, Dobrotka said.

In interviews, police officials generally didn't challenge how the audit was conducted. But police often cited privacy concerns and the sensitivity of open investigations as their reasons for refusals.

St. Johns Police Chief Jim Zieler said his officer would have released the records if the auditor hadn't been "demanding" in his request and had waited until the following day for the chief to review the records and remove sensitive information.

Safford Police Chief Thompson defended his decision to ask an auditor into a private room and ask why he wanted the documents.

Thompson acknowledged that people aren't required to say why they want public records but said the auditor raised his curiosity by refusing to answer the question.

"I have never in 26 years had anybody do that," Thompson said. "It was intimidating to me. What's this guy trying to do? Maybe the cop in me came out."

Cottonwood's Lt. Keith Porter said he refused to release the records without a court order because he suspected an auditor might be a burglar alarm vendor trying to solicit business from homes that had reported false alarms. He added that police didn't have time to edit out sensitive information about ongoing investigations.

"We do go out of our way not to jeopardize ongoing investigations, but we don't go out of our way to keep the public from knowing our business," Porter said.

That's exactly what agencies are doing if they discourage citizens from seeing records or say they're too busy, said Harry Hammit, a Lynchburg, Va., attorney and freedom-of-information expert who edits the Access Reports Web site.

"If you're a relatively unsophisticated requester, and the police department says, 'That's confidential,' I think nine out of 10 people are going to turn away and say, 'OK, I don't have a right to see that.' And that seriously diminishes the right of access," Hammit said.

Bodney, the attorney for Arizona news organizations, said government sometimes has legitimate reasons for withholding information, such as protecting a confidential informant in a police investigation. But he said there is little legal justification for routinely withholding lists of incidents to which officers respond.

Tim Delaney of Phoenix, president of the nonprofit Center for Leadership, Ethics and Public Service, who advises government officials on public records law, said most statewide officials and leaders in local governments are aware of public records law. But employees who are approached with document requests may not have had training in public records law, he said.

"We need to always remember that the government belongs to the people and the records belong to the people," Delaney said.