dissenting. The majority interprets the Freedom of Information Act as holding that when an investigation of criminal activity by a law enforcement agency is disclosed, the records of such investigation are thereby open to public inspection. The provision, Ark. Code Ann. § 25-19-106(b)(6), a part of the original act, reads:
(b) It is the specific intent of this section that the following records shall not be deemed to be made open to the public by the provisions of this chapter:
* * *
(6) Undisclosed investigations by law enforcement agencies of suspected criminal activity[.]
Granted, the wording could be improved on, but to make the interpretation depend on whether the public knows or doesn’t know that an investigation of particular criminal conduct is underway could hardly be what was intended by this language. It is inconceivable that the legislature meant that police records of a highly sensitive criminal investigation, whether ongoing or concluded, become subject to public inspection in their entirety based on whether the investigation itself is disclosed or undisclosed.
Every major crime in this day and age is widely publicized by the media and most are investigated, often with periodic statements by the police relative to the progress of the investigation. If I read the majority opinion correctly, such investigations are now subject to the perusal of anyone who cares to inspect police files, however sensitive.
It is an understatement to suggest that this decision does not bode well the future of effective criminal investigative work by law enforcement agencies. The dangers inherent in the untimely disclosure of criminal investigations were cited by the Massachusetts Supreme Court in Bougas v. Chief of Police of Lexington, 354 N.E.2d 872 (Mass. 1976)1 in a factually similar setting:
The exemption . . . recognizes that the disclosure of certain investigatory materials could detract from effective law enforcement to such a degree as to operate in derogation, and not in support, of the public interest. Included among the purposes in providing this exemption would be the avoidance of premature disclosure of the Commonwealth’s case prior to trial, the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypothesis and interim conclusions.
What the provision in our act undoubtedly means is that when an investigation is of a type, or at a point, where nondisclosure is not crucial to the investigation, such records are no longer exempt. While we are bound to construe legislation in a manner consistent with the common and ordinary meaning of the language used, Bolden v. Watt, 290 Ark. 343, 719 S.W.2d 428 (1986), we are not required to abandon our common sense or to adopt a literal interpretation which leads to an implausible result. Woodcock v. First Commercial Bank, 284 Ark. 490, 683 S.W.2d 605 (1985); Berry v. Gordon, 237 Ark. 547, 376 S.W.2d 279 (1964).
I do not suggest that such records should be given blanket, automatic exemption from the act. Rather, when the disclosure of information would no longer be inimical to the investigation, or prejudicial to effective law enforcement, the exemption should be lifted. See Watkins, Access to Public Records Under The Arkansas Freedom of Information Act, 37 Ark. L. Rev. 741 (1984). In this particular case the appellee should be able to gain inspection of the records under federal discovery procedures. I respectfully submit the trial court should be affirmed on cross-appeal.
Holt, C.J., joins.The Massachusetts exemption (G.L.c. 4 § 7) excludes “(f) investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.”