Law Office of Christopher Wencker, PLC
Connect:
  • My Firm
  • Who I Am
  • What I Do
    • Animal Law
    • Civil Litigation
    • Criminal Law
    • Governmental Representation
    • Security Clearances and Background Checks
  • How to Reach Me
  • Animal Law Blog
  • Clean Background Blog
  • Governmental Perspective Blog
  • Law Tech Blog
  • Legal Safety Blog
  • Avvo Answers

Why can't I have that police report?

5/8/2013

0 Comments

 
Picture
Public records, especially those held by law enforcement agencies, are subject to many rules, some of which directly contradict each other.  While the basic rule in Arizona (and most other states with strong public records laws) is that any record held by a public agency is open for inspection by the public, there are some important limits on this rule.  Some are imposed by federal statutes and regulations, some by state statutes and regulations, and some by case law.

As an initial matter, it is important to note that the federal Freedom of Information Act (FOIA) does not apply to state public records.  If you want a police report from your local police department, do not invoke FOIA.  They may give you the report anyway (because the state public records law says they should), but they may deny your request because you cited the wrong statute.

While Arizona's public records law generally gives the public access to any public record, it allows certain information to be withheld or redacted to protect those vulnerable to attack.  Identification and contact information for a crime victim cannot be disclosed.  The home address and home telephone number of certain individuals involved in law enforcement (which can include not just police officers, but also prosecutors, and people who work in this area) is confidential.  Photographs of police officers may only be released in certain circumstances.  Federal risk assessments of infrastructure (such as telecommunications or utilities) are exempt from disclosure.

Information may be withheld for certain important purposes.  For example, the location of an important archaeological find may be withheld to protect the site from vandalism or damage.  If the custodian of a record believes that a record that is requested for commercial purposes (such as to compile a mailing list for business solicitations) will be abused, the custodian may seek an order from the governor preventing the record from being released.  Adoption, severance, and dependency records held by the juvenile court are exempt.

Some information that is considered private and confidential is exempt from disclosure.  For example, some information contained in a public employee's personnel file, such as Social Security numbers and medical information, is protected (but not completely prohibited) from disclosure by federal law.  Disciplinary actions, however, are not confidential, and are required to be disclosed.

Finally, Arizona courts have found that certain records may be withheld if the agency believes that "the interests of privacy, confidentiality, or the best interest of the state in carrying out its legitimate activities outweigh the general policy of open access."  This exception is usually invoked to protect the details of an ongoing police investigation, the identity of a confidential informant, or some other particularly sensitive information.  It is not meant to be a catch-all, however, nor does it give the agency discretion to pick and choose what information it wants to release.  The agency must be able to justify its withholding of information under this exception.  If you don't get the police report you ask for, though, this is probably the reason.

0 Comments

What's the difference between an IGA, an MOU, and a contract?

5/1/2013

1 Comment

 
Picture
Intergovernmental agreements (IGAs) and memoranda of understanding (MOUs) are both contracts.  Basically, a contract is an agreement between two or more people or entities to do something.  While there are special names for various kinds of contracts (such as licenses and bailments), they all have this same basic feature in common.  While IGAs and MOUs commonly appear in a government setting, they really are not particularly different from any other contract.

An IGA is simply a contract between two or more governmental entities who have some sort of common authority.  A typical example of an IGA in my practice is a mutual aid agreement between two fire districts.  This requires each party to the IGA to provide help to one of the fire districts when it encounters an emergency that is too big for it to handle alone.  Because all of the parties are fire districts, and thus authorized to respond to emergencies, they are allowed to enter into an agreement for a joint emergency response.  The only meaningful difference between an IGA and any other contract is that it must be between government agencies that have some power in common.  In Arizona, IGAs are governed by Arizona Revised Statutes section 11-952.

MOUs are commonly considered to be less formal than a "full" contract, but in practice they are just as enforceable as any other contract, and will be held to the same legal standards.  MOUs are commonly encountered between a government agency and a private, non-profit organization such as a workers' union.  They usually have few terms, and may not be expected to have any legal enforcement mechanism -- often, they are intended to be little more than an expression of common goals, without any specific action required.  Despite this intention, many MOUs run more than ten pages and contain such elaborate terms that even seasoned attorneys can become confused.  For this reason, I (and other government attorneys I know) prefer to avoid the term "MOU," because it can give the parties the expectation that the agreement isn't really a contract, when it actually is.

1 Comment

    Author

    Chris Wencker has been advising and representing local and small government entities for as long as he has been an attorney.  He has represented cities, towns, fire districts, and occasionally other special taxing districts.  Chris has a firm understanding of the extent and limits of government power.

    Archives

    January 2014
    July 2013
    June 2013
    May 2013
    April 2013

    Categories

    All
    Constitution
    Contracts
    Elections
    Government Power
    Police
    Public Records
    Searches
    Surveillance

    RSS Feed

    By Chris Wencker
Powered by Create your own unique website with customizable templates.
Photos used under Creative Commons from TheeErin, Abode of Chaos, Gage Skidmore, menj, Life Mental Health, chrismear