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Mac Murphy, FOIArkansas Project

CONWAY — The two main players in a landmark Arkansas Supreme Court decision involving access to public records find themselves in different jobs in a different city — the same different city — more than eight years later.

And, they still hold opposing views on the court’s finding.

In late 1990, an ongoing dispute between the Pine Bluff Commercial and the city’s police department over access to public documents erupted when the police chief refused to reveal to the newspaper the identity of a man arrested for murder and held in the local jail.

Mike Hengel, now publisher of the Log Cabin Democrat in Conway, was editor of the newspaper in Pine Bluff. Bobby Brown, now an investigator with the Faulkner County Sheriff’s Office in Conway, was police chief in Pine Bluff.

“We just could not release that information,” Brown said in a recent interview. Police had arrested one suspect in association with a Dec. 13, 1990, murder; but another was being sought, he said. “Would the public rather know who that person (the man arrested) is or would they rather us wait and capture the other person?” Brown asked.

“We had been having some problems with the police department not being that forthcoming with information,” Hengel said in a separate interview. “We didn’t want to make that big a deal out of it.”But when the identity of the man arrested and in jail was withheld, the newspaper and its corporate attorney at the time, David Olive, believed legal action was necessary.

A reporter at the Pine Bluff Commercial who had learned of the arrest ran into several obstacles when attempting to obtain information. First, the paper was told it would have to wait until 8 a.m. the next business day to obtain any records. Brown and the police department later declined to release any information about the arrest because they said the records were part of an ongoing investigation.

“Undisclosed investigations by law enforcement agencies of suspected criminal activity” are among the specific exemptions to the state Freedom of Information Act’s open records provision.

A reporter was allowed to inspect the jail log the next regular business day; however, the name and address of the person arrested as a suspect in the murder had been blacked out.

Hengel and Stephens Media Group, owner of the Commercial, insisted that the information they were requesting be opened for inspection and that it be available for inspection around the clock since the police department is open 24 hours a day, and filed a suit with those demands.

Jefferson County Circuit Judge Randall L. Williams found that the jail log, shift sheet, incident reports, arrest records and all other reports and records kept in the usual operation of the police department were public records. He also ruled that such records should be available for public inspection from 8 a.m. to 4 p.m. Monday through Friday, excluding holidays.

However, the judge further ruled that the failure to release such information in this particular case was justified because it would have jeopardized an ongoing investigation. Therefore, the records fell under the “undisclosed investigation” exception to the state’s Freedom of Information Act, he said.

“We just got hammered in circuit court,” said Hengel, “and had to live with that decision for a year.”

Hengel and the newspaper continued to push the issue by appealing it to the state’s highest court.

Olive, the attorney, said he knew the case was turning in the newspaper’s favor when one of the justices asked during oral arguments before the Supreme Court whether police would withhold information from him or his family if he or a family member had been arrested.

“That was the very heart of what we were talking about,” Olive said.

Hengel said that revelation was an important turn of events for both the public and the media.

“We (the media) have no more right to the information than anyone else,” he explained. “But, we also have no less right.”

Brown still sees it differently. “Telling the parents is different from telling the newspaper,” he said.

In 1991, the Supreme Court justices unanimously reversed the lower court’s ruling, finding:

• The jail log, arrest record and shift sheets are not “sufficiently investigative in nature to qualify for the exemption” spelled out in the FOIA. They “are not records containing undisclosed law enforcement investigations and are subject to disclosure.”
• ”To expunge, excise or alter in any way information open to public inspection is a denial of the rights granted by the FOIA.” Thus, the blacking out of information on these records is in violation of the act.
• Because the Pine Bluff Police Department operates 24 hours a day, seven days a week, records “must be available for reasonable inspection at all times during those hours of operation.”

Despite the high court’s ruling, Brown still believes he was right to withhold the information.

“I know I was in the right because we had a killer on the loose and we wanted to catch him,” he said. There was no proof offered to the Supreme Court regarding the existence of another suspect, nor were there any other arrests made related to the murder case.

Hengel and Olive remain pleased by the Supreme Court’s precedent-setting ruling that Olive considers crucial to freedom of information.

“The ruling, had it gone the other way, could have strictly restricted access to a vital part of government — the ability to deprive citizens of their liberty,” Olive said.

“There’s always been an ongoing tension between the press and law enforcement,” he said. “This would have seriously tilted the balance.”