DONREY OF NEVADA v. BRADSHAW

OPINION

STEFFEN, J., dissenting:

Respectfully, I dissent.

Police investigative and intelligence reports are not subject to disclosure under NRS Chapter 179A, Nevada's Records Of Criminal History Act (the Act). They are specifically exempted from disclosure under the terms of the Act. Appellants contend that because other records are also specifically exempted that are not confidential, the Act intended to treat criminal investigative and intelligence reports as public records subject to disclosure to the media. The most that can be said for appellants' position is that the Act does not classify such reports as confidential or non-confidential. Appellants' contention that the Attorney General's opinion declaring investigative reports confidential is inconsistent with the public status of other records listed in NRS 179A.070(2) appears to me to be unsound. All the referenced exemptive provision does is exclude various items from the mandatory disclosure requirements of the Act.

Appellants also contend that police investigative and intelligence reports are "public records" subject to disclosure under NRS 239.010 because they have not been accorded a confidential status by statute. By so contending, appellants are seeking the realignment of two strongly favored and juxtaposed public policies involving open government and effective law enforcement. Heretofore, law enforcement agencies have released to the media selective information on criminal investigations and procedures consistent with the ongoing interests of effective and efficient police operations and the right of the public to be reasonably informed. Obviously, if appellants had succeeded in achieving their optimum position, serious problems would have resulted in the law enforcement community. Considerations of safety for officers and informants, investigative methodology and efficacy, and cooperative efforts between agencies, to name but a few, would be seriously impacted.

The majority appears to have assumed a position of "neither fish nor fowl" concerning the status of criminal investigative and intelligence reports. As a result of the majority's rule of equivocation, law enforcement agencies will be unable to predict with assurance the status of their investigative and intelligence reports in any given case until they have been subjected to the uncertainties of a judicial balancing test. I expect that the end result of such a rule will be an altered method of maintaining or memorializing ongoing police investigations. In any event, I suggest that the majority rule is unnecessarily vexatious and disruptive to law enforcement. There is, I submit, a preferable alternative that I will address in due course.

As noted previously, appellants maintain that because some of the records excluded from the definition of criminal history records are not confidential in nature, all excluded records are public records and subject to dissemination under NRS 239.010. Aside from the fact that the premise is a non sequitur, it would be highly unlikely that the Legislature would exclude investigative and intelligence records from mandatory dissemination in one statute and require their disclosure in another. Appellants also assert, and the majority agrees, that because the Act deviated from the parent federal regulations by excluding investigative and intelligence records along with other records, the "inescapable conclusion" is that the Nevada Legislature intended such records to be subject to disclosure. I have reached a contrary conclusion.

The fact that certain records are excluded from the definition of "criminal history records" does not make them public records. For example, 28 C.F.R. § 20.20(b) of the parent federal regulations (hereinafter, in general, Federal Regulations) does not exclude information concerning juveniles. However, that category of records is among the records excluded from NRS 179A.070. NRS Chapter 62 prescribes a procedure for handling juvenile records, including the sealing thereof. Although juvenile records are not explicitly declared confidential by statute, their general inaccessibility to the public and the procedures provided for their sealing compel the inference that they are confidential.

Similarly, criminal investigative and intelligence records are not among the enumerated documents excluded from the definition of "criminal history records" in the Federal Regulations. For this reason, the majority concludes that the Nevada Legislature deviated from the Federal Regulations with the intention that such records be subject to disclosure. It is clear, however, that NRS 179A.070(2) is not a "deviation" from the Federal Regulations. Subsection 20.21(g)(6) of the Code of Federal Regulations provides that:

The individual's right to access and review of criminal history record information shall not extend to data contained in intelligence, investigatory, or other related files and shall not be construed to include any other information than that defined by § 20.3(b).

(Emphasis added.)

The quoted section limits an individual's right of access to his criminal history records. An individual who is the subject of a criminal history record is among those who must be given access to such records under NRS 179A.100(5). It is unreasonable to assume that the Federal Regulations, after which Chapter 179A was patterned, would preclude an individual from obtaining investigatory information on himself while mandating the release of the same information to the media. It is equally incredible that the Nevada Legislature, also precluding an individual from accessing investigative data concerning himself (NRS 179A.150(1)), would mandate the disclosure of such information to the media. I suggest, therefore, that Nevada's Act does not constitute a deviation from its federal counterpart and that the majority improperly concludes that the non-existent deviation was purposefully enacted in order to "clarify that investigative reports are subject to disclosure if policy considerations so warrant."

In Branzburg v. Hayes, 408 U.S. 665 (1972), the Supreme Court noted that "[i]t has generally been held that the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally." Id. at 684. The court also observed that the press is regularly excluded from grand jury proceedings and crime scenes to which the public has no access, despite the fact that news gathering may be impeded. Id. Grand jury proceedings and crime scenes are generally loci of investigations and intelligence which law enforcement agencies seek to protect from public access. Thus, even the public's right to know must at times be subordinate to criminal detection and investigation.

As previously noted, NRS 179A.070(2) does not make a declaration of confidentiality, but rather of exemption. NRS 179.100(5) (Supp. 1989) mandates that records of criminal history must be disseminated to certain enumerated individuals and entities, including the media. By excluding investigative and intelligence information from criminal history records, the statute is exempting such information from mandatory access. This position is supported by the Opinion of the Attorney General 83-3 (5-2-1983) in regards to NRS 239.010 as follows:

Criminal investigation and intelligence reports are confidential as internal intelligence and investigative records collected in the course of the enforcement of criminal laws and are not public records subject to inspection under this section.

Because appellants' contentions are founded on the Public Records Act (PRA) embodied in NRS 239.010, it is illuminating to review cases in other jurisdictions interpreting similar statutes and their federal counterpart, the Federal Freedom of Information Act (FOIA).

5 U.S.C. § 552.

Appellants cite the PRA in support of the proposition that "absent an express declaration that a record is confidential, its disclosure is mandatory." They contend that because investigative and intelligence records have not been expressly declared confidential, they are public records subject to mandatory disclosure under the PRA. Importantly, however, that statute provides that "[a]ll public books and public records . . . the contents of which are not otherwise declared by law to be confidential" shall be available to the public. (Emphasis added.) Equally important, before a document comes within the purview of the statute, it must be a "public record." And, if the public record is declared to be confidential, it is exempt from disclosure under the PRA. Unfortunately, "public record" is not defined in the statute.

I am convinced that an investigative report is not, and was never intended to be, a public record subject to the disclosure mandates of the PRA. It has been stated that:

"A public record, strictly speaking, is one made by a public officer in pursuance of a duty, the immediate purpose of which is to disseminate information to the public, or to serve as a memorial of official transactions for public reference."

Also a record is a "public record" which is required by law to be kept, or necessary to be kept in the discharge of a duty imposed by law or directed by law to serve as a memorial and evidence of something written, said or done. . . . It has also been held that a written record of transactions of a public officer in his office, which is a convenient and appropriate method of discharging his duties, and is kept by him as such, whether required by express provisions of law or not, is admissible as a public record.

Matthews v. Pyle, 251 P.2d 893, 895 (Ariz. 1952) (emphasis supplied).

Moreover, the mere fact that a record is prepared by a public official or employee does not make it a public record. Cowles Pub. Co. v. Murphy, 637 P.2d 966, 968 (Wash. 1981) (en banc). Similarly, a document does not become a public record merely because public officials collectively act upon it. Id. Nor does the fact that a document is kept by a public officer make it a public record. Looby v. Lomenzo, 301 N.Y.S.2d 163 (1969). In Looby, the court ruled that a card index file was not a public record because it was created to promote office efficiency rather than to satisfy statutory mandate. Id. at 165.

In the case of In re Toth, 418 A.2d 272 (N.J.Super.A.D. 1980), the Right to Know Law defined a public record as one "required by law to be made, maintained or kept on file" by government officials. Toth was, in essence, an inverse disclosure action. An officer was appealing a disciplinary action for disclosing an investigatory report on the chairman of the Casino Control Board. His defense was that the record was public under the State's Right to Know Law. The court held that because the statute did not require a written record or report to be made, it was not a public record within the purview of the statute.

By its very nature, a criminal investigative report does not fit the category of a public record. It is not prepared for dissemination to the public or to memorialize official transactions for public reference. Neither is it required by Nevada law to be prepared, maintained, or filed, unlike the situation in Carlson v. Pima County, 687 P.2d 1242 (Ariz. 1984), relied on by appellants. In Carlson, the report at issue dealt with an altercation between inmates and was required by law to be made.

The court in Westchester Rockland Newspapers, Inc. v. Mosczydlowski, 396 N.Y.S.2d 857 (1977), noted that "records of law enforcement agencies have traditionally been held exempted from public disclosure." Id. at 860. That case involved an Internal Affairs Division investigation into the untimely death of an inmate. As here, the inquiry focused on whether any crimes had been committed and the extent to which any police department personnel were guilty of breach of duty. The IAD prepared its report, and the district attorney concluded that no evidence of criminal wrongdoing existed. The press, dissatisfied with a summary of the report, unsuccessfully sought access to the original. One of the grounds for denial was that the report was outside the purview of the Freedom of Information Law because it was part of a police investigatory file. The lower court ordered disclosure under the rationale that because the investigation had been closed without determining a basis for any criminal action, the report was no longer protected by the statute.

In reversing, the appellate court recognized that the New York Public Officers Law (akin to the Nevada's Public Records Law) subjected some police records to disclosure (e.g., police blotter and booking entries). The court nevertheless stated that:

The subject report is not such a record. . . . [I]t is akin to an intra- or inter-agency memorandum within the contemplation of the Federal Freedom of Information Act (U.S. Code, tit. 5, § 552[b][5]), upon which our law is patterned, or is, perhaps, a final agency opinion on the facts and circumstances surrounding the death of an individual while in police custody. . . . So viewed, the competing interests at bar are best satisfied by directing disclosure of only so much of the subject report as represents purely factual matter, with the names of police officers and jail personnel deleted.

Id. at 860. The competing interests in the instant case appear to have been satisfied by the City Attorney's disclosure of the facts surrounding the dismissal of charges against Joe Conforte, portions of the report, and corresponding data.

I suggest, therefore, that only if a record can be properly construed to be both "public" and non-confidential in nature is it subject to mandatory dissemination. Although the majority has rewritten the PRA with a balancing limitation regarding investigative and intelligence files, if, as appellants contend, such files are non-confidential and subject to the terms of the PRA, then, under its express terms, the reports are to be made available to any person, at all times during office hours, for any advantage and for copying in full. In my opinion, such a conclusion is untenable and inimical to society's interests.

Appellants also assert that publication of the investigation report is necessary so that the public is not "left in the dark" about the policies and procedures of the City Attorney's office. However, as emphasized by cases interpreting FOIA and its state counterparts, there are some documents to which the public should not be privy.

Appellants cited Houston Chronicle Pub. Co. v. City of Houston, 531 S.W.2d 177 (Tex. 1975), for the proposition that the press and the public have a constitutional right of access to information concerning crime in the community and activities of law enforcement agencies. However, as stated by that court:

This constitutional right of access to information should not extend to such matters as a synopsis of a purported confession, officers' speculation of a suspect's guilt, officers' views as to the credibility of witnesses, statements by informants, ballistics reports, fingerprint comparisons, or blood and other laboratory tests.

Id. at 187.

Prior to 1976, FOIA's Exemption 7 pertained to "investigatory records compiled for law enforcement purposes except to the extent available by law to a private party." 5 U.S.C. § 552(b)(7). That phrase was broadly interpreted to include any records containing information garnered in the investigation of possible criminal activity. For example, in Koch v. Dept. of Justice, 376 F. Supp. 313 (D.C. 1974), three Congressmen sought disclosure of files pertaining to themselves. The files contained background information on the Congressmen, correspondence, internal memoranda, and citizen complaints and comments. The court ruled that files maintained by the FBI in aid of investigations into the possibility that a subject had engaged in criminal activity or other conduct that would disqualify the person from government service were "investigatory files" and thus exempt under Exemption 7. The Koch court reasoned that "[i]n order to insure such confidentiality, F.B.I. files may be withheld if law enforcement was a significant aspect of the investigation for which they were compiled. . . ." Id. at 315. Because all documents (investigatory and non-investigatory) had been mingled together, the court ordered an in camera inspection. It stated that the inspection "could have been avoided had the Bureau clearly segregated investigatory material from other documents. . . ." Id.

Because Exemption 7 was subject to broad interpretation, it was amended by Congress in 1986 to narrow its scope. As amended, records and information compiled for law enforcement purposes are exempt from disclosure. However, the exemption applies only where disclosure would result in one of six specified harms.

5 U.S.C. § 552(b)(7) (1988 ed.) provides:

(b) This section does not apply to matters that are —

. . . .

(7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence information, information furnished by a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual.

In Abramson v. FBI, 456 U.S. 615 (1981), the Supreme Court interpreted the meaning and scope of the 1976 version of Exemption 7. Abramson involved a professional journalist who invoked the FOIA in an attempt to obtain information compiled by the FBI regarding certain politicians. The desired reports had been incorporated into a document transmitted to the White House. The Bureau denied the request on grounds that the information was exempt from disclosure under Exemptions 6 and 7 of the FOIA. However, the Bureau did provide the journalist with 84 documents, some of which had been partially redacted. The issue was whether the FBI reports lost their exempt status when joined with records compiled for other than law enforcement purposes.

The 1976 version of Exemption 7 is substantially the same as the current Exemption 7. The amendment substituted the words "records and information" for the words "investigatory records."

The Abramson court approached the issue with the following analysis:

The language of the Exemption indicates that judicial review of an asserted Exemption 7 privilege requires a two-part inquiry. First, a requested document must be shown to have been an investigatory record "compiled for law enforcement purposes." If so, the agency must demonstrate that release of the material would have one of six results specified in the Act.

Id. at 622. The court of appeals had ordered disclosure on the basis that the record did not qualify for the exemption. It reasoned that the record transmitted to the White House had not been compiled for law enforcement purposes, even though it contained information that was. The Supreme Court reversed, holding that:

If a requested document . . . contains or essentially reproduces all or part of a record that was previously compiled for law enforcement reasons, it is reasonably arguable that the law enforcement record does not lose its exemption by its subsequent inclusion in a document created for a non-exempt purpose.

. . . .

[T]he statutory language is reasonably construable to protect that part of an otherwise non-exempt compilation which essentially reproduces and is substantially the equivalent of all or part of an earlier record made for law enforcement uses.

Id. at 624-25.

In the instant matter, the subject report unquestionably satisfies the threshold inquiry. The investigation commenced to determine whether bribery or other misconduct was a factor in the dismissal of charges against Conforte. Appellants contend, however, that because the report did not result in a prosecution and was subsequently labeled "administrative" in nature, the report is subject to disclosure. I do not agree.

Under the Abramson ruling, if a report is initially prepared for law enforcement purposes, the threshold requirement is met, and the subsequent use to which the report is committed or name it is given is of no significance. As declared by the court in Arenberg v. DEA, 849 F.2d 579 (11th Cir. 1988):

The information gathered by the agency need not lead to a criminal prosecution in order to meet the threshold requirement. Courts should be hesitant to reexamine a law enforcement agency's decision to investigate if there is a plausible basis for the agency's decision.

Id. at 581.

Under the foregoing federal authorities interpreting the FOIA, it is apparent that the investigative report compiled by the Reno Police Department would qualify as exempt under subsection 7. However, the inquiry does not end there. Next, an agency claiming the Exemption 7 privilege must demonstrate that one of six "harms" within Exemption 7 would result.

Appellants contend that because the investigative report has not been declared by law to be confidential, at the very least a balancing test should be used to determine whether the report should be disseminated to the public. According to the Supreme Court, the FOIA does not require such a test. The Abramson court interpreted the federal act to mean that "[c]ongress . . . created a scheme of categorical exclusion; it did not invite a judicial weighing of the benefits and evils of disclosure on a case-by-case basis. Abramson, 456 U.S. at 631.

In U.S. Dept. of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989), the court discussed the categorical balancing approach to the FOIA exemptions. Reporters there sought to obtain the "rap sheets" of individuals believed to have improper dealings with a corrupt Congressman. The FBI invoked Exemption 7(C) in refusing the request. The court rejected an ad hoc balancing approach in favor of categorical balancing. Under the latter test, once a report falls into an exempted category, it is exempt from disclosure without the need for case-by-case balancing. The court reasoned that:

establishing a discrete category of exempt information implements the congressional intent to provide "workable" rules. . . . Only by construing the Exemption to provide a categorical rule can the Act's purpose of expediting disclosure by means of workable rules be furthered.

(Emphasis in original.) Id. 489 U.S. at 779 (quoting FTC v. Grolier Inc., 462 U.S. 19 at 27-28). The court declared that this approach may be undertaken for an "appropriate class of law-enforcement records or information." Reporters Comm., 489 U.S. at 777. Thus, the court held:

as a categorical matter that a third party's request for law-enforcement records or information about a private citizen can reasonably be expected to invade that citizen's privacy, and that when the request seeks no "official information" about a Government agency, but merely records that a Government happens to be storing, the invasion of privacy is "unwarranted."

Id. 489 U.S. at 780.

However, protection from disclosure is not limited to persons in their individual capacity. In Buhovecky v. Dept. of Justice, 700 F. Supp. 566 (D.C. 1988), an inmate convicted of bank robbery sought access to FBI records. The investigative file consisted of grand jury material, "rap sheets," information obtained through interviews with law enforcement officials and individuals, and other materials. The FBI released some of the requested material, but withheld information which included the names of individuals and FBI personnel and the rap sheets. After undergoing a two-part inquiry to determine whether Exemption 7 was applicable, the court ruled that:

The type of information defendants seek to protect is information which would lead to discovery of the identity of participants in a criminal investigation. The interest in nondisclosure is obvious here; there is a need to protect from harassment those who participate, in either an official capacity or as investigative sources, in FBI investigations.

Id. at 570.

Here, among the reasons respondents refused disclosure is the invasion of privacy of those who were investigated and against whom no charges were brought. Appellants claim the invasion is "minimal" and thus the public's need to know should be balanced favorably against the minimal intrusion. Such reasoning is inconsistent with the Supreme Court's interpretation of Exemption 7.

Categorical balancing is consistent with the second prong of the Abramson court's two-part analysis of Exemption 7. That is, once one of the six "harms" is demonstrated, the exemption is applicable. Moreover, it would appear that a "categorical balancing" would be both administratively and judicially efficient. In handling a records request, a government agency should be able to rely on bright-line procedures for disseminating information rather than awaiting a case-by-case judicial determination.

I have belabored federal case law concerning the FOIA by way of analogy only. In those limited instances where "public records" are of an uncertain confidential status, I suggest that the categorical balancing approach would be preferable to the ad hoc balancing fashioned by the majority. Despite the absence of Exemption 7 in Nevada's PRA, it would appear that the categories contained therein could be accorded judicial deference by Nevada courts as guidelines for implementing a categorical balancing approach. In so doing, we would assume no greater liberties with the language of the PRA than the majority rule limiting access to investigative and intelligence reports under the PRA to material sifted by an ad hoc judicial balancing.

Unfortunately, my preoccupation with the categorical balancing test amounts to little more than vented frustration over the burdensome judicial screening imposed by the majority under circumstances that, I respectfully submit, justify no balancing requirements at all. To me, it is beyond cavil that the PRA operates only on "public records," and that criminal investigative and intelligence reports are not, and were never intended to be, classified as public records. NRS Chapter 179A mandates the dissemination of specific criminal history information, expressly excluding investigatory and intelligence reports. The PRA mandates a complete dissemination of "public records." It is illogical to assume that what the Legislature specifically excluded from dissemination under the former, it intended to mandatorily release in full under the latter. Such contortive reasoning renders meaningless the exclusion under Chapter 179A.

For the reasons hereinbefore expressed, I am convinced that the district court judge was both perceptive and correct and should be affirmed. I therefore dissent.