TRANSPARENCY TUESDAY: The “open investigation” that never closes, a frustrating FOI loophole

A few weeks ago, a vigilant reporter for George Mason University’s Broadside newspaper picked up on a one-line entry in a police blotter that turned out to be national news.

The blotter wasn’t very informative — a suspect’s name, a criminal charge, the location of the jail. But it was enough.

Within hours, Broadside had broken the story that the starting point guard on GMU’s men’s basketball squad — a conference champion team coming off a 27-win season and NCAA tournament appearance — was facing charges of credit card fraud and larceny.

The story was unaided by cooperation from George Mason’s police department, which invoked the two words guaranteed to elicit a groan of recognition from any reporter who’s tried to get a police report on a deadline: “Open investigation.”

The public-records law of almost every state entitles journalists to obtain police incident reports from law enforcement agencies, including police on the campuses of public universities. Incident reports contain the factual narrative that is the backbone of effective crime reporting. For instance, in a case like that at George Mason, reporters needed to know: Whose credit cards? How were they obtained? How much was alleged to be stolen? How was the theft discovered? Those facts can be readily gleaned from police incident reports — if the police will part with them.

State freedom-of-information laws typically entitle the police to withhold documents if disclosure would compromise an “open investigation.” These exceptions were meant to apply to confidential information that might, for instance, tip off co-conspirators in a criminal operation who are still on the loose that the police are on their trail.

Frustratingly, many agencies — and not just police, but other investigative agencies — tend to throw around the “open investigation” excuse so loosely that it becomes the rule rather than the exception.

At the extremes, courts can and do curb the misuse of such FOI exemptions. For example, a Wisconsin court ruled in 2008 that police could not justify concealing a file simply because a copy had been turned over to the district attorney’s office for prosecution. But more commonly, courts simply defer to the judgment of the law enforcement agency that withholding is necessary, without requiring much in the way of proof.

For example, the Georgia Supreme Court refused in a 2008 ruling to order police to honor a newspaper’s request for records of a “cold case” involving the rape and murder of a University of Georgia student. Even though the crime was 16 years old and there were no known active leads, the court in Unified Gov’t of Athens-Clarke County v. Athens Newspapers LLC deferred to the police’s dubious classification of the investigation as “pending”:

Requiring a law enforcement agency to segregate documents before a case is solved could result in the disclosure of sensitive information. ? The determination of sensitive or nonsensitive documents often cannot be made until the case has been solved. … It is not for this Court to set arbitrary time limits on how long an investigation can be kept open without tangible progress, when the legislature avoided any such time restrictions.

“Open investigation” should never mean simply that the crime has not resulted in an arrest and conviction. A large percentage of crimes remain unsolved indefinitely — even murders, 35 percent of which go “uncleared,” according to a Scripps Howard News Service study. It would be intolerable to say that the public can never know the details of one out of every three killings, on the grounds that the file has never technically been “closed.”

So, if you are a journalist faced with the “open investigation” stonewall, can anything be done?

Going to court is of course an option. Virginia Tech’s student newspaper, The Collegiate Times, filed suit in 2009 to obtain the police file on the 10-year-old case of a Tech student’s disappearance, arguing that there were no signs the police were actively working the case and that nothing in the file could compromise an investigation that was plainly going nowhere. But the lawsuit is still pending more than two years later with no end in sight, which is always the downside risk of litigating.

Short of going to court, the claim of an “open investigation” should be treated with great skepticism and should invite tough follow-up questioning, the responses to which should be publicized:

  • “So, if this is an open investigation, exactly when will you consider it to be closed? What more would have to happen, exactly?”
  • “Does this mean that you are pursuing other suspects? How are they involved?”
  • “Is it the police department’s usual policy to arrest people that it hasn’t finished investigating yet? Isn’t that risky? What if you finish the investigation and decide he’s innocent?”

In the George Mason case, the power of embarrassment worked — to a point. The police had to acknowledge that, in fact, there was no open investigation and retracted their initial assertion. But they still declined to make the incident report public, noting that Virginia’s law is one of the few that does not expressly require the reports themselves to be disclosed.

Finally, when an investigation truly is over — e.g., when the case goes to trial or ends in a plea — the entire investigative file should then become disclosable, and reporters should follow up and be unafraid to make the police explain themselves if the file reflects zero activity during and after the time police insisted that the investigation was ongoing.