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When is a non-exempt record exempt?  When is a record claimed exempt non-exempt?  These questions are raised with the inconsistent positions being taken by the St. Louis County Police Department regarding public records requests for the still unreleased “Incident Report” of the shooting of Michael Brown.  (Ironically – the “Incident Report” of the alleged robbery prior to the shooting has been widely disseminated by the St. Louis County Police Department).

UPDATE: Interview Regarding the Request and the Records Obtained

The ACLU of Missouri filed a public records request for this very Incident Report on August 12th.  [See the ACLU request and denial here].

On August 13th they were denied the request in writing.  The statement was that it was exempt because “There is an on-going investigation” at this time.

But this is not a valid exemption – and the Police Department and its officials knew it.  The only thing exempt under Missouri’s public records law, during an open-investigation, is the “report of the investigation.”  The fact that other records, including pre-existing public records, are used in or may be used in an investigation does not render them thus exempt under the law.

This is a game that is played across the country with police officials who do not like or respect the public’s right to know and the public records laws.  It  was an anticipatable response.  But it is still an unlawful response.  If it was not plainly obvious from the law – the fact that the other Incident Report, also a part of the investigation into the shooting incident, was widely and freely distributed make it so.  It also shows the true motivation behind its selective distribution and the denial of the other.  The police are engaged in a conscious effort to CONTROL the information so as to portray the event in the light THEY have chosen.  A presumption, from the start, that the shooting and killing was “justified.”  The alleged robbery incident portrayed the shooting victim in a bad light – so it was released to the public.  The Incident Report in the shooting, if released, would force all future claims of justification to “fit” that report – so it was not released.  This meant that, when released, an Incident Report that was fully in line with the Investigative Conclusions could then be released.  It is for this very reason that the public records law exists – because the the release, now, of the Incident Report could be used to hold those officials to account for what follows.  And those officials do not appreciate being held, by the public, to account.

As many of you know I have argued that the Incident Report is NOT exempt, it is a free-standing public record existing prior to any investigation, and that the ongoing investigation into the incident does not exempt the incident report from the public records law and its disclosure provisions. The only thing that IS exempt – is the report of the investigation – not the incident report or even any other pre-existing pubic record that MAY come into the investigation.

Therefore yesterday I filed a public records request for the Incident Report – and included in it a statement to the effect of what I said above: this is NOT a request for the exempt Investigation.

As many know I also invoked a tactic never before tried with public records in the face of defiant officials/agencies. I turned this into a “Global” public records request – by asking OTHERS to file the SAME request.

As of this morning MORE THAN ONE HUNDRED requests for this record were sent.

To follow up on this request I contacted Lt. Jeff Burk, the Commander of the St. Louis County Police Department Central Records Division.

I just got off the phone with Lt. Burk. Strangely enough – he stated to me he did NOT receive my request. He added – their email just got back on line about an hour ago. I asked him then if it was likely that the hundred odd requests would then show up soon. He stated it is more likely that they have “disappeared.” I stated to him that we have a problem. (I don’t know what would cause the emails to “disappear” – most of the time with a problem with the email – the emails would, at most, be delayed). The whole story is suspicious. I state to him I would RESEND my request – and contact the hundred plus others and ask them to do THE SAME.

I then stated to him I wanted to make SURE he did not MISUNDERSTAND what I was requesting. I told him I wanted the “Incident Report.” I stated that I was NOT ASKING for the “Report of the Investigation” and that the two are distinct. I stated the “Incident Report” IS a public record and no exemption exists to preclude it from being released.

He asked me if I knew what was in an incident report. I told him yes and that I knew that some information would legally be redacted (such as home addresses, etc.).

I told him that I did not want to get a response such as that he sent to the ACLU – claiming this record was exempt.

Lt. Burk told me that I was correct – the “Incident Report” was not exempt – and that he would provide it. Unfortunately – this is what should have been done before sending, in writing, the denial to the ACLU.

So now I am calling on all those who sent requests for this record – to resend it – to ensure your request is among the growing number for this record.

————- UPDATE ————
Tuesday,  11 am.


UPDATE: I spoke with Lt. Burk of the St. Louis County PD this morning. After some discussion – the phone went dead (nothing sinister – its just that the connection was lost) – he immediately emailed me to let me know.


Two important facts:


1) He stated, again, emphatically and unambiguously that “The Incident Report IS a Public Record under Missouri’s Sunshine Law.”


2) He said the following regarding when I can expect the record: ” I do anticipate something today and will keep you apprised.”