We’ve been getting a lot of questions about the Ferguson, Missouri police department’s decision not to release the name of the officer involved in the fatal shooting of 18-year-old Mike Brown. To get some legal answers, we turned to professor Sandy Davidson, who teaches communications law at the Missouri School of Journalism.
Here’s what you need to know:
- While an incident report is considered an open record under Missouri law, that document must legally include: The date, time, specific location, name of the victim and immediate facts and circumstances surrounding the initial report of a crime or incident. (Legal reference: Missouri Revised Statues, Section 610.100, Item 2)
- The officer’s name likely will be included in what is considered an “investigative report.” That’s a report “prepared by personnel of a law enforcement agency, inquiring into a crime or suspected crime, either in response to an incident report or in response to evidence developed by law enforcement officers in the course of their duties.” Investigative records are closed until the case is closed. (Legal reference: Missouri Revised Statues, Section 610.100, Item 2)
- If you want to get information in the investigative file before the case is resolved, you’ll need to go through the circuit court. (Legal reference: Missouri Revised Statues, Section 610.100, Item 5)
- A portion of an open record can be closed and redacted if "it is reasonably likely to pose a clear and present danger to the safety of any victim, witness, undercover officer, or other person." (Legal reference: Missouri Revised Statues, Section 610.100, Item 3)
The key issue here is the potential for negligence and a "foreseeable risk of harm." If reporters sue over the officer's name, the police could continue to argue that releasing that information would put the officer at risk.
So what can reporters do now? "There are sources of information other than the police chief,” Davidson said. "I would be trying to get that information other ways. Don’t rely only on official channels."
But if you do get a good lead, be careful. Journalists can be found guilty of negligence if they publish information that constitutes a foreseeable risk of harm.
Here’s an example: In 1983 the U.S. Supreme Court let stand the Sandra K. Hyde decision. Hyde sued the City of Columbia, Missouri and the Columbia Daily Tribune newspaper for negligent disclosure after her name and address were released to reporters, who then published the information. Hyde had been the victim of a crime (abduction), and she claimed that the release of her information allowed her assailant, who had not been arrested, to stalk her. The Missouri Court of Appeals ruled in favor of Hyde.
A final thought: The Ferguson police chief might not be the person making the final call on the release of the officer’s name, Davidson said. "If you have people like the Attorney General and the Governor, if they weigh in on the side of transparency, I should hope it would have some influence."