Mark K. Sorrell, Esq.
Office of the Attorney GeneralSeptember 8, 2010
2010 WL 4105478 (Miss.A.G.)
Office of the Attorney General
State of Mississippi
*1 Opinion No. 2010-00381
*1 September 8, 2010
Re: Public Records request for municipal law enforcement records
*1 Mark K. Sorrell, Esq.
*1 Attorney, City of Southaven
*1 8710 Northwest Drive
*1 Southaven, MS 38671
Dear Mr. Sorrell:
*1 Attorney General Jim Hood has received your request for an opinion and has assigned it to me for research and response.
Issues Presented
*1 We would note that, while your request letter was dated May 7, 2010, we did not receive your official opinion request until June 28, 2010. You inquire as to whether certain law enforcement records are subject to inspection and copying in accordance with the Public Records Request Act, found at Mississippi Code Annotated Section 25-61-1 et seq. Specifically, you ask the following:
*1 I am writing to request an opinion as to whether the records requested in the attached letter dated April 7, 2010, would be considered public records and subject to inspection and copying by the requesting party.
*1 The letter attached provided the following:
*1 Pursuant to Miss. Code Ann. Section 25-61-5, I write to request access to inspect and copy the following public records:
*1 (i) Any and all policy and/or procedures manual(s) or similar records for the Southaven Police Department which were in effect on June 20 and June 21, 2009 as well as any additional policy or procedure manual which is currently in effect;
*1 (ii) Any and all documents or records which relate to the Southaven Police Department or City of Southaven's policy or procedures related to the use of any chemical agent during any arrest which were in effect on June 20 and/or June 21, 2009, as well as any additional policy or procedure manual concerning the same which is currently in effect;
*1 (iii) Any and all documents or records relating to officer training with respect to the use of any chemical agent during an arrest which existed on June 20 and/or June 21, 2009, as well as any document or records produced or maintained thereafter to present;
*1 (iv) Any and all documents and records pertaining to any complaints (criminal or civil) made against Officer Keith Goff and/or Ben Bonum;
* * *
*1 To be clear in my request, I am not requesting any investigative reports created or maintained by the City of Southaven Police Department or any other items listed in Miss. Code Ann. Section 25-61-3(f)(i) through (viii).
Response
*1 The Mississippi Public Records Act of 1983, found at Mississippi Code Annotated Section 25-61-1 et seq., proclaims public records as public property and requires access to those records to the public, unless they are specifically exempted by statute. MS AG Op., Ivy (Feb. 13, 2009).
*1 The term “public records” is defined in Section 25-61-3(b) as:
*1 All books, records, papers, accounts, letters, maps, photographs, films, cards, tapes, recordings or reproductions thereof, and any other documentary materials, regardless of physical form or characteristics, having been used, being in use, or prepared, possessor retained for use in the conduct, transaction or performance of any business, transaction, work, duty or function of any public body or required to be maintained by any public body.
*2 Records in the possession of the municipal police department are public records pursuant to Section 25-61-1 et seq. Historically, Section 45-29-1 and 45-29-3 exempted certain investigatory and criminal justice records and records of law enforcement agencies. However, these statutory provisions were repealed as of July 1, 2008 and substituted with the exemptions for law enforcement records currently found at Sections 25-61-12(2) and 25-61-3(f). Chapter 392, Laws of 2008.
*2 Section 25-61-12(2) provides that investigative reports, when in the possession of a law enforcement agency, shall be exempt, but specifically declares an “incident report” to be a public record that is not exempt from public disclosure. Pursuant to Section 25-61-3(f), the definition of a investigative report is extremely broad and generally covers anything that is not an “incident report”:
*2 “Investigative report” means records of a law enforcement agency containing information beyond the scope of the matters contained on an incident report, and generally will include, but not be limited to, the following matters if beyond the scope of the matters contained in the incident report:
*2 (i) Records that are compiled in the process of detecting and investigating any unlawful activity or alleged unlawful activity, the disclosure of which would harm the investigation which may include crime scene reports and demonstrative evidence;
*2 (ii) Records that would reveal the identity of informants and/or witnesses;
*2 (iii) Records that would prematurely release information that would impede the public body's enforcement, investigative or detection efforts;
*2 (iv) Records that would disclose investigatory techniques and/or result of investigative techniques;
*2 (v) Records that would deprive a person of a right to a fair trial or an impartial adjudication
*2 (vi) Records that would endanger the life or safety of a public official or law enforcement personnel, or confidential informants or witnesses;
*2 (vii) Records pertaining to quality control or PEER review activities or
*2 (viii) Records that would impede or jeopardize a prosecutor's ability to prosecute the alleged offense.
*2 (Emphasis added).
*2 An “incident report” is defined in Section 25-61-3(e) as:
*2 A narrative description, if such narrative description exists an if such narrative description does not contain investigative information, of an alleged offense, and at a minimum shall include the name and identification of each person charged with and arrested for the alleged offense, the time, date and location of the alleged offense, and the property involved, to the extent this information known.
*2 Whether the records constitute an “investigative report” or an “incident report” is a question of fact which must be answered on a case by basis. Documents or records relating to officer training and detailing how chemical agents are to be used during an arrest specifically may be considered to be such “investigative reports” as are contemplated in Section 25-61-3(f)(iv) and (vi). For example, written procedures to be followed by officers when escorting the Governor or other officials, may be “records that would endanger the life or safety of a public official or law enforcement personnel and would, thus, be exempt under Section 25-61-3(f). The public body must look at each document to see if it is exempt.
*3 If our office may be of further assistance, please advise.
2010 WL 4105478 (Miss.A.G.)
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