*1 219 Lawrence, and Richard L. Mercedes McCAMBRIDGE v. The Executor of the Estate of John Lawrence Markle ROCK; LITTLE Arkansas Gazette Company; CITY OF Inc., Clark; Steve Little Rock Attorney Newspaper, General Intervenors 87-352 S.W.2d 909 766 of Arkansas Court
Supreme 13, March Opinion delivered [Rehearing denied April 1989.*] grant rehearing. would *Purtle, J., *4 P.A.,
Bell, Associates, & L. Bell and by: Harvey Bilheimer Bilheimer, McCambridge. P. for Mercedes Stephen appellant Owen, L. William L. for Richard Lawrence. appellant Stodola, Mark of Little City Attorney, for appellees City Sgt. Rock and Edward Alexander. Firm, Association, Rose Law A by: Phillip Professional
Carroll, for intervenor The Arkansas Gazette Company. Clark, Gen., Bell, Steve A. Att’y by: Jeffery Deputy Att’y Gen., Gen. and Connie for Griffin, Att’y C. Asst. intervenor General Steve Attorney Clark. & Rock
Wright, Lindsey Jennings, for intervenor Little Inc. Newspapers,
Robert H. Dudley, Justice. The issue in this case primary is whether the constitutional should bar disclos- ure of records would be which otherwise available for under the inspection Arkansas Freedom Information Act. FACTS
I. Lawrence, Richard an testified at trial that he attorney, client, received a Markle, call from his at telephone John four o’clock on the morning of November 1987. Lawrence dis- but, closed said, what police Markle had asserting trial, at attorney-client privilege refused to to more than testify that Markle asked him come to his residence at 1820 Main Street in Little Rock. After tried hung Markle Lawrence up, back, call him but was unsuccessful. we Although do not know Lawrence, from the trial testimony what Markle told it must have been alarming for it caused Lawrence to call the request that a unit patrol meet him at the Markle residence. Markle was in serious financial trouble and faced possibly charges. criminal house, When Lawrence arrived at the he found no so policemen, he circled the block and then noticed two cars at a patrol Safeway *5 at store 17th and Main Streets. Lawrence described his plight officers, and Armstrong Patrolman Law- agreed go with together. house house. They approached rence to the Markle was about ajar main door was unlocked. The An outer storm door could see Lawrence on inside the house. Lights an inch. were half house, to it was a piece and taped inside the a black briefcase Patrol- in red ink. name and address Lawrence’s bearing paper which in an office Markle’s body went in and saw Armstrong man had been shot. Markle to the house. hallway was off the front just Law- and asked radioed for assistance Armstrong Patrolman came Another policeman rence to back to the front go porch. found They the house. began to search they carefully and quickly, Christine, wife, their the bullet-riddled bodies of Markle’s secured two policemen Suzanne. The daughters, Amy and young and called for detectives. the crime scene seized the detectives the crime scene search conducting In trial. in a criminal constitute evidence thought might items they house, the black included found inside guns This addition, scene and pathologist photographs briefcase. In crime were taken. that he had stating note from Markle
The detectives found a suicide. murdered his wife and and committed daughters of the black briefcase detectives the contents photocopied to Lawrence. original returned the briefcase and its contents Depart- in the Little Rock Police Those are now photocopies ment’s official files and include of: copies attorney, from to his
1. two handwritten letters Markle Lawrence; appellant notes;
2. Markle’s containing a diary mother, his 3. a handwritten letter from Markle to McCambridge; appellant 4. miscellaneous notes. fired a that Markle had scientific tests
Subsequent proved death, found at guns or before his and that the gun, guns, just killed the victims. the bullets which scene were the ones that fired a closed the matter The Little Rock Police considers Department case. McCambridge against filed suit Lawrence and
Appellants Police Depart- and the Little Rock both the of Little Rock City
225 the items releasing from seeking ment restrain department official listed above and the from the department’s photographs mother, is an McCambridge, Academy files. Markle’s Appellant actress, figure. and as such she is a winning public Award to rule that Rock asked the trial court Little Police Department it informants. The did not have to information from gained release must be disclosed trial court ruled of the items mentioned that all Act. We granted under the Arkansas Freedom of Information of the items. any which disclosure temporary stay prevented We dissolve separately points that For we discuss stay. clarity, Lawrence, McCambridge, and the appeal police asserted by department. POINTS OF APPEAL
II. LAWRENCE’S First, Both of Lawrence’s involve state law points only. argues he that and are not police pathologist photos records under the The argument act. is without merit. As enacted, made, act originally “records applied only maintained or any public governmental or Act 93 kept by body.” 1967, Section 3. The definition of records” has now “public been broadened to are those public records provide “required lawby to be “otherwise which or constitute a kept” kept record or lack of performance performance official . . .” Code 25-19-103(1) (1987). Ark. Ann. § functions.
Police crime scene photographs pathologist photo are graphs “otherwise obviously for evidence in criminal kept” cases as an “official function” of a department. A citizen police could examine crime scene photographs pathologist photo and, extent, graphs to some evaluate the of a performance department. The are photos subject records and to the act. Rose, City Fayetteville 468, v. 294 743 Ark. S.W.2d 817 (1988). Second, Lawrence appellant argues that attorney-client privilege precludes disclosure of the written two letters to him by client, Markle, his and left in the argument briefcase. This is also without merit.
Appellant is attempting create an to the act exemption other than those in Ark. listed Code Ann. 25-19- 105(b) (Supp. §(cid:127) 1987). Twice we have such previously, rejected arguments. Scott McCord, 401, 432 (1968); S.W.2d 753 245 Ark. Laman v. Smith, 728 S.W.2d 292 Ark. argu rejection" are two reasons for There First, broadly be Act should the Freedom Information ment. nar disclosure, construed exceptions in favor of construed *7 instincts self-protective in order to counterbalance the rowly Second, attorney-client privi the governmental bureaucracy. the court 502, rule limited to A.R.E. is an lege, evidentiary Rule 101. no outside application Rule It has A.R.E. proceedings. ato and, therefore, create an exception cannot court proceedings Smith, at substantive act. Scott 292 Ark. 176. OF APPEAL POINTS McCAMBRIDGE’S
III. in turn contain asserts nine which McCambridge (9) points both and federal based state twenty-eight (28) upon subpoints two letters law. She release of Markle’s prevent seeks Lawrence, her, and the letter to Markle’s diary, Markle’s merit are so without subpoints wholly of the photographs. Many summarily. that we treat them that the Free- McCambridge contends Arkansas
Appellant face, (b) and (a) dom of Act is on its Information unconstitutional the She that the act violates this case. contends applied Arkansas, 2, 2,3,6,8,15,18,21, Constitution of Sections Article fourth, first, violates and 29. She also contends that the act the fifth, ninth and to the Constitution fourteenth amendments States. United basic
Her be to five arguments constitutional can reduced (A) assertions. are: the Arkansas Freedom of Information They without Act and for a warrantless search seizure provides cause; without taking it (B) provides property for probable it (D) the (C) protection; due it violates doctrine of process; equal her constitutionally chills it violated unduly (E) free speech; right to privacy. protected
A. First, lacks to raise McCambridge standing issue, search and for amendment search seizure fourth asserted. rights vicariously seizure not be may are personal Illinois, Rakas v. She had no expectation house, searched, her or the which was not place seized, Second, act, did its things belong which not her. on Third, face, does simply provide for searches or seizures. state search and did not either the federal or seizure violate constitutions. situation,
An emergency dangerous or described circumstances,” our as “exigent cases will a warrantless justify Here, into a entry house for the of either arrest or search. purpose Markle’s personal invited the attorney patrolman accompany him into his he danger client’s house because stated some or harm may have come call based from Markle. family upon inside, Once It patrolman found Markle in a of blood. pool was reasonable for the to see if patrolman the killer was still on premises, if the other members were safe or needed family help. United States Court has held: Supreme come of a scene homicide upon
[W]hen may make a warrantless search of the see if prompt area to *8 there are other victims or aif killer is still on the premises. . . . And the seize that police may any evidence is in plain view the during course their legitimate emergency activities. v. Arizona,
Mincey 437 U.S. 392-93 (1978). briefcase was in view its plain and seizure as evidence was not unlawful. Therefore, act, the as did not to an applied, amount unconstitu- tional seizure.
B. Act, face, Freedom of Information on its does for provide taking Further, without property process. due act, there no under taking A “seizure” of applied. evidence does police not constitute a “taking” in States, 1329, 1337 constitutional Porter v. sense. United 473 F.2d (5th 1973). Cir. Neither does the release of information pursuant to the Freedom of Information Act. There was no denial due process in this case.
C. The Freedom of (10) Information Act for ten provides from disclosure. exemptions Appellant McCambridge complains memoranda, number seven which is for: about (7) “Unpublished Governor, Legisla- and working papers, correspondence General;” tors, Justices, Ark. Attorney Court Supreme that it argues She 25-19-105(b)(7) (Supp. 1987). Code Ann. § or “fundamental No class” protection. “suspect violates equal Hence, to the the proper is involved in the act. right” exception Clements a exists for the legislation. test is whether rational basis is a rational there Fashing, Certainly, Governor, the working basis for of the protecting papers and the Court Justices from disclos- legislators, Supreme exchange encourages ure. Such free protection promotes government. in each of three branches of thought D. the act chills McCambridge
Appellant alleges because give free citizens refuse to statements speech that their will be under the act. for fear statements made public However, challenge she has act on free standing speech no as she does not assert that her has been chilled. grounds speech
E. does, however, McCambridge argu- have valid ment. The Little its completed Rock Police has Department closed. The investigation crimes and now considers the case is now to release the department ready photographs copies items which were the briefcase. McCambridge Appellant contends that the are writings photographs copies embarrassing to her and are and harmful if disclosed. potentially violate argues She that their release will her constitutional of privacy. *9 Davis,
In Paul v. 424 U.S. (1976), Supreme 693 right Court held that the does not constitutional privacy disclosure “a record of an act such as an arrest.” prevent of official Id. at 713. The does not extend information off the holding Coon, 1981). F.2d Fadjo (5th record. 633 1172 Cir. In public Roe, 589, Whalen v. the Court (1977), 429 U.S. 598-600 of recognized right “Appel to nondisclosure matters: personal lees contend that the statute invades a constitutionally protected ‘zone of The cases sometimes as privacy.’ protect characterized have at different kinds of ing in fact involved least two ‘privacy’
229 One avoiding interests. is the individual interest in disclosure of matters, another is the interest personal independence making of certain kinds decisions.” important (Emphasis sup- In a to the above the Court cited with footnote plied.) quote an article Professor which identifies Kurland approval by Philip facet one of of an individual constitutional as “the privacy to have government.” his affairs made private by public The Court need further for nondisclo- expressed sensitivity sure privacy protection:
We are not unaware of the threat in the implicit to privacy vast accumulation of amounts of information in personal data computerized banks or other massive taxes, files. The collection of the distribution of welfare and benefits, health, social of security supervision Forces, direction our Armed enforcement of the criminal laws all require orderly preservation of great quantities information, much which ispersonal in character and or potentially embarrassing harmful if disclosed. at Id. 605 (emphasis supplied). then,
Since
majority
the federal courts have inter-
Roe, id.,
Whalen v.
preted
a constitutional
recognizing
right to
Comment,
nondisclosure of
matters.
A
personal
Constitutional
Right
to Avoid Disclosure
Matter:
Personal
Perfecting
Privacy
DeSanti,
Analysis in J.P. vs.
(1977), the Court discussed expressly under the topic heading “Privacy,” said even President of the United States was entitled to at least a limited privacy:
One element of privacy has been characterized as “the individual interest in avoiding disclosure of personal Roe, matters. . . .” Whalen v. 599 (1977). We with may agree that, appellant at least when Govern ment stake, officials, is at intervention including the President, are not wholly without constitutionally pro tected rights in matters of life unrelated to any acts done them in their public capacity. *10 Id. at 457. 693, 713 Davis, Court (1976),
In Paul v.
interests include
fundamental stated that
expressly
addition,
by
to nondisclosure
In
family relationships.
of the
of ownership
is
of the
government
question
“independent
Serv., 433 U.S.
Gen.
. .
'' Nixon v. Administrator
materials.
avoid
has a
McCambridge
at 458. In summary, appellant
matters.
personal
of some
by
government
disclosure
is,
items
issue in
do the
at
question
The obvious next
of Whalen
case
matters? In that part
instant
involvepersonal
a
that
Roe,
the Court indicated
personal
quoted previously,
potentially
character and
matter was a matter
in
“personal
in his Georgetown
or
if disclosed.”
embarrassing
Falby,
harmful
comment,
matter”
ought
writes that a “personal
Law Journal
kept
wants to
has
(1)
be information:
that
individual
confidential,
that,
challenged
for the
(2)
except
or
private
confidential,
action,
(3)
or
can be kept private
embarrassing if
would be harmful or
to a reasonable person
determining
for
Falby’s
disclosed.
The second of the test excludes matter part were not already on the record. The items at issue here record. part of the public test, objective an
The third of the test involves part be to a reasonable whether the matter would offensive highly respect (1) third of the is satisfied with to: person. This test part (2) diary attorney; the two letters from Markle to his notes; his the letter from Markle to containing' (3) Markle’s mother; will be The reasons therefore (4) the photographs. below. in the discussion of interests apparent balancing are matters. The we hold that those items Accordingly, test, however, six third met respect is not with part We can summa- of miscellaneous notes written Markle. pages
231 as rily say that has no interests in them appellant privacy cause her no harm or embarrassment.
Having personal determined the items involve matters, the question governmental the final is whether interest disclosure of the outweighs under the Freedom Information Act the appellant’s privacy personal interest in nondisclosure the Serv., 425, 458 matters. Nixon v. Administrator Gen. strength McCambridge’s The individual appellant privacy interest in nondisclosure the among varies items. The police crime scene are photographs pathologist photographs horrible and as all sickening, are such murder multiple photo will graphs. naturally be sensitive to the but Appellant pictures, balanced the against interest in dissemina appellant’s preventing tion the are photographs government’s strong interests occurred, how the depicting multiple murders why consider matter, the case closed as a murder-suicide triple no why further action be should taken. This is a valued highly governmental interest. we hold that Accordingly, photo graphs should be released under Freedom of Information Act.
Similarly, will be sensitive to appellant the matters revealed in her son’s because the diary diary reflects Markle’s troubles, him, serious financial possible charges against criminal However, thoughts his of suicide. these are probative and relevant nature and a Again, course of crime. this is highly governmental interest, valued and it outweighs McCam bridge’s interest in nondisclosure. briefcase,
In the Markle left two letters to his lawyer, Lawrence. appellant Again, McCambridge’s some sensitivity understandable, the information contained in these letters is but the State’s interest in disclosure is The very strong. first paragraph of the first letter is a “Review of Conversation” of the call to telephone Lawrence at four morning o’clock on the states, wife, November 16. It “I my murdered and children and Further, committed suicide.” the letters direct Lawrence about how to close Markle’s personal business affairs. The informa tion confirms the conclusions reached police.
has strong a interest in the announced solutions to crimes. is letter from Markle item in the briefcase
The last his an son to angry letter from is McCambridge. appellant lives and relation- most it deals with their mother. For the part cannot figures expect most While and is sensitive. ships citizens, they reasonably can same degree private privacy Even their children. letters or from expect privacy interest. States has the President United of this nondisclosure interest in McCambridge’s Accordingly, high. letter very
However,
traded
also
Markle had
the letter
discloses
basis
a discretionary
stock market account on
McCambridge’s
Inc.,
investment
did
for
an
the same
apparently
Stephens,
admits,
“I added funds
In the letter Markle
banking company.
account;
letter
the
account.” The
I added losses to
your
Stephens’
does
the
amount Markle shorted
but
Stephens,
not disclose
exact
It
a million dollars.
figures
indicate it was well over
given
my
family
“so
I and
whole
caught
reveals that he had been
now
—
.” The
are
. .
information
you
money.
dead
so
can have
a
determining
and is
bears on the suicide-murders
relevant
The
a
interest
very strong
solution to the homicides.
has
public
and,
crime,
here,
interest
announced solutions
the public’s
interest.
outweighs McCambridge’s privacy
arguments,
Aside
five constitutional
appel
from her
law in
McCambridge
lant
asks us to construe the act under state
We
such a
are
from disclosure.
records
way
police
exempt
does not
summarily reject
appellant
because
request
nor
merits of
convincing argument
authority,
present
State,
260 Ark.
argument
are not
Dixon
readily apparent.
prevent ongoing interference with investigations. When a case is action, was, closed by administrative as this one the reason for the exists, exemption no and the longer trial court ordered correctly the statements released. we affirm the Accordingly, ruling trial court that the police are to be released. reports
Hickman, Hays, JJ., Newbern, *13 concur. Glaze, JJ., and concur Purtle part in and dissent in part. Justice, Hickman, Darrell I concurring. agree with the result reached but to majority, I write two emphasize things.
First, I don’t find the “letter” to McCambridge
Ms.
to be a
document in which she
any
has
constitutionally
inter-
protected
est, whatever
this
to
be. The
privacy may
letter undoubtedly
aided the
police determining the fact that Markle murdered his
family
then killed himself. It also shed
on his motive for
light
so.
doing While the
mother,
letter was addressed to Markle’s
it
was not delivered. She has never seen
It
it. was found at the scene
evidence,
crime. It was legitimate
gained and
lawfully
not,
used in
properly
investigation
therefore,
of a crime. It was
a purely
document
entitled to
that the
any privacy
constitution
See
may grant.
Nixon v. Administrator
General
Services,
That means Rose, v. Fayetteville City to examination. subject public killed his 468, 743 family When Markle (1988). S.W.2d 817 Ark. matter; he himself, opened his public and then he made actions why. With investigation of what happened the door to an relative to all available evidence right to examine comes the in the all the documents police copied his motive and actions. The The officers files. those in their official copies briefcase and have to the crime. Under documents relevant testified found these they law, documents. Arkansas are public Second, to rewrite the Little Rock wants us City states that all clearly public Freedom of Information Act. It available for law shall be agencies records of enforcement investiga- for those contained in “undisclosed” inspection except activity. tions of criminal suspected — to vague interpret word is not or hard “undisclosed” City Fayetteville See just it is not the word the wants. city Rose, take law officials should city enforcement supra. legislature. this with the up question Justice, concurring. majority Newbern, I join David on the my but wish to write state views opinion separately of privacy. here,
There is no doubt that the document question McCambridge, being letter is main- from Mr. Markle Ms. record. tained in a office and is be a presumed Thus, it is inspection Ark. Code Ann. 25-19-103 open § (1987), unless it falls Ark. Code Ann. 25-19-105 copying, § of would violate a within a or disclosure it statutory exception Code Ann. right. exceptions constitutional None Ark. § (1987) so constitu- applies, only 25-19-105 question tional one. *14 is that the United stating correct in majority opinion to recognized right by
States Court non-disclosure Supreme Roe, v. 429 of Whalen U.S. 589 matters in private again it (1977). It is also correct in out that was pointing Services, General 433 recognized Nixon v. Administrator of However, dicta recognition 425 came as obiter U.S. York’s laws in those cases. The Whalen case held that New
235 safeguarding con- drug release treatment information tained in to state information banks were sufficient computer protect privacy whatever interest have had patients may decide, information. In did stating that which the court Mr. not, not, Justice Stevens wrote: “We need decide therefore and do any question might which presented by be the unwarranted disclosure or accumulated data —whether intentional private unintentional —or did by system that not contain comparable security at provisions.” U.S. 605-607. To me it is clear the Court would have Supreme the information at stake protected had it not been for the safeguards. The basis for the only protection would have been right not to have the privacy information disclosed. The court was disavowing the hardly privacy right by making that statement. The Nixon case held the former president’s privacy interest would not a limited preclude invasion for the purpose separating from personal materials. cases,
Neither of the cited when limited to holding, its can stand for the that there is a proposition right privacy requiring the government sensitive, not to disclose infor- personal, private, mation. Realizing that no there is holding of the supportive right of privacy where it was asserted prevent governmental disclos- ure of personal information, it, we could recognize refuse to knowing full should, however, well that the is right there. We do as the majority opinion has done and ascertain the law on the basis of our as how prediction the United States Supreme Court would determine this issue. Connecticut,
Griswold v.
(1965),
is
typical
the cases recognizing the
have in
making
citizens
decisions with respect to their intimate
conduct. That
statement of constitutional
is
protection
privacy right
clear.
In
v.
Stanley Georgia,
also protected. in Griswold the to which it beyond applied the conduct case. regulate the of the state to balancing right we are not
Here Rather, we are of against right evil the perceived privacy. to which reveals of citizens information balancing right the the aof against right the government the nature and operation If that matters disclosed. citizen not to have intimate personal so exist, have said the Court would right simply did not Supreme not have the cases and would scrutinized in Whalen Nixon Instead, it. the court wrestled designed the schemes to protect against right question to the information government have it and the right government, of the citizen not to disclose to the government proce- ultimate discussion was about whether the have right dures of the citizen not to sufficiently would protect the right Neither case held information disclosed publicly. it, existed, discuss and I find but both of them found it necessary that to of it. be a clear recognition must, course, to be let alone to the right yield likewise, should, it. It power by yield when overbalanced and understand how right citizenry interest and know that their conducted when overbalanced being by mother had contained right. If the letter from John Markle to his homicides, would relevant to the four I believe this court nothing and not allow it to be protect McCambridge’s right Ms. subject disclosed. While the document is to the provisions Act, sections of which were Arkansas Freedom Information cited at the outset of this interest opinion, governmental act protected against must be balanced Ms. McCam- by bridge’s We have in the engaged constitutional privacy. same Court in the balancing sort conducted the Supreme Whalen and Nixon cases and concluded the to know public’s right must prevail. J., joins this opinion.
Hays, Justice, dissenting Purtle, concurring I. part John of this case convinced me that the part. circumstances have letter other from deceased to his mother and the letters and material should be treated specifically attorney addressed though had been delivered. The of an individual *16 to have made the personal private by his and affairs public highly of these unquestionably protects the privacy is personal It is that the “zone of papers. my opinion privacy” and a attorney broad to cover with one’s enough a communication letter to one’s mother. record the material in the briefcase was not a
Clearly public to seized was never intended to prior being government. the It by be a of the fact that the part public may domain. mere police have in of their right had the to look at these the course papers not, did investigation alchemy, by process governmental some transform this material into personal private public property. fiat, majority, by judicial converts the character wrongly the briefcase contents final Mr. mother and the letter to Markle’s from the of the mother and the to the property attorney property of the police department. Although right the had the to police crime, examine discovered everything at the scene of the they not, did in have the to consequence, automatically right keep everything they examined make those items a matter of record. The behind today rationale the endorsed procedure conclusion, would, the by if to render majority carried its logical the utmost secrets of a victim the depart- property police ment, and thus subject these secrets to public scrutiny commercial exploitation.
The majority strength derives the fact from that personal and confidential letters and are not papers expressly exempted from disclosure under the most Freedom Information Act. The reason for compelling excluding such information expressly from the mandate of the F.O.I.A. is that the so basic concept that it was not thought anyone would claim such material was not privileged. There is no legitimate state purpose releasing such material the to public.
To the read statute with so is not the broadly keeping intent of the act. The majority’s would interpretation appear allow the scene, police everything including confiscate on books, articles, papers, and other secret and pictures, personal effects, thereby them making available for At public inspection. least, I believe very should have majority exempted letter from Markle to mother his from disclosure under provisions of Freedom of Act. The “zone of Information 238 include the material enough is also broad
privacy” exception attorney. the briefcase which was intended for the deceased’s only Markle bit of information in this record indicates that John Every we allow in these circumstances. When fully expected privacy record after and confidential letters to enter authorities, becoming seizure we have a toward by step taken Constitution,” as Justice state. “The makers of our States, Brandéis observed in in Olmstead United his dissent conferred, “. . . the Govern- (1928), against U.S. ment, the rights be let alone —the most comprehensive most valued civilized men.” strongest decision concerns the
My objection majority *17 release of the If these of the victims of this photographs tragedy. gruesome ever served has photographs any purpose, purpose long since been then The should accomplished. photographs become, witnesses, like no a of the record. There can longer part legitimate be no on the of the media or the expectation part public to examine the sickening every horrendous and of photographs homicide case. All that need be said about these publicly and this material is contained in the photographs majority concurring opinions. Roe,
The
v.
from Whalen
It is obvious that: (1) deceased wanted to these keep confidential; action, matters (2) for the except confidential; material would have been the contents kept (3) would be harmful or to relatives and friends if embarrassing were disclosed. This material meets the test consequently Roe, as stated in Whalen v. Death has sealed the supra. lips John Markle and his wife and children. The media should now be given license to facet of life and that expose every his personal disclos- of his those now entrusted with family. Hopefully, public ure of common sense and respect these materials will use matter is in of the The dignity surviving family. of the members their hands. case. The balancing
There is of interests in this necessity of a items under matters obviously deeply consideration are had it not nature which would never have been disclosed been The to know for their seizure the state. right must be against balanced the individual privacy, even in the Air Force great Department cases See notoriety. Rose, 352 (1976). nothing add photographs government’s of the murders and There is no explanation suicide. doubt what about and the letters happened, pictures and personal and instructions add not one scintilla to the of the state’s strength conclusions. Nothing about the would photographs remotely assist the members of the the duties of the evaluating police department.1
For very reasons set out in the I would majority opinion, hold the to be personal diary protected by constitutional privacy. have some diary may remote relevance to the other materials to be released under the but it majority opinion, does any not in aid way in the solution of the Nor crime. does release of the diary any legitimate enhance expectation commercial enterprises to delve into the of this gory details sad *18 event.
In my neither the deceased’s letter mother opinion, to his nor the of contents the briefcase intended for his are items lawyer Moreover, covered by the Freedom of Information Act. common decency and for respect the dead and the living surely demand that this material not be commercialized. I read the material and looked at some of the photographs only my duty because it was to while disclosure would not invade grisly photographs of the bodies of three victims’ families.” “release of the protection 80, FOIA [174] [1] It request, (1981). may exemption be worth photographs under 5 U.S.C. See Independent Documentary Group, also noting 6 of the KUTV, Inc., would that the federal 552(b)(6), act extends to constitute the 4 DOE privacy persons 10 C.F.R. a Department the substantial 81, killed in a individual’s the [150] San 1004-10(b)(6), deceased (1979). Francisco, invasion of the of reactor Energy, immediate family. victims, explosion, California, in for dealing privacy the release of the held with privacy 7 DOE Thus, that an 240 there is no so, that Having absolutely persuaded
do so.
done
I am
Even if there
to the public.
valid reason to reveal this information
the
reason,
outweighed
is far
by
its validity
should be
such
any
existing
writings
at the time
reasonable
expectation
privacy
concerned,
no
am
there is
were
So far as I
committed to paper.
of dead
right
gruesome
exhibit
photographs
people.
Justice,
dissenting
Glaze,
concurring
part
Tom
McCam-
that Ms.
majority
holding
I
from the
in its
part. depart
relies largely
a valid
bridge
argument.
majority
has
privacy
Roe,
In this officersobtained Markle investigation. was a a criminal directed his mother as result of investigation, Rock Police later closed its Department Little that Markle killed his and then committed suicide. finding family At became gathered by police that the information point, subject to the Arkansas Freedom of Information disclosure under City Act Act in (FOI Act), recently as we interpreted Rose, 817 Fayetteville v. 294 Ark. S.W.2d Act, that, the FOI Although suggests majority irrespective of a McCambridge disclosure letter from Markle to I submit that the subject privacy right McCambridge, a this type court in Whalen never intended to extend such of fact situation.
Here, amendment officers conducted a fourth proper residence, result, search and seizure of the Markle and as other items and evidence acquired along Markle’s letter with the Thus, found at the crime scene. we have no one’s privacy of the fourth security being arbitrarily invaded violation amendment. While we do not have the same concern that States, (1967), Katz v. court addressed in United the court there did make it under clear that a general fourth amendment translated into cannot be *19 the majority constitutional On this “right privacy.” point, failed cite cases that any court and in this cause have parties involve a to avoid disclosure of matters privacy right investiga- result of a criminal which the as a acquired tion. token I By same am aware of none. area,
From this and would be the my reading the cases in I clear, first to admit that are far from I no indication that find the disclosure of information privacy applies view, obtained a valid In state law through my search seizure. us, controls disclosure issue before not the constitutionally protected right privacy. McCambridge has no simply issue, in this cause. The sole is whether the my judgment, Act, Markle letter is subject to disclosure under the FOI Rose, considering this court’s recent I have no doubt decision that it is.
Jackie Mitchell BATTLE James A. George Mitchell HARRIS,
(Al)
Sheriff of Clark County
88-231
Supreme delivered Opinion March