Releasing the Incident Report is Missouri Law, Not a Favor by the Police

[alcibiades_mystery]

The relevant portions of Missouri's open records (Sunshine) law are located under Section 610 subsection 100:

http://www.moga.mo.gov/statutes/C600-699/6100000100.HTM

The most relevant of that section are the following three paragraphs:

2. Each law enforcement agency of this state, of any county, and of any municipality shall maintain records of all incidents reported to the agency, investigations and arrests made by such law enforcement agency. All incident reports and arrest reports shall be open records. Notwithstanding any other provision of law other than the provisions of subsections 4, 5 and 6 of this section or section 320.083, investigative reports of all law enforcement agencies are closed records until the investigation becomes inactive. If any person is arrested and not charged with an offense against the law within thirty days of the person's arrest, the arrest report shall thereafter be a closed record except that the disposition portion of the record may be accessed and except as provided in section 610.120.

3. Except as provided in subsections 4, 5, 6 and 7 of this section, if any portion of a record or document of a law enforcement officer or agency, other than an arrest report, which would otherwise be open, contains information that is reasonably likely to pose a clear and present danger to the safety of any victim, witness, undercover officer, or other person; or jeopardize a criminal investigation, including records which would disclose the identity of a source wishing to remain confidential or a suspect not in custody; or which would disclose techniques, procedures or guidelines for law enforcement investigations or prosecutions, that portion of the record shall be closed and shall be redacted from any record made available pursuant to this chapter.

4. Any person, including a family member of such person within the first degree of consanguinity if such person is deceased or incompetent, attorney for a person, or insurer of a person involved in any incident or whose property is involved in an incident, may obtain any records closed pursuant to this section or section 610.150 for purposes of investigation of any civil claim or defense, as provided by this subsection. Any individual, his or her family member within the first degree of consanguinity if such individual is deceased or incompetent, his or her attorney or insurer, involved in an incident or whose property is involved in an incident, upon written request, may obtain a complete unaltered and unedited incident report concerning the incident, and may obtain access to other records closed by a law enforcement agency pursuant to this section. Within thirty days of such request, the agency shall provide the requested material or file a motion pursuant to this subsection with the circuit court having jurisdiction over the law enforcement agency stating that the safety of the victim, witness or other individual cannot be reasonably ensured, or that a criminal investigation is likely to be jeopardized. If, based on such motion, the court finds for the law enforcement agency, the court shall either order the record closed or order such portion of the record that should be closed to be redacted from any record made available pursuant to this subsection.

I've bolded the portions that would likely require formal adjudication if the issue was to be pressed by any party. For those complaining about due process, the due process is clear. If the Ferguson police Department indeed wanted to keep secret the name of the officer - as recorded in the incident report - it would be the Ferguson Police Department that is required to petition the relevant circuit court to be able to suppress that information. It is not a decision that can be made directly and arbitrarily by the Chief of Police, based on his own judgment.

Of course, all this is moot, as the officer's name will be released in the next few minutes, apparently, but as a point of law, it is useful to determine which decisions the police are permitted to make on their own, and which require the intervention of a court. In Missouri, the police really have no leg to stand on here, unless they want to motion to the court that they cannot reasonably ensure the safety of the officer involved in this shooting.

[justiceischeap]

1. Kick for facts! nt

[avebury]

2. K&R nt

[alcibiades_mystery]

3. CNN cites this law, fails to mention court motion

Still acting like it's a police decision rather than a court decision that would allow the incident report to be redacted.

[TreasonousBastard]

4. This appears to be the only relevant wording...

... investigative reports of all law enforcement agencies are closed records until the investigation becomes inactive. If any person is arrested and not charged with an offense against the law within thirty days of the person's arrest, the arrest report shall thereafter be a closed record except that the disposition portion of the record may be accessed and except as provided in section 610.120.

I would rather hear a real lawyer chime in, but as far as I know, investigations in death cases are always secretive until they figure it out and arrests and indictments are served. Then everything goes on the table at trial.

[alcibiades_mystery]

5. Wrong: You did not read the definitions

There is a difference between incident reports and investigative reports, as set out in the definitions portion of the section ((4) and (5), specifically). The law distinguishes between the kinds of records that are to be closed until concluded (like investigative reports) and those which are open records as soon as they are made, like arrest and incident reports. The whole distinction between sections paragraphs 3, 4, and 5 is premised on those different definitions. The police are obligated to release an incident report to the family of Mike Brown - including the officer's name - as an open record unless they file a motion stating and can prove to a judge that they cannot reasonably ensure the officer's safety.

[TreasonousBastard]

6. So, this is an "incident"? Not an investigation?

[alcibiades_mystery]

7. Read the definitions, please

Incident reports and investigation reports are not mutually exclusive, nor do they refer to different levels of crime. The incident report describes the circumstances around an initial contact or crime. The investigation report details an investigation in response to an incident report. The incident report is open under the law. The investigation report is closed until the investigation is concluded. In this case, there would have to be an incident report and an investigation report. The incident report is an open record and would have to be released without redaction unless the relevant law enforcement agency files and motion and proves to a court that it cannot reasonably ensure the safety of a person named in the incident report. That's it. They have no right to withhold any other information in the incident report.