concurring. I concur in the result reached by the majority of this court. However, I write to offer an additional compelling reason for affirmance.
This court is committed to the proposition that openness in government is an essential ingredient in a democratic society. The legislative act which furthers that objective, the Freedom of Information Act, Ark. Code Ann. §§ 25-19-101 through 25-19-107 (1987 & Supp. 1989), is commendable and should be liberally construed to give full effect to its purpose. McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989). When, however, any proceeding under the guise of freedom of information would likely hinder or impede in any manner the constitutional right of an accused to a fair trial, see Anderson v. State, 278 Ark. 171, 644 S.W.2d 278 (1983), then the provisions of the Freedom of Information Act must give way.
Admittedly, it is the task of the media not only to report information gathered from all available sources but also to comment upon that information by way of editorials and opinion columns and frequently, the editorializing is not limited to the section reserved for editorial comment. This is a fact of life that all who qualify as “public figures” understand and live with.
In this case, the constitutional right to a fair trial collides head to head with the public’s right to know through the statutory provisions of the Freedom of Information Act.
Anyone who has had an opportunity to review a law-enforcement agency’s investigation file knows that in many instances that file contains a hodgepodge of tips, rumors, suppositions, and hearsay — much of which may already have been or ultimately will be, determined to have no basis in fact. Such is the very nature of an “investigation” file. Moreover, much of the information, though possibly having the ring of truth, will also be found inadmissible at any trial of the case on its merits.
Assume for the moment that the investigation file is opened to the media. There can be little doubt that all of the contents of the file will be subjected to total exposure and complete scrutiny by the media, both in news reports and editorial columns, with little or no fear of accountability under the First Amendment protection afforded the media.
On the other hand, assume that the attorney for the accused may well have in his file a good and sufficient explanation or defense for each of the items of media interest contained in the investigation file. Yet, the Code of Professional Conduct Rule 3.6 prevents him from trying the defendant’s case in the media. The defendant is therefore faced with the worst-case scenario — having his or her file, with all inferences pointing to guilt, presented to the public, without rebuttal, at a time when he or she is entitled to the full and complete benefit of the constitutionally guaranteed presumption of innocence.
One may then ask why the defendant, absent his attorney, cannot refute all of the information reported from the investigation file. On the other hand, in preservation of his constitutional rights, why should he have to make such an explanation other than at trial? The answer is, of course, that he should not.
An individual’s constitutional right to a fair trial dictates that the public’s legislatively-enacted right to know be subordinated for so long as the constitutional rights of the individual may be in jeopardy.
Dale Price, Justice, concurring. The result reached by the majority is correct. It does not, however, address other issues argued on appeal concerning the Arkansas Freedom of Information Act (FOIA). The first issue concerns the application of the FOIA to the investigative file of the state police. In order for a record to be subject to the FOIA and available to the public, it must be possessed by an entity covered by the act, fall within the act’s definition of a public record, and not be exempted by the act or other statutes. Legislative Joint Auditing Committee v. Woosley, 291 Ark. 89, 722 S.W.2d 581 (1987). This court has said on many occasions that the FOIA should be broadly construed in favor of disclosure, and exemptions construed narrowly in order to counterbalance the self-protective instincts of the governmental bureaucracy. McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989).
In the instant case the appellees contend the investigative file at issue is not a public record. The state police investigative file clearly constitutes a public record under the FOIA and as defined in Ark. Code Ann. § 25-19-103(1) (1987). In the alternative, the appellees argue the file falls within two of the exemptions enumerated in Ark. Code Ann. § 25-19-105(b)(6)(8) (Supp. 1989). I agree.
The law enforcement exemption in § 25-19-105 (b)(6) provides that “undisclosed investigations by law enforcement agencies of suspected criminal activity” are not subject to public inspection. This exemption has been construed by this court in several opinions. In City of Fayetteville v. Rose, 294 Ark. 468, 743 S.W.2d 817 (1988), we held that information contained in investigations conducted by the City of Fayetteville police and fire departments was not undisclosed and thus not exempt from release.'We said:
There was no ‘undisclosed investigation.’ Everyone knew about it. The Fire and Police Departments of Fayetteville had finished their investigation. The federal Bureau of Alcohol, Tobacco, and Fire Arms had investigated the matter, turned its report over to the U.S. attorney’s office, and a federal grand jury had returned an indictment. No reading of the Freedom of Information Act consistent with our decisions could support a finding that there was an ‘undisclosed investigation’ involved. Therefore, the records held by the fire and police departments are subject to disclosure under the Freedom of Information Act.
We stated in McCambridge v. City of Little Rock, supra, that “ [t]he only purpose of the exemption, as written, is to prevent interference with ongoing investigations.” We held there that photographs of the crime scene and a pathologist’s photograph made in connection with a police investigation were to be released in accordance with the FOIA. We also held the police file was subject to release despite the fact that it allegedly contained statements from confidential informants.
The investigative files at issue in City of Fayetteville and McCambridge had to do with completed police investigations. The opposite situation was presented in Martin v. Musteen, City of Rogers and Clinger, 303 Ark. 656, 799 S.W.2d 540 (1990). Pinson (Martin was Pinson’s attorney and the appellant) was charged with drug violations and his attorney requested the police investigation file with respect to the charges against Pinson. Following the police chiefs refusal to release the file, Pinson’s attorney brought action pursuant to the FOIA. At the hearing, the police chief characterized the investigation as an “ongoing” one. The prosecutor testified that Pinson’s case was part of a larger investigation and that it would continue for some time. We held that if a law enforcement investigation remained open and ongoing, it was meant to be protected as undisclosed under the FOIA.
In the case at bar the appellants contend the state police investigative file was not exempt under the law enforcement exemption. I disagree. It is my opinion that a law enforcement agency’s file is not disclosed merely because the press has published articles concerning the matter or everyone knows about it. If an investigative agency discloses a file, it obviously is not exempt under the FOIA. It also follows that the file does not necessarily become disclosed after a criminal conviction or acquittal. The file may still contain information not subject to disclosure under the FOIA.
In my view, an accused must have been acquitted or have exhausted the appeal process before a law enforcement agency’s file is subject to the public’s inspection and then only after the court determines whether there are other matters requiring protection from disclosure. These matters include, but are not limited to, (1) the right of another person to a fair trial, (2) privacy rights of individuals which should be protected, (3) the identification of confidential informants, (4) law enforcement techniques and procedures, (5) the safety of law enforcement personnel, and (6) the names of persons interviewed by police so that others will not be deterred from cooperating with police in the future. See J. Watkins, The Arkansas Freedom of Information Act (1988). The investigative file of a law enforcement agency would then be subject to disclosure under the FOIA following the above procedure.
In construing the law enforcement exemption, it is my opinion this court has erroneously applied an “ongoing” investigation distinction. The statutory exemption clearly provides that “undisclosed” investigations are not subject to public inspection. “Undisclosed” means what it says; that is, the contents of investigations which have not been made known by the law enforcement agency. Accordingly, to the extent that our holdings in City of Fayetteville and McCambridge are in conflict with this concurring opinion, I would overrule them. I would, therefore, hold that the law enforcement exemption prevented public inspection of the state police investigative file in this instance.
The next question to be addressed is whether or not the state police investigative file is exempt from disclosure under Ark. Code Ann. § 25-19-105(b)(8), which provides that “documents which are protected from disclosure by order or rule of court” are not subject to public inspection. I would also hold the file is exempt from disclosure pursuant to the above. Clark filed a motion in the criminal proceeding to have the file protected and ordered sealed. This was done simultaneously with the filing of criminal charges, and a hearing was conducted on both Clark’s motion and the appellants’ petition for review. An order was entered on July 13 which closed the police investigative file and all other investigative agency files from the public. This order clearly is the type contemplated by the General Assembly in its enactment of § 25-19-105(b)(8), and the state police investigative file is, therefore, not subject to disclosure pursuant to this exemption in my opinion.
The last issue concerns whether or not the trial court erred by expanding its order to close the files of all investigative agencies, including the legislative audit, until after Clark’s trial. The appellant formally requested access to the state police investigative file, and there was no discussion of other investigative files at the hearing on July 12. The trial court entered its order on July 13 stating:
Therefore, it is the order of this Court that the investigative file regarding this defendant be closed and not made public and that the Prosecuting Attorney, all investigative agencies, including the Arkansas State Police, and Legislative Audit, close their files to the public and that they remain closed until a trial on the merits of this matter has been held.
The appellants filed their petition to modify, asking the court to modify its order to conform to the action actually announced at the hearing on their petition for review on July 12. They contended at the hearing on their petition to modify that the court’s order was much broader than the court’s ruling from the bench. Evidence was adduced at the hearing on the appellants’ petition to modify which established that the state police had shared their investigative file with the auditors who were preparing their own investigation and audit of Clark.
I would hold the trial court’s denial of the appellants’ petition to modify was proper and its order of July 13 was not impermissibly overbroad. The trial court’s action in effect granted Clark’s motion to seal all records relevant to his trial. This was necessitated in part by the joint investigation of both the Arkansas State Police and the legislative auditors, and I cannot say the trial court erred.