The city of Jackson denied a public records request for a copy of the police incident report for Senator John Horhn's recent DUI arrest submitted by this website. City Attorney Latrice Westbrook stated in an email denying the request:
I am denying all requests for this matter (as this case is still under investigation). The report that was released was done so without authorization. I will inform you if my decision changes.
If Ms. Westbrook is going to masquerade as an attorney, she might want to learn what the law actually says. Section 25-61-12 of the Mississippi Code states:
(2) (a) When in the possession of a law enforcement agency, investigative reports shall be exempt from the provisions of this chapter; however, a law enforcement agency, in its discretion, may choose to make public all or any part of any investigative report.
(c) Nothing in this chapter shall be construed to exempt from public disclosure a law enforcement incident report. An incident report shall be a public record. A law enforcement agency may release information in addition to the information contained in the incident report.
You may remember the city of Jackson pulled a similar stunt on the Heather Spencer case when JJ filed a public records request for that police incident report. In fact, the Ethics Commission ruled (citation: public records opinion no. R-08-002) in this website's favor and said the city could not use an exemption for investigations:
In the 2008 Regular Legislative Session, the Legislature amended Section 25-61-3 of the Act to create definitions of “incident report” and “investigative report.” Prior to these amendments, these terms were not specifically defined in the Act, although reports related to criminal investigations were protected from disclosure under Section 45-29-1, Miss. Code of 1972.
2.2 According to the Act, an “incident report” is a narrative description of an alleged offense if such description (1) exists and (2) does not contain investigative information. See Section 25-61-3(e). The statutory definition also specifies that an incident report includes, at a minimum, the name and identification of each person charged with and arrested for the alleged offense, the time, date and location of the alleged offense, and the property involved, to the extent the information is known. Nothing in the Act requires a public body to create a document labeled “incident report” and it is clear from the Act that the contents of a document determine whether it is an incident report. In other words, the title of a document is of very little, if any, significance when compared to the contents of the document.
2.3 An “investigative report” is defined under the Act as a record of a law enforcement agency containing information beyond the scope of the matters contained in an incident report. See Section 25-61-3(f). The Act delineates certain types of records that are considered investigative reports if those records are “beyond the scope of the matters contained in an incident report.” Id. The Act also defines a “law enforcement agency.” See Section 25-61-3(g).
2.4 The statutory definitions of “incident report” and “investigative report” are important
because documents that are investigative reports are clearly exempt from production under the Act, while documents containing a narrative description meeting the definition of an incident report are clearly public records subject to production. See Section 25-61-12(2)(a) & (c). The Commission also notes that nothing in the Act prohibits a public body from producing investigative reports, and the Act states a preference for production of all public records. See Section 25-61-12(2)(a) & (c); Section 25-61-1; and Section 25-61-2..
2.7 As it applies to the instant dispute, Jackson has in its possession documents that contain investigative information. Clearly these documents are exempt from disclosure pursuant to Section 25-61-3(f). However, these exempt documents admittedly contain informationthat meets the statutory definition of “incident report” under Section 25-61-3(e). To comply with the mandate in Section 25-61-5(2) as well as the public policy codified throughout the Act, Jackson must redact the exempt investigative material from the documents and produce the nonexempted incident report information. Failure to do so is a violation of the Act.
Such a gross violation of the law makes it appear the city is trying to protect Senator Horhn from further embarrassment. Ms. Westbrook's decision is in clear violation of the law. JJ is reviewing all possible remedies. Stay tuned.