AG: Police must balance rights in handling victim information

HELENA - Montana law enforcement agencies can neither release nor withhold information about some crime victims without first determining if the public's right to know or the victim's right to privacy is more important, Attorney General Mike McGrath said Thursday.

In the formal opinion, McGrath said that balancing test should be done whenever a victim requests that information such as address, phone number or employer be kept secret, or when the public wants to know a victim's name or a crime scene location that could be linked to a victim.

State laws requiring confidentiality of some victim information and disclosure of other details cannot be blindly followed in every case, and competing constitutional rights sometimes must be considered, he said.

The decision, which has the force of law unless overturned by a court or legislative action, was a partial victory for both sides in a dispute between the Havre Police Department and the Havre Daily News over access to information in crime reports.

The city asked whether it could adopt a policy giving complete confidentiality to crime victims upon request without violating state law and whether locations of crime scenes can be withheld if they would identify victims.

McGrath's opinion forbids a sweeping secrecy policy about crime victims by requiring a case-by-case analysis of privacy rights and the right to know, said Chris Tweeten, chief civil counsel for McGrath. But it allows crime scene addresses to be withheld in instances where authorities conclude individual privacy is paramount.

Helena lawyer Kim Wilson, who commented on the issue for the Montana Freedom of Information Hotline, said the decision correctly demands law enforcement consider more than a person's privacy right in handling crime victim information.

''I don't think it opens the door for agencies to be more restrictive with information,'' he said. ''It may remind them they have to be looking at the public's right to know'' as well.

Havre City Attorney May VanBuskirk, who had requested the opinion on behalf of then Havre Police Chief Kevin Olson, could not be reached for comment.

Harvey Brock, publisher of the Havre Daily News, applauded rejection of the Police Department's request for a broad policy on confidentiality, but said he was concerned about authorities having power to deny citizens information about where crimes are occurring.

''The balancing act that must be applied to whether a scene of a crime can be disclosed is in the hands of the gatekeeper and the gatekeeper in this case is the Havre Police Department,'' he said.

Brock said McGrath's ruling will not derail his newspaper's lawsuit against the city over police censoring crime reports. The opinion does not address the suit's complaint about the practice of withholding names of witnesses who are not victims, he said.

The lawsuit asks the courts to clearly establish what information must be made public in a police initial incident report, he added.

McGrath's opinion does not change the confidentiality afforded by state law to victims of sex crimes.

Although the decision does not specifically mention how the names of other crime victims are to be handled, Tweeten said the same balancing of constitutional rights would apply to potential release of names as well.

While not requiring release of crime scene locations, McGrath noted such disclosure ''generally is required'' even if a crime victim asks for confidentiality, was the subject of a sex offense or could be inadvertently identified by the location.