FORT SMITH -- A judge said Friday he will decide in the next week whether Arkansas State Police violated the state Freedom of Information Act in refusing to release police dash-cam video of traffic stops that led to criminal charges.
Sebastian County Circuit Judge Stephen Tabor heard testimony and argument on a lawsuit filed Feb. 10 by Fort Smith attorney Whitfield Hyman after state police denied his Freedom of Information Act requests for video from police dashboard cameras.
In five of the six cases for which Hyman sought the videos, state police spokesman Bill Sadler denied their release, saying the videos were exempt from the public records act because they were involved in ongoing investigations.
Sadler referred to subsection 25-19-105(b)(6) of the Arkansas Freedom of Information Act of 1967 that exempts from disclosure "Undisclosed investigations by law enforcement agencies of suspected criminal activity."
The courts have included in the definition of undisclosed investigations those that are open and ongoing, according to a brief filed Friday by the Arkansas attorney general's office, which represented Sadler and the state police in Friday's hearing.
In his lawsuit, Hyman writes that he was trying to get the state police dash-cam video for one of his clients for a driver's license control hearing.
In the other cases, he was representing clients in criminal cases involving a variety of charges, including driving while intoxicated, possession of drug paraphernalia and carrying a weapon.
Hyman argued in the suit that the criminal investigation ceased at the time of the clients' arrest and that the dash-cam videos were no longer exempt from release.
The attorney general's lawyers argued that the state police's policy for decades has been that an investigation was ongoing until the defendant was convicted or acquitted in court, or until the prosecuting attorney dropped the charges.
Because prosecutors often ask the state police to conduct further investigation once arrests are made and charges are filed, it would be inconsistent to have a rule closing an investigation at any time before adjudication, Senior Assistant Attorney General Colin Jorgensen told Tabor on Friday.
In his lawsuit, Hyman referred to an attorney general's opinion in 1998 that said "The question of whether a particular investigation is 'ongoing' is a question of fact that must be decided on a case-by-case basis."
In comments to Tabor, Hyman wondered whether an assertion by police that an investigation was ongoing was sufficient proof to invoke the exemption.
He also argued that dash-cam videos don't necessarily have value as evidence to justify exemption from release, noting that other police records, such as jail logs and arrest records, were not exempt from release under the Freedom of Information Act.
As Tabor was closing Friday's hearing, he questioned Hyman about a similar case of his out of Pulaski County that Hyman had appealed. The Arkansas Court of Appeals has not yet ruled on that case, Hyman told Tabor.
Lawyers with the attorney general's office mentioned the case in a footnote in the trial brief they submitted to Tabor.
Hyman sued the state police in Pulaski County Circuit Court, claiming a violation of the Freedom of Information Act after the denial of his request for a dash-cam video in a driving-while-intoxicated case.
The circuit judge rejected Hyman's lawsuit as moot because his defendant had pleaded guilty, which removed the exemption for the video's release.
In his appeal brief, Hyman states, in part, that the circuit judge failed to recognize that the state police violated the Freedom of Information Act because it took more than a month to respond to Hyman's initial request for the dash-cam video.
Metro on 03/04/2017