Opinion No. 1988-076

Full title: Opinion No. 1988-076

Court: Attorney General of Arkansas — Opinion

Date published: Mar 16, 1988

Opinion No. 1988-076 (Ops.Ark.Atty.Gen. Mar. 16, 1988)

Opinion

March 16, 1988

STEVE CLARK, Attorney General

Colonel Tommy Goodwin, Director Arkansas State Police P.O. Box 5901 Little Rock, AR 72215

Dear Colonel Goodwin:

This is in response to your request for an opinion regarding the Arkansas Freedom of Information Act (FOIA), codified at A.C.A. 25-19-101, et seq. Specifically, you wish to know if the records of the investigation of Little Rock Police Chief Jess F. "Doc" Hale are subject to release under the FOIA?

The answer to your question is yes.

As you know, records of an "undisclosed investigation by law enforcement agencies of suspected criminal activity" are exempt from public disclosure under A.C.A. 25-19-105(b)(6) (1987). In City of Fayetteville v. James Kenneth Rose, 294 Ark. 468 (1988), the majority wrote:

. . . 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 Firearms 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.

While the court does refer to the investigation as something that "everyone knew about . . .", Rose, 294 Ark. at 469, the above language indicates that the court also takes into consideration the fact that the investigations by local and federal law enforcement agencies had been completed and the case had been turned over for prosecution. It is clear that these factors persuaded the court in reaching its decision.

The facts presented in the case at hand are similar to those in Rose. The law enforcement agency has completed its investigation and deems the case closed. Additionally, the prosecuting attorney has filed criminal charges based upon the investigative records. I believe the existence of these circumstances is vital to reaching the conclusion that the investigation is complete, and therefore open to public inspection.