This is a Freedom of Information Act case. Ark. Code Ann. § 25-19-105 (1987). The issue is whether the records of an investigation of Steve Clark, conducted by the Arkansas State Police and other investigative agencies, should be closed to the public. The trial court held that the investigative file was closed to the public until after Clark’s trial. It specifically found in its order that continued publicity would impair the court’s obligation to provide Clark with a fair and impartial trial by a jury. We agree.
On July 11, 1990, appellant Max Brantley, Assistant Managing Editor of the Arkansas Gazette, requested the investigative file concerning Steve Clark from appellee Colonel Tommy Goodwin, Director of the Arkansas State Police, and appellee Christopher C. Piazza, Prosecuting Attorney for the Sixth Judicial District. The request was initially denied by Colonel Goodwin. Brantley was subsequently notified by the prosecuting attorney’s office that it would make the requested records available on July 13, 1990, at 10 a.m. for inspection at the prosecutor’s office. Criminal charges were filed against Clark, and he, simultaneously, filed a motion seeking to have the investigative file protected from disclosure and ordered sealed. Appellant, Arkansas Gazette Company, was informed by the prosecutor’s office that it intended to fully support Clark’s motion.
As a result, the appellants thereafter filed their petition for judicial review, requesting that the trial court conduct a hearing to determine if the investigative files of the state police were public records subject to public disclosure under the Arkansas Freedom of Information Act (FOIA). A hearing was conducted on the appellants’ petition on July 12, and the trial court denied the petition. The court’s written order of July 13 recited in part that all investigative agency files regarding Clark were to be closed until a trial of Clark was held. The appellants filed a petition to modify, asking the court to modify its order to conform to the action which was actually announced by the court from the bench at the conclusion of the hearing on the appellants’ petition for review on July 12. The petition to modify was denied.
The appellants argue the investigative file is a public record under the FOIA and there are no applicable exceptions which would prevent its disclosure. They further contend the trial court erred in expanding its order to close the files of all investigative agencies, including the legislative audit, until after Clark’s trial.
The appellants’ petition for review was assigned to Judge Perry V. Whitmore, who was also the assigned trial judge in Clark’s criminal prosecution. On July 12, the parties agreed to consider both the appellants’ petition for review and Clark’s motion in the criminal proceeding. The record reflects the parties argued their respective positions before Judge Whitmore primarily on the basis of whether or not the release of the investigative file would deny Clark’s due process rights to a fair trial. The appellants contended at the hearing that the public interest in having access to the file outweighed Clark’s right to a fair trial. Appellee Piazza relied upon Rule 3.8 of the Model Rules of Professional Conduct (1985), for the proposition that, as a prosecutor, he could not disseminate the requested file to the appellants. The trial court denied the appellants’ petition on the basis that continued publicity would impair its obligation to provide Clark a fair trial by an impartial jury.
The Due Process Clause of the fourteenth amendment guarantees the right of a fair trial by a panel of impartial jurors to the criminally accused in state criminal prosecutions. Duncan v. Louisiana, 391 U.S. 145 (1968). If, due to pretrial publicity, an impartial jury cannot be seated to try a defendant, his right to a fair trial is violated. Anderson v. State, 278 Ark. 171, 644 S.W.2d 278 (1983); Swindler v. State, 267 Ark. 418, 592 S.W.2d 91 (1979).
In this case, the high level of publicity and media attention threatened to interfere with Clark’s right to a fair trial. In Gannett Co. v. DePasquale, 443 U.S. 368 (1979), the Court stated that, in order to safeguard the due process rights of the accused, a trial judge has an affirmative duty to minimize the effects of prejudicial pretrial publicity, and he may take protective measures even when they are not strictly and inescapably necessary. See also Sheppared v. Maxwell, 384 U.S. 333 (1966).
In discharging his duty, the trial court weighed Clark’s constitutional right to a fair trial against the public’s right to access to public records as provided for in the FOIA and, in exercising his authority under Ark. Code Ann. § 29-19-105(b) (8) (Supp. 1989), concluded a reasonable protective measure was warranted by the circumstances: the closing of the investigation files of the state police and the files of all investigative agencies, including the legislative audit.
This court has previously noted, “ [i] f the question is whether a defendant can or cannot receive a fair trial, as required by the fourteenth amendment to the United States Constitution, then conflicting law must give way to a defendant’s right to due process.” Anderson v. State, supra. Suffice it to say, FOIA must give way in this instance to “due process.”
Affirmed.
Turner and Price, JJ., concur. Glaze, J., dissents.