In the wake of the April 21 killing of Andrew Brown, Jr., in Elizabeth City, North Carolina, I have fielded several media inquiries about our body cam law and the judge’s ruling limiting access to the footage about the shooting. With the help of the School of Government’s public records expert, Frayda Bluestein, I learned several things about our law. Below are a few that stand out to me. (You can read Frayda’s thorough analysis of the body cam law here and a discussion by Jeff Welty of a 2019 amendment to the law here.) Continue reading
Tag Archives: public records
In my last blog post on hearsay exceptions, I discussed the business records exception. Here, I’ll address the hearsay exception for public records and reports.
Rule 803(8) provides a hearsay exception for “[r]ecords, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth:
(A) the activities of the office or agency,
(B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law‑enforcement personnel, or
(C) in civil actions and proceedings and against the State in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law.”
Covered Records and Reports. The rule refers to “[r]ecords, reports, statements, or data compilations, in any form.” N.C. R. Evid. 803(8)(A).
Activities of the Office or Agency. The rule covers records, etc. setting forth “the activities of the office or agency.” N.C. R. Evid. 803(8). Examples include:
- records of a county tax department, State v. Oxendine, 112 N.C. App. 731, 738 (1993); and
- a magistrate’s civil driver’s license revocation order, State v. Woody, 102 N.C. App. 576, 578 (1991).
Pursuant to Duty Imposed By Law. The rule covers records, etc. setting forth “matters observed pursuant to duty imposed by law as to which matters there was a duty to report.” N.C. R. Evid. 803(8)(B). This would include, for example a medical examiner’s investigation and autopsy report, In re J.S.B., 183 N.C. App. 192, 197-98 (2007), and reports by SBI analysts. State v. Acklin, 317 N.C. 677, 682 (1986). By contrast, one case held that a City Manager’s report of the police department’s handling of a murder case wasn’t the result of authority granted by law. State v. Hunt, 339 N.C. 622, 654 (1994).
In criminal cases, the rule excludes “matters observed by police officers and other law‑enforcement personnel,” N.C. R. Evid. 803(8)(B), such as officers’ observations during investigations. State v. McLean, 205 N.C. App. 247, 250 (2010). Thus, the notes of a non-testifying, undercover officer summarizing alleged drug transactions with the defendant are inadmissible under this exception. State v. Harper, 96 N.C. App. 36, 40 (1989). Also inadmissible is a defendant’s exculpatory statement to an officer that is contained in the officer’s report. State v. Maness, 321 N.C. 454, 459. However, this provision doesn’t exclude records of routine, ministerial matters made by law enforcement in a non-adversarial setting, such as booking records. See, e.g., McLean, 205 N.C. App. at 250-51.
Findings From an Investigation. The rule covers records, etc. setting forth “factual findings resulting from an investigation made pursuant to authority granted by law.” N.C. R. Evid.. 803(8)(C). The term “factual findings” doesn’t preclude admission of reports containing conclusions or opinions. Official Commentary to N.C. R. Evid. 803; see also In re J.S.B., 183 N.C. App. 192, 196-98 (2007) (the fact that a medical examiner’s investigation and autopsy report contained the medical examiner’s opinion as to cause of death in addition to objective observations of the victim’s physical injuries did not preclude admissibility).
Lack of Trustworthiness. Public records and reports are inadmissible if “the sources of information or other circumstances indicate lack of trustworthiness.” N.C. R. Evid. 803(8); see Official Commentary to N.C. R. Evid. 803 (this provision applies to all three parts of the rule).
Determining whether information or circumstances indicate a lack of trustworthiness requires a consideration of the totality of the circumstances surrounding “the making of the statement and that render the declarant particularly worthy of belief.” State v. Little, 191 N.C. App. 655, 666 (2008) (citation omitted). Compare id. (excluding a statement by non-testifying witness contained in an SBI agent’s crime scene report), with State v. Acklin, 317 N.C. 677, 682 (1986) (impartiality of SBI agents who created reports and ability to cross-examine witnesses assured trustworthiness), and State v. Watson, 179 N.C. App. 228, 245 (2006) (admitting prison records after finding that the circumstances did not indicate a lack of trustworthiness).
Authentication. All that is required to authenticate a public record is evidence that the record, etc. “is from the public office where items of this nature are kept.” State v. Oxendine, 112 N.C. App. 731, 738 (1993) (quoting N.C. R. Evid. 901(b)(7)). For original public records or documents, this is typically done with testimony by the custodian that it “is a part of the records or files of the custodian’s office.” Id.; see also 2 Brandis & Broun at 900.
N.C. R. CIV. P. 45(c)(2), which applies in criminal cases, G.S. 15A-801, allows custodians of public records to submit certified copies of records and affidavits in response to subpoenas.
Relation To Other Rules. The Official Commentary to Rule 803 says that public records and reports that are not admissible under the Rule 803(8) exception are not admissible as business records under Rule 803(6). Whether this is in fact the law in North Carolina is not clear. See State v. Forte, 360 N.C. 427, 436 n.1 (2006) (assuming without deciding that this Commentary reflects the intent of the General Assembly). But see State v. Wise, 178 N.C. App. 154, 160 (2006) (not mentioning this commentary but stating: “there is no merit in defendant’s argument that Rule 803(6) is limited by Rule 803(8)”); State v. Lyles, 172 N.C. App. 323, 325 n.1 (2005) (citing a now discredited North Carolina Supreme Court case for the proposition that Rule 803(8) does not restrict Rule 803(6)).
[Editor’s Note: My colleague Frayda Bluestein is the author of this post, which she wrote for the School of Government’s blog about local government law. Because she’s not a regular contributor to this blog, she’s not set up in the software as an author, which is why it is posted under my name and picture. Thanks to Frayda for allowing us to run this interesting post.]
This may seem like a silly question. Mug shots (more formally, “booking photographs”) are everywhere, posted for free, searchable on line, sold in magazines at convenience stores, and regularly provided by law enforcement agencies. I never considered the question of whether North Carolina law enforcement agencies could withhold mug shots until a lawyer at the North Carolina Justice Center asked me to look at an analysis he prepared, arguing that mug shots are not subject to public access. There is no North Carolina case on this point, but now that I have looked into it, I believe that mug shots are criminal investigation records and that local law enforcement agencies have the authority to deny access to them. I’m not arguing that agencies should deny access, but I think it’s important for public agencies to understand that they can. I also think agencies have the authority to release some photographs and not others, if there is a legitimate law enforcement purpose for doing so.
As I’ve discussed in an earlier post, records made or received in the transaction of public business are subject to public access under our broad public records law, unless an exception allows or requires the public agency to deny access. A broad exception, G.S. 132-1.4, allows (but does not require) law enforcement agencies to withhold records of criminal investigations and records of criminal intelligence information. Criminal investigation records include all records “compiled by public law enforcement agencies for the purpose of attempting to prevent or solve violations of the law, including information derived from witnesses, laboratory tests, surveillance, investigators, confidential informants, photographs, and measurements.” GS. 132-1.4(b)(1).
Although it might be possible to argue the point, it seems to me that mug shots meet the definition of “criminal investigation records.” Arguments to the contrary are that the photograph is not obtained for the purpose of solving or preventing crimes – after all, at that point, a crime has already been committed and presumptively solved. Perhaps the photographs are “jail records” or “booking records” that document the results of law enforcement efforts, rather than constituting records of the efforts themselves. These are reasonable points, but upon review of the statute and case law, I don’t find them to be persuasive.
Law enforcement agencies use mug shots to solve crimes in many ways following the initial booking of a person who is alleged to have committed a crime. First of all, the person photographed has not yet been convicted. The law enforcement agency may still have to strengthen its case. Law enforcement agencies may also use the photographs to identify witnesses to or collaborators in the alleged crime. Mug shots may serve as a deterrent to future criminal activity by the suspect and others, and may be used to prevent or solve a future crime committed by the same person.
A review of the whole statute also suggests that mug shots are a type of record that is within the scope of the exception. Subsection (c) of the statute lists information that is subject to public access. This list creates an exception to the criminal records exception. Mug shots are not on the list of information that must be released to the public, but that list includes types of information that are similar to mug shots. Subsection (c)(2), for example, includes the name, sex, age, address, and employment of a person arrested, charged, or indicted. This information seems akin to a photograph in the sense that it simply documents information about the person. David Lawrence notes in his book on North Carolina’s Public Records law that “the listing of investigative material that is public also offers assistance in determining the kinds of records that are excluded from public access by the statute.” He also includes mug shots as an example of records that have been held to be law enforcement records under comparable statutes in other states. See, Lawrence, Public Records Law For North Carolina Local Governments, p. 199. Since mug shots are similar to things that are listed as law enforcement records, but are not on the list of such records that must be made public, I conclude that they are law enforcement records that are within the exception and need not be made public.
Cases decided under the federal Freedom of Information Act (FOIA) have consistently held that mug shots are law enforcement records. For example, in World Publishing Co. v. U.S. Dep’t of Justice, 672 F.3d 825 (10th Cir. 2012), a federal appeals court held that booking photos of pretrial detainees fall within the section 7(C) exception in FOIA for “records or information compiled for law enforcement purposes.” In Times Picayune Publishing Corp. v. U.S. Dep’t of Justice, 37 F.Supp.2d 472, (E.D. La. 1999), a federal district court held that the booking photographs of a well-known businessman were law enforcement records even though the suspect had pleaded guilty and been sentenced. The processing of individuals charged with federal crimes, the court held, is clearly a law enforcement function.
I reviewed the legal issue of whether mug shots may be withheld from public access, but I haven’t studied the policy issue of whether they should be withheld. The North Carolina Justice Center makes an argument against their release here. In doing research on the legal issue, I noted that there is significant case law about the admissibility of mug shots in criminal trials, which reflects their potential to be prejudicial to the defendant. And under the federal FOIA exception, law enforcement records may be withheld only if their release “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” It appears that the stigma associated with mug shots has generally satisfied the test under the exception. [The Sixth Circuit, in Detroit Free Press, Inc. v. Dep’t of Justice, 73 F.3d 93, 97 (6th Cir.1996) has held to the contrary, in a case involving defendants whose names had already been divulged and who had already appeared in open court.]
Businesses, public access advocates, and some law enforcement agencies, which regularly make mug shots widely available, argue that it helps solve crimes, provides transparency, and operates as a deterrent. For example, in support of proposed legislation that would guarantee public access to mug shots, the company mugshot.com says:
Public access to mugshots is undoubtedly in the public interest. Publishing mugshots helps avoid confusion and misidentification of who has been arrested, alerts residents to who is living in their community, helps law enforcement keep people safe, and helps hold government accountable.
Press organizations also advocate for public access, recently urging a probe of the United States Department of Justice policy of denying access under the 7(C) FOIA exception.
Yet another dimension of the issue arises when companies who publish mug shots also provide the service of removal, for a fee. Concerns about this practice are discussed in a Wired article here. These concerns are part of a broader discussion about the extent to which private companies should be allowed to use public information for profit. As to records that are clearly public, however, North Carolina’s statute does not allow consideration of privacy concerns, and prohibits a public agency from requiring a person to disclose the purpose or motivation behind a request for public records.
This brings me to a few final questions for law enforcement agencies to consider. If mug shots are indeed law enforcement records, agencies are allowed, but not required, to withhold them from public access. Could an agency decide to release them only selectively, on a case-by-case basis? And could an agency release them only for certain uses, for example, for media use but not commercial use for mass release?
I think a law enforcement agency may selectively release some mug shots and withhold others for reasonable, law enforcement purposes. An agency may certainly face pressure to release mug shots for other reasons, for example, in high profile arrests, but I’m not aware of any limitation on the agency’s discretion to refuse to release records when it has no law enforcement reason for doing so. Lawrence notes, in his public records book, that courts have imposed liability for selective release of records that are not open to public access, but the cases cited involve invasion of privacy and tort liability based on the impact of the release on individuals who were the subject of the records. See, Public Records Law at p. 110-111. Agencies should be careful to consider these interests in making decisions about whether and when to release specific mug shots.
Selective release of particular records to some members of the public but not others is probably not allowed under our statutory scheme. Given the strong policy of open access, and the prohibition on consideration of purpose or motive, I would be wary of a policy that allows release of the same material to one requester and denies it to another. Cases have held that a public agency waives its ability to withhold a record from public access if the record is released to some but not all members of the public. See, City of Riverdale, v. Diercks, 806 N.W.2d 643,658 (Iowa 2011)(“It is untenable for Riverdale to play the video for a reporter covering the dispute between the parties and yet withhold the same video from the defendants who requested it…It is axiomatic that disclosure to a third party waives confidentiality.”)
Law enforcement agencies have choices. They may routinely release all mug shots, they may release none, or they may choose to release some, when necessary or appropriate for law enforcement purposes. Agencies that wish to release some but not all mug shots should develop a policy outlining the justifications for withholding or releasing them.
If you haven’t heard about them already, you should know about two fantastic new publications by School of Government faculty members.
The first is Bob Farb’s paper on Maryland v. Shatzer, the Supreme Court’s recent Miranda case that I mentioned briefly here. The Court held that after a suspect invokes his right to counsel, police must stop questioning him but may try again after a 14-day break in custody. Unfortunately, the opinion leaves several very important questions unanswered, such as whether the 14-day rule applies to suspects who are held in pretrial detention, whether an officer who is rebuffed a second time after a break in custody may try again after another 14 days, and whether police may question a defendant who is released from custody but is re-arrested on suspicion of a new crime within 14 days. Bob’s paper addresses each of those questions in his usual comprehensive manner. The paper’s a must-read for everyone, including officers, and it is a free download, available here.
The second is David Lawrence’s new edition of his book Public Records Law for North Carolina Local Governments. You can learn more here, or look at the table of contents here. Why would a criminal lawyer care about the Public Records Law? Because in more and more cases, defense attorneys are trying to use the public records law to obtain information about officers and police procedures that isn’t available through criminal discovery. Chapter 8 of the book is all about law enforcement and jail records, and discusses the scope of the law’s exception for records of criminal investigations. This book isn’t free, but it may belong in your library: I use my copy of the previous edition regularly, and I’m looking forward to getting the new edition.