Sheridan Newspapers, Inc. v. City of Sheridan

ROONEY, Chief Justice,

concurring in Case No. 5724 and dissenting in Case No. 5725, with whom RAPER, Justice, joins.

At the outset, I want to emphasize that I believe the City1 acted improperly in denying to the Newspaper2 access to general information contained in its records. This right to access is specifically and positively set forth in the Wyoming Public Records Act, §§ 9-9-101 through 9-9-105, W.S. 1977 (now §§ 16-4-201 through 16-4-205, W.S.1977, 1982 Replacement). I disagree with the dicta in the majority opinion which would extend by judicial fiat the perimeters of the right of access beyond that specifically set forth in such act.

I agree that access cannot be denied to entire categories of records simply because one or more of the items therein may be that to which access can properly be denied. However, if the category includes only that to which access can properly be denied, access to the category itself can properly be denied, e.g. a category of pending investigative matters. In this instance the “rolling log” record and “case report” record were categorized types of records containing information other than that excepted by statute from public access, and the City could not properly deny access to them.

If the City first recorded incoming calls and complaints on index cards which were directed into an area of specific action whereby the investigative or intelligence information was immediately separated, there could be a different result. Today, the initial information can be computerized to obtain the same end. Investigative and intelligence information can be immediately segregated, and access to the specifically segregated information can properly be denied. Such was not done in this instance, and the City’s action was contrary to that required by the Wyoming Public Records Act.

My basic disagreement with the majority opinion is the establishment by it of a re*802quirement over and beyond the statutory requirement for denying access to police investigative reports3, intelligence information 4, and security procedures. The statutory language with reference to police records is plain and unambiguous:

“(b) The custodian may deny the right of inspection of the following records, unless otherwise provided by law, on the ground that disclosure to the applicant would be contrary to the public interest;
“(i) Records of investigations conducted by, or of intelligence information or security procedures of, any sheriff, county attorney, city attorney, the attorney general, police department or any investigatory files compiled for any other law enforcement or prosecution purposes.” Section 9 — 9—103(b)(i), W.S. 1977 (now § 16-4-203, W.S.1977, 1982 Replacement).

In construing a statute, its words must be given their plain and ordinary meanings, Jahn v. Burns, Wyo., 593 P.2d 828 (1979); Schwager v. State, Wyo., 589 P.2d 1303 (1979); Belco Petroleum Corporation v. State Board of Equalization, Wyo., 587 P.2d 204 (1978). When a statute is clear and unambiguous, there is no need to resort to rules of construction and the court may not look for or impose another meaning. Board of County Commissioners of County of Campbell v. Ridenour, Wyo., 623 P.2d 1174, reh. denied 627 P.2d 163 (1981); State v. Sinclair Pipeline Company, Wyo., 605 P.2d 377 (1980); and Hayes v. State, Wyo., 599 P.2d 558 (1979).

The statute provides in plain, simple language that the custodian may deny the right to inspect police (1) records of investigation, (2) intelligence information, or (3) security procedures on the ground that disclosure would be contrary to the public interest. In other words, once inspection of the specific type of record is requested, denial to do so can be made on the ground that such would be contrary to the public interest. The custodian need not exercise additional discretion. The legislature has decided that these types of records fall into the status whereby inspection would be contrary to the public interest, and that inspection of them may be denied for that reason. The majority opinion would require the custodian to decide whether or not these records are such that inspection would be contrary to the public interest. The legislature has already made this decision. In the absence of statute, police records are generally held to be confidential, Whittle v. Munshower, 221 Md. 258, 155 A.2d 670 (1959), cert. denied 362 U.S. 981, 80 S.Ct. 1069, 4 L.Ed.2d 1016 (1960). Our statute relaxes this confidentiality, but only to the extent set forth in the statute. It specifies that only information from investigative reports, intelligence information and security procedures is to be in the realm of that which disclosure would be contrary to the public interest. Therefore, disclosure to such information may be denied on that basis without more.

Of course, labeling information as “investigative” or “intelligence” or “security procedure” does not make it so. One seeking information is entitled to a court determination of the propriety of such labeling. This determination can be made in camera or otherwise. Conway v. United States Internal Revenue Service, 447 F.Supp. 1128 (D.C.Cir.1978). 5 U.S.C. § 552(a)(4)(B) specifically permits in camera examination under the federal act at the discretion of the court. In this instance, the records in question may have contained some investigative *803or intelligence matters, but that fact would not prevent access by the Newspaper to the records. If City wanted to prevent disclosure of such investigative and intelligence matter, it should not have been included in the broad category with many other types of information. For this reason, I concur in the result reached by the majority opinion in Case No. 5724.

I dissent from the result reached by the majority opinion in Case No. 5725 because I believe the trial court added requirements to those set forth by statute for denying access to police investigative reports, intelligence information and security procedures. The statute does not require “extraordinary circumstances,” “good cause shown” or a limitation on time for denial of access. As already noted, the statute is plain in setting forth the requirements. They are not to be enlarged by judicial legislation.

Take an example. Information is requested concerning security procedures taken by the police acting in cooperation with the secret service for protection of the president on a visit to the city. All the custodian of the records need write in refusing such access is that the disclosure would be contrary to public interest. On challenge in court pursuant to statute and with reference to statutory requirements, the court need only satisfy itself that the information was of security procedures. It would be unnecessary to decide whether or not the placing of guards at specific points was in the public interest; whether or not back-up personnel was being strategically placed in the public interest; whether or not crowd infiltration was needed and in the public interest; whether or not dog-assisted inspection of a meeting place was in the public interest, and so on.

With the requirements added by the majority opinion, the custodian would also have to show “good cause” to place personnel on roof tops and other places, to infiltrate the crowd, to search the meeting place, etc. He would have to show extraordinary circumstances in protecting this visit as distinguished from other presidential visits. He could limit access for only a limited time even though the same procedures are used for other visits and lose much of their efficacy if they become well known.

I believe the plain words of the statute set forth the requirements for refusing disclosure and an effort to enlarge or embellish such is improper. For this reason, I dissent from the majority opinion in Case No. 5725.

. Appellee in Case No. 5724 — appellant in Case No. 5725 is referred to herein as “City.”

. Appellant in Case No. 5724 — appellee in Case No. 5725 is referred to herein as “Newspaper.”

. Investigative records are those compiled for law enforcement purposes through inquiry, information or observation. See Williams v. Internal Revenue Service, 345 F.Supp. 591 (D.C. Del.1972), aff’d 479 F.2d 317, cert. denied 414 U.S. 1024, 94 S.Ct. 448, 38 L.Ed.2d 315 (1973); and Stein v. Department of Justice and FBI, 662 F.2d 1245 (7th Cir.1981).

. Intelligence information is that obtained from sources which would provide information only on a confidential basis or that pertaining to matters or persons believed to be furnished only if kept confidential to such matters or persons. See Alfred A. Knopf, Inc. v. Colby, 509 F.2d 1362 (4th Cir.1975), cert. denied 421 U.S. 992, 95 S.Ct. 1999, 44 L.Ed.2d 482, reh. denied 422 U.S. 1049, 95 S.Ct. 2669, 45 L.Ed.2d 702 (1975); Sims v. Central Intelligence Agency, 642 F.2d 562 (D.C.Cir.1980).