Can Ferguson police legally withhold the officer’s name? (UPDATED)

A review of Missouri's case law and ​open records ​statute suggests ​​courts might see it as a close call

Editor’s note: Police in Ferguson on Friday, Aug. 15 released the name of the officer involved in the shooting. Our story as published and updated Aug. 14 appears below.

As the unrest in Ferguson, MO, has spread and grown, set off by the fatal shooting of 18-year-old Michael Brown and amplified by the militarized police responseone question has stood out among the many we can’t yet answer: Who is the police officer that shot Brown?

Embedded in that one question, of course, are several others: What is the officer’s rank? What are the officer’s responsibilities? Has the officer previously fired his or her weapon on duty? If so, what were the circumstances? Has the officer ever been disciplined? If so, for what?

T​he hacking ​group Anonymous this morning released on Twitter the name of the man it believes to be the office​r, but ​so far the Ferguson police department has continued to refuse to release the name​ or otherwise confirm it​, citing the risk of harm to the officer and his family and making unspecific references to a provision of Missouri law that allows law enforcement agencies to withhold an officer’s name in the interest of safety. This is a fast-moving story, but at the moment, in the absence of official confirmation media outlets appear not to have repeated the name identified by the hackers. (Update, 5 pm: The St. Louis County Police Department said this afternoon Anonymous had identified the wrong person.)

Thomas Jackson, the Ferguson police chief, has not invoked a particular provision in state law, and the police department did not return my calls seeking clarification. The hackers’ actions may force law enforcement’s hand​, but​ if the department continues withholding the officer’s name, the chief may be compelled to cite his legal authority soon—groups and community leaders reportedly have filed records requests, and could sue if the department rejects them. (Update, 12:55pm: Per Vanita Gupta on Twitter, the ACLU of Missouri has filed a lawsuit today seeking public records connected to the shooting.)

If that does happen, how a court would respond is anything but certain. In addition to the aggressive tactics directed at their own community, law enforcement authorities in Ferguson have acted unreasonably and even unlawfully toward people trying to report on the events there—detaining two journalists working at a McDonald’s, reportedly ordering satellite trucks to leave the city, teargassing journalists as they filmed a protest. Still, a review of Missouri’s case law and ​open records ​statute suggests ​that ​the courts might see the question of disclosing the officer’s name as a surprisingly close one.

Special rules for police records

Disclosure laws vary widely at the state level, and the Missouri Sunshine Law opens by saying that records of public bodies are subject to disclosure “unless otherwise provided by law.”

Two of those “otherwise” provisions stand out in the Ferguson context. The first is subsection 100.3 of the Sunshine Law:

Except as provided in subsections 4, 5, 6 and 7 of this section, if any portion of a record or document of a law enforcement officer or agency, other than an arrest report, which would otherwise be open, contains information that is reasonably likely to pose a clear and present danger to the safety of any victim, witness, undercover officer, or other person … that portion of the record shall be closed and shall be redacted from any record made available pursuant to this chapter.

The language is broad enough that it might allow the police to withhold the officer’s name. Jackson has said death threats have been made against the officer on social media and by phone to the department and city hall. “If we come out and say, ‘It was this officer,’ then he immediately becomes a target,” Jackson said. For awhile, an officer’s name was circulating online and in Ferguson as that of the shooter, until Jackson said it was the wrong guy—but that officer still received death threats.

​However, under subsection 100.3, the police would have to prove that releasing the name “is reasonably likely to pose a clear and present danger to the safety” of the officer and/or his family. In other words, it’s not enough to cite the existence of threats—they have to be credible and capable of being carried out immediately.

It’s impossible to say for certain (we know little about the threats), but I suspect the social media posts mostly wouldn’t meet that standard—the posters, all over the world, couldn’t immediately carry out their threats. And it’s not common for courts to accept the argument that remote threats are credible and imminent by virtue of the atmosphere they create locally. But any threats from people in and around Ferguson who could act hastily might meet the 100.3 standard.

Now, the second special rule for police records is subsection 100.5 of the Sunshine Law:

… In making the determination as to whether information contained in an investigative report shall be disclosed, the court shall consider whether the benefit to the person bringing the action or to the public outweighs any harm to the public, to the law enforcement agency or any of its officers … 

Interestingly, Jackson’s comment at the Tuesday press conference tracked that language. He said, “The value of releasing the name is far outweighed by the risk of harm to the officer and his family.” In a court fight, the police might well prevail using that balancing test.

But the problem here, as Mike Sherry, president of the Missouri Sunshine Coalition, told me, is that subsection 100.5 creates a disclosure test for a judge hearing an appeal, not for an agency weighing disclosure. That subsection—and standard—applies when a person brings an action in a trial court with jurisdiction “to authorize disclosure of the information contained in an investigative report of any law enforcement agency, which would otherwise be closed,” according to the Sunshine Law. ​That means the balancing test ​is not an independent basis to withhold—​it’s to help the court evaluate whether a public body has properly withheld a record on some other basis.​ 

A foreseeable risk of harm?

Even without those Sunshine Law provisions, in Missouri putting another person at a foreseeable risk of harm constitutes negligence. Sandy Davidson, a media law professor at the Missouri School of Journalism, pointed me toward the case Hyde v. City of Columbia, which the US Supreme Court let stand in 1983. 

Sandra Hyde was kidnapped by an unknown assailant, and when she escaped she reported the kidnapping to the local police. Then, without Hyde’s knowledge or consent, the police released her name and address to several newspapers, aware that the assailant was still at large—and the assailant thereafter terrorized the woman on multiple occasions.

Although the trial court accepted a public records defense on the part of police, the Missouri Court of Appeals for the Western District concluded that the name and address of a victim is not a public record as long as an assailant is at large, and that releasing the information put Hyde at a foreseeable risk of harm, creating a cause of action for negligence.  

“The situation in Ferguson is pretty tense,” Davidson said. “So a relevant question is whether release of the officer’s name would put him at a foreseeable risk of harm. I think you could make a good argument for the chief’s position using that case.”

Time for transparency

The stakes are obviously high here. And regardless of what the outcome of a legal dispute might be, for the police in Ferguson, adopting some transparency will be critical in regaining credibility and creating the conditions for public accountability. “I realize there is concern about public response,” Jean Maneke, the Missouri Press Association’s legal counsel, told me Wednesday. “But the department should do everything it can to demonstrate that it’s maintaining the integrity that the public places in it.”

When I asked whether the police ought to release the officer’s name now, Maneke said, “‘Now’ may not be the correct standard, but ‘soon’ may well be.”

The actions of Anonymous may now reshape calculations. But even if the hacking group is correct about the officer’s identity, it’s somewhat surprising that the name remained unknown for days—and that may itself speak to the divide between the community and local police. None of the witnesses to the shooting appears to know the officer’s name​, even though ​Ferguson is not a large city (roughly 20,000 in population), and the police chief did release some information about the officer—he is a 6-year veteran—and the city’s website shows that the department’s field operations office has just 32 officers. As Mark Johnson, a media lawyer at Dentons in Kansas City, told me, you​’d​ think someone would have figured out ​earlier​ who shot Brown.

And, indeed, someone may have. “Perhaps the witnesses are concerned about releasing the officer’s name,” Johnson said. “Possible long-term fear of police retribution.”

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Jonathan Peters is CJR's press freedom correspondent. An attorney, he is an assistant professor of journalism at the University of Kansas, where he teaches and researches media law and policy, with an affiliate research position exploring big data and Internet governance in the KU Information & Telecommunication Technology Center. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters. Tags: , ,