Police Records And Video At Heart Of Montgomery Letter To Agencies

Published: Monday, May 21, 2018 - 7:54pm
Updated: Tuesday, May 22, 2018 - 11:04am
Jude Joffe-Block/KJZZ
Bill Montgomery

A letter to police departments and mayors sent from Maricopa County Attorney Bill Montgomery is raising questions from lawyers around the Valley. The letter from May 8 deals with how police departments and municipalities respond to public-records requests.

Specifically, it says that when law enforcement agencies get a public-records request about an ongoing investigation, they should consult with the County Attorney’s Office.

It’s a process that has been in effect, albeit not written down, for “at least the last three years,” the letter says.

“It’s not this office, when being notified that there was a public-records request, telling the police department ‘this is what you must do,’” Montgomery said in an interview. “No, we’ve got to have a conversation about it.”

News of the letter first broke in the Arizona Republic.

The letter lays out the process: the County Attorney’s Office and the police agency will evaluate the request, and if a denial leads to a lawsuit from a media outlet, the attorney’s office will “indemnify,” or compensate, the police agency for any resulting fees.

That is, as long as the agency follows the process spelled out in the letter.

Montgomery’s letter also says that if evidence gets released apart from the specified process, or “contrary to an agreed upon release,” and costs are incurred because a trial is moved, his office will try to recoup those costs from the police agency.

As a basis for the letter, Montgomery points out current exceptions to the state public-records law and also argues that ethics rules are at play. Specifically, he cites Arizona State Bar rules 3.6 and 3.8 that govern professional conduct for attorneys.

These are rules against making statements that may prejudice a jury ahead of a trial.

Asked if those rules extend to records released by law enforcement agencies, Montgomery said, “It could, depending on what we’re talking about.”

To Phoenix attorney Dan Barr, it’s shocking to hear that argument.

“His letter is exactly the argument that Tom Collins made over 25 years ago,” Barr said. “And it’s exactly the argument that was expressly rejected by the Arizona Supreme Court.”

In the 1993 decision Cox v. Collins, the court ruled former Maricopa County Attorney Tom Collins acted in an arbitrary and capricious manner in withholding investigative reports from two newspapers.

Barr represented the newspapers in that case.

“They said, well, first of all, the contents of this public record are in no way to comments of prosecutors here. It’s what the police did in investigating the case,” Barr said. “What the ethical rules deal with are comments made by prosecutors or lawyers before a trial where there’s a substantial likelihood that it’s going to materially prejudice the trial.”

Representatives from area police departments told the Arizona Republic that they are reviewing the letter and declined to comment.

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