Control of police records sought

Montgomery wants to decide what is released

A letter from Maricopa County Attorney Bill Montgomery to the region’s police departments spells out, apparently for the first time, a system that puts the prosecutor’s office in control of whether police records are released to the public or withheld.

It warns of financial consequences for police departments that don’t comply.

The letter, obtained by The Arizona

Republic, makes no direct mention that long-standing Arizona law and court rulings hold police records to be presumed public.

It lists reasons Montgomery believes such records might need to be withheld. It spells out a process to limit release of video evidence only for law-enforcement purposes, and describes how prosecutors will pursue protective orders from judges to help keep records private.

State law allows anyone who is denied access to a public record to challenge the decision in court. Montgomery’s letter, though, promises police agencies that if they are sued over withholding records, he will “indemnify”

them.

Then it warns the departments that if they don’t comply, they may be hit with a bill for the County Attorney’s Office’s legal fees later in the case.

“The desires of the public and media to view firsthand evidence of criminal conduct, particularly video evidence, will remain unabated,” Montgomery writes in the letter. “Equally so is our continuing duty to protect the rights of the accused, any victim, and the integrity of a criminal investigation and prosecution. Our criminal justice system deserves no less to maintain our community’s trust and confidence.”

The Republic reviewed the letter with attorneys, law-enforcement officials and academics. Some agreed with Montgomery’s stated goal to protect the integrity of a criminal prosecution. Others were shocked by the idea that a county prosecutor — who does not supervise or represent city police departments — would attempt to control their records. They warned that the system outlined in the letter would have a chilling effect and referred to it as “not authorized” or “a big mess.”

“The public at large should be worried,” said Tom Irvine, a longtime private attorney who has previously represented the Maricopa County Board of Supervisors, after reviewing the letter. “If you can’t get information about what’s happening on criminal matters in your community, or know if police are acting improperly, then you have a big problem.”

“There’s a carrot and a stick,” said David Bodney, an attorney who represents The Republic and other local media outlets. “Withhold records when we tell you to withhold them and we’ll indemnify you if you are sued. But produce documents that create a change of venue and we may look to you for costs. That’s unprecedented.”

It’s unclear whether police agencies consistently follow the steps Montgomery outlines. The letter, dated May 8, says the process “has been in effect, though not having been reduced to writing, for at least the last three years.”

Representatives of police departments in Phoenix, Tempe, Mesa, Scottsdale, Goodyear, Buckeye and Surprise, along with the Maricopa County Sheriff ’s Office, declined to comment about the letter, saying only that they were reviewing it.

Glendale Police Chief Rick St. John said he could see how some might read the letter as a threat. But he said he believes Montgomery was only explaining that his office wouldn’t pay for costs incurred based on another law-enforcement agency’s decision if it was in violation of the policy.

“I think Mr. Montgomery knows that at the end of the day, chiefs of police have the right to release information to the public that we’re not bound to protect under rules of the court,” St. John said. “He has a different set of rules that he’s playing by.”

What the letter says

Montgomery’s letter states that police agencies in the county should confer with the Maricopa County Attorney’s Office after receiving a public-records request in an ongoing criminal investigation — whether the request comes from a news-media outlet or private individual.

A “fair and full review” of the request could show the evidence cannot be released, and the media outlet would be notified its request was denied, the letter says. If a media outlet challenges the decision in court, the County Attorney’s Office — and thus, taxpayers — will cover the law-enforcement agency for fees and costs awarded by the court, the letter says.

If police records are released outside of this process and litigation arises over a possible change in venue for a trial, the county attorney will seek reimbursement of any costs from the police agency involved, the letter says.

The letter says evidence could be released without a public-records request “to further a legitimate law enforcement purpose,” and the County Attorney’s Office will work with the law-enforcement agency to decide what records may be released and in what manner, the letter said.

Records could be released to “prevent imminent civil unrest” or “clarify or correct false or misleading information that has been broadcast through traditional media or social media platforms.”

The letter does not describe a scenario in which police would release full video evidence. It does describe steps to limit release of video. Transcripts or selected details could be shared, it says, or “a select group of community representatives” could review a specific portion of a video.

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