AG's opinion would restrict public's access to information

Tim Leeds

Havre Daily News

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The Montana Attorney General's office Monday issued a draft opinion that would allow police to withhold the names of crime victims if victims made that request.

The office said it will issue a formal opinion even though the Havre Daily News, joined by news organizations across the state, has filed a lawsuit asking a state District Court judge to clarify what public information should be included in initial incident reports by law enforcement officers. The attorney general's office normally does not issue opinions on matters that are already before the courts.

The request for an attorney general's opinion came from Havre City Attorney Mary VanBuskirk on behalf of then Police Chief Kevin Olson in November.

VanBuskirk asked for an opinion that would allow police chiefs to withhold the names of victims of so-called "crimes against persons," like robbery, homicide and assault.

State law prohibits police departments from releasing only the names of victims of sex crimes. It also says that at the request of victims, police cannot make public their places of employment, telephone numbers or addresses, unless the crimes occurred at their home.

The draft opinion from Attorney General Mike McGrath's office goes further, and would allow police to keep secret the names of victims of any type of crime if the victim requests it.

"It appears that (McGrath is) rewriting the law," Havre Daily News publisher Harvey Brock said today. "It's too bad he didn't wait for the decision to come out of the courts."

Pam Bucy, assistant attorney general, said that since VanBuskirk's request for an attorney general's opinion did not specifically address initial incident reports, it is not identical to the suit the Havre Daily News and eight other news organizations filed in state District Court Wednesday against the city of Havre and three supervisors in the Police Department. Therefore, she said, McGrath could issue the opinion.

The attorney general does not write opinions on issues that are identical to those that are before the courts, she said.

Brock said the issues are not different. It is through initial incident reports that the public can find information about crimes against persons, including the names of victims, he said.

"I don't see how they are different. They are exactly the same thing," he said.

McGrath's draft opinion says law enforcement officers creating policies providing "complete confidentiality to victims upon their request" would not violate Montana law governing disclosure of public information.

The draft opinion says the state law that allows victims to request that information about their address, telephone number and place of employment be kept confidential was written to help balance the competing constitutional rights of privacy and of freedom of information. That justifies law enforcement agencies editing out information from documents given to the public, including the victim's name, if the victim requests it, the draft says.

It also says the addresses of all crime scenes must be made public, even if it is requested to be kept confidential by a victim, and that other information must be made public if specified by law or authorized by the courts.

The lawsuit by the Havre Daily News and other news organizations asks the court to order the Havre Police Department to set up policies requiring the department to provide complete initial incident reports to the public upon request during regular business hours.

The lawsuit request the court to order the Police Department to include information about the accused, about whether the accused was arrested or merely cited for a charge, any physical evidence seized, the length of the investigation, information about witnesses or victims related to the incident, information about any charges, scheduling of judicial action and any request to the public to help obtain evidence.

The lawsuit was filed after the Police Department blackened out information in a police report that the plaintiffs believe is public information.

Jim Strauss, publisher of the Great Falls Tribune and president of the Montana Newspaper Association, said he is somewhat surprised that McGrath is going to issue an opinion.

"I would think he would wait for a ruling to be issued in this lawsuit," he said.

Strauss had not seen the draft opinion when he was interviewed.

He said he supports the lawsuit because of its statewide implications. The question is whether Montanans want an open government and want free and open access to records. The question is much larger than whether the media can access information, he said.

"This isn't about the media. This is about the public right to know," he said.

Bucy said the attorney general's office is sending information to news agencies and law enforcement agencies within the next day or so about what it thinks should be included in initial incident reports and in initial arrest records.

She said the information is being provided after FOI Hotline and news organizations surveyed public agencies last summer to see if the agencies provide information that is public under Montana law. Many sheriff's departments around the state failed the test.

Montana law states that initial incident reports and initial arrest records are public information, but "the act provides no guidance as to what is included in those reports," she said.

People will have about two weeks to comment on the draft opinion before a final draft is written and the opinion released, Bucy added.

The guide on what should be included in initial incident reports and initial arrest records will be scheduled for a rules hearing in Helena.