*1 to meet of evidence sufficient showing absent clear no show- there is statutory when Certainly requirements. release be denied. ing, should release
I would reverse the trial court’s order authorizing remain for- evidence would order that it sealed ever. J., concurs with J. Brachtenbach,
Utter, August 15, 1974.] 42854. En Banc.
[No. et al., George B. Monroe Petitioners, P. Allan Tielsch,
Respondent. Larry V. Lund Seattle-King County Public Defender, for petitioners. Newbould, Counsel, and J. Corporation
A. L. Now Roger Assistant, respondent. ell, aged petitioners, 14, 14 and J.—The Brachtenbach, expunge held of their “arrest records all
16, moved County King Department, Juvenile Police the Seattle legal files.” records, intake social files Court’s *2 petitioners’ precipitated motion was The event which having petition alleging delinquent commit- for to be each of RCW in violation liberties ted the offense indecent charged petitioners as- with also was 9.79.080.One possession shoplifting, of a also and another with sault burglary. dangerous weapon and charge, hearing al- the liberties
At the on the indecent leged acquiescence father, declined of her victim, the with testify. charges to were dismissed. only expunge inde- petition not aimed was charges above. as indicated but other records liberties
cent The motion was denied. regard re of arrest dissemination
With to the Finley’s concurring prospective employers, Justice cords to analysis. opinion Rather and exhaustive research reflects adopt approach, opinion parallel extending we than this holding opinion concurring that a portion and its that of his may juvenile’s under released record not be arrest employers prospectivе or nonrehabili circumstances institutions. tative educational juve petitioners’
Complete expunction records, they categorized and as social have nile files and court what underlying contrary legal files, would be however, juvenile juvenile purpose philosophy of our of our law. The guidance protection, and law, 13.04, has been court RCW operation punishment. intended to rehabilitation, “Its protect tendency inception, and check the criminal improper period from in the facile the unformed character Lundy, 82 Wash. In re environment and influences.” 151, 143P. 885 purpose implementing philosophy the statute
In juvenile provides probation to assist counselors “inquire into the court. The law directs counselor family history, environments character, antecedents, every alleged delinquency de- dеpendency or cause juvenile brought pendent delinquent before the child judge, facing short, . .” 13.04.040. court . RCW judicial system, needs in the one difficult tasks of the most help possible to reach a decision all and information juvenile him. before how to best and aid correct turning point Obviously be a literal that decision young offender’s life. have available One the facts which the court should prior alleged involvement of the with acts proof from the arrest violation the law. comes That absurdity of record. The facts of this case demonstrate expungement. particular Let us assume one of these petitioners is later before re- court his arrest expunged. cords have been unaware court would be petitioners period that one of these arrested in a had been robbery, rape, shoplifting, 17 months for vandalism, аs- *3 larceny, burglary, carrying weapon sault, a concealed and only curfew violation. We senses, have our but our lost reality touch with if we think such a record would not have bearing a judge’s valid on the decision as to how to treat the inquire offender. With that the into record court could the disposition. circumstances each arrest and its With- out it the court is denied information which a could have substantial punish, influence on its effort—not to but to aid and compelling rehabilitate the offender. interest of availability the juveniles State in the of arrest records of is perfectly obvious. specifically
This court has held
that arrest
are
hearing
try juve-
admissible in a
to determine whether
a
Sheppard Rhay,
nile
anas
adult.
734,
440 P.2d
Wn.2d
(1968);
Rhay,
Williams v.
tion should not an abuse disturbance absent thereof. agencies legitimate in
Law enforcement have a interest juvenile percent arrest 25.6 of all arrests records. In reported by Investigation Federal were of Bureau persons years. age Dep’t of Justice, under the U.S. Crime in the United Tradi- States Table at 126 tionally mak- law an than enforcement more has interest juvenile ing juvenile thrusting and into arrest that then system. report, The same FBI Table discloses court juvenile percent taken into all offenders custody department released, and were handled within the dealing obviously disposition. with Thus informal any juveniles part frequently other who are as mobile as society, our the as- should have law enforcement officials juvenile past of- of the with sistance involvement fenses as reflected arrests. juveniles petitioners to an
If, are entitled contend, expunction records, obvious automatic of their it is arrest juvenile nor would enforcement court neither law developing pattern picture ever have true juvenile. expunged, ever be If each is no record will guidance developed and interested in the all those the means rehabilitation of the would be without properly he or when evaluate conduct system. she next back within the foregoing trial court affirmed. reasons, For the C.J., Stafford, Hamilton, Hunter, Hale, JJ., concur. Wright, *4 dissenting part)— (concurring part J.
Finley, July petitions De- in the Juvenile filed 26, 1972, were On County alleging King Superior partment Court per 13.04.010,and dеlinquent petitioners RCW were that indecent liberties as criminal offense had committed the subsequent At 1972. 9.79.080, 26, June on defined RCW prosecuting fact-finding hearing September 21, 1972,the on father, acquiescence declined of her with the witness, judge testify. presiding then dismissed Court Juvenile The prejudice. charges with hearing, petitioners fact-finding to ex- moved At the punge 26, June 1972. incident of relative to all records to encom- later broadened This continued and motion was pass expunction police de- records, arrest partment pertaining legal all files social files petitioners’ suspicion having committed var- on arrests expunge pertinent all ious criminal offenses. The motion to April 27, Court on records was considered the Juvenile ruling sought 1973, and denied. review this Petitioners granted of certiorari was to consider writ which presented questions merits of the therein. including incident of June that, record reveals petitioners, aged
26, 1972, Monroe, Allan Bernard aged aged Alonzo Monroe, Jr., Webb, Clarence' Jr., aged and Mathion Powell, Jr., 5,1, had been on arrested respectively. alleged 6, and 13 occasions Petitioners that maintenance and dissemination of their records of arrest stigmatize many will them as “arrestees.” It is asserted of the same disabilities which attach to one who is con- victed aof criminal offense also attach to who is one merely upon suspicion arrested of criminal misconduct. urged,
existence these it records, constitutes inva- sion of privacy, their constitutional and will work deny petitioners substantial educational and voca- opportunities merely tional because of their arrestee status. petitioners by expunge seеking their motion are alleviate or prejudice avoid the discrimination and which essentially results from their arrestee but nonconvicted re- cord status.
Respondent, argues Chief Tielsch, of Police there is statutory provision no expunction for the records, arrest City further, article section 6 of the Seattle Charter requires that, “[t]he keep chief of shall a correct showing record of all arrests, the time and cause com- plaint upon each which . was made . .” The re-
spondent provide a tool that valuable asserts arrest probability predictive determining as a in of factor components identification of future antisocial behavior. The primarily consisting photographs an of record, arrest fingerprints, to be of inestimable value in the iden- are said argument, apprehension of criminals. In oral tification respondent urged is that identification information so highly expur- operations essential law that enforcement gation regardless granted the circum- should not be of stances of arrest.1 Prospective
Dissemination o-f Arrest Records Employers persuasive Petitioners, however, offer evidence that mis- personnel use can of arrest records nonlaw enforcement seriously hamper endanger employment and educa- opportunities appears an ar- tional the arrestee. It that' practical commerce, matter, rest record world of as a legal presumption transmutes the into one of innocence guilt.2 stigmatization petitioners con- arrestee, as an job automatically many opportuni- tend, closes the door to applicant. ties othеrwise available the nonarrested is nonconvicted arres- There abundant evidence discriminatory subjected tee is to substantial sanctions job survey employers, marketplace. prospective employment percent candi- would refuse to consider an provides: 1C;f. which RCW 13.04.130 any photograph fingerprints taken of nor a shall be “Neither custody eighteen years age child taken into under purpose without the consent court.” generally acknowledges presumption of inno civilized 2“The world right right. Yet, this less human United States affords cence as a protec indeed, States, protection abroad; in the United than countries communist to that tion this inferior times human coupled widespread protection, abuse in This countries. lack of with thorough suggests making arrests, revision United needs a States important espеcially handling records. a reform of arrest Such significant part population has States a in the United because and finds it difficult not lead to a conviction records that did especially employment, Hess & and untrained.” if unskilled obtain Leading Conviction, Poole, Not Arrest Abuse the Record Delinquency 494, 501-02 & Crime Stud- Two Skolniek, & date with an arrest record. Schwartz survey Stigma, Legal A Prob. 133 10 Social ies of percent employment agencies revealed York New applicant accept with an arrest would for referral (D.C. Menard F.2d n.17 Mitchell, record. *6 (D.D.C. 1970), part, Supp. in F. Cir. 1971). Many employers dismissed against hiring policy an a flat have applicant. supra Poole, arrestee See Hess & at 496. Several may panoply of arres- disabilities that attach applicant job Report tee in in the market are discussed Investigate Committee to Pоlice Arrest Records Effect of Employment Opportunities on District in the Columbia (C. 1967) (hereinafter 10-20 Re- Duncan, Chmn. Duncan port). potential employer the ar- Whether the assumes disreputable merely rested individuals to be of a nature or expense wishes to eliminate the in- inconvenience and quiry into the circumstance arrest is immaterial —the applicant employment. Hiring is barred from sanctions against solely the arrested individual exist in the do not private governmen- sector, but are also in evidence some agencies, despite policies tal contrary. Comment, Hiring: The City Arrest Record and New York Public An Evaluation, 9 Colum. J.L. & 469-94 Social Prob. (1973); Report, supra Duncan at 10-20. there Furthermore, is stigmatization may place evidence a similar take system. within Delinquency the education Polk, & Schafer and the Schools in the President’s Commission on Law and Administration Task Force Re- Justice, Enforcement port: Delinquency Juvenile and Youth Crime juvenile, Thus, many the arrested instances, barred occupational opportunities from educational ir- respective guilt of his or innocence of misdeed.
Were a there substantial correlation between the factor job performance, arrest and future the interests employer in arguably might such information override the possibility of misuse of the is, record. There little however, than arrestee a worse risk nonar- evidence that his counterpart. 11-year performance rested records n City police 1,915 New arrested and York nonarrested City Insti- officers evaluated New York Rand were survey prior tute. The a had no de- revealed arrest job performance. bearing upon Indeed, monstrable later prior category, at least one arrest officers with surpassed experi- their brethren without supra Prob., ence. See J.L. & Comment Colum. Social study employees public 462-63. In another wherein honesty, punctuality, judgment, attendance, criteria were: accuracy cooperativeness, no initiative, industriousness, performances of difference was found between the arrested Door: Miller, civil H. The Closed nonarrested servants. Employment with on State Criminal Record Effect of Agencies (1972). Accordingly, a and Local Public 95-99 validity predictive prior record arrests is of doubtful probable job performance.3 index youthful plight of arrested nonconvicted offenders *7 society. probability consequence that of no small in our The average American child will arrested before male be age percent, of 25 the female child 18 exceeds for upon probability slightly percent (based 1965 under 7 probabilities). Projected Percentage Christensen, of Population with Criminal Arrest and Conviction Re- TJ.S. in the President’s on Law cords Commission Enforcement Report: Justice, and Administration Task Force Science of Technology complex sociologi- 222 Due to may experience significantly reasons, cal some a minorities Report, supra higher, of incidence arrest.4 Duncan and Ad- 7-9; Commission on Law President’s Enforcement Challenge in a Free Justice, ministration The Crime 3The Columbia Presidents Commission on Crime the District of prior employers (1966), suggested 454 that has the recommendations only source, of source, accurate are not a a more more reliable but also regarding prospective employee. information а - solely prior upon employment a arrest record based from 4Exclusion Gregory Systems, Inc., rights. v. Litton may applicant’s civil violate (9th aff’d, (C.D. 1970), F.2d 631 Cir. Supp. 401, 472 Cal. 403 316 F. 1972). 225 on Report Society (1967); Commission the Presidents 75 (Appendix 494-510 Columbia in the District Crime Records, 1966); Arrest on the Basis Note, Discrimination personal eco- Hence, the 470 L. Rev. 56 Cornell may wrought or misinter- misuse be nomic havoc that significant portion pretation a affect of arrest records populace. singularly inappropriate happenstance of a The arrest is may seriously society stigma a for to attach occurrence handicap juvenile into adulthood. as matures he judgment made decision to arrest is often an instantaneous upon arresting man, officer, one based whatever disposal. instances, information is at some arrests are his identify, product Mitchell, of mistaken Menard v. 328 cf. Supp. (D.D.C. 1971); illegal F. 718 the arres- result tee’s Irani freedoms, valid exercise of First Amendment see (D.C. 1971); App. v. District Columbia, A.2d 849 Henry Looney, (1971) ; 65 Misc. 2d N.Y.S.2d police Hughes or the result harrassment, v. Rizzo, see Supp. (E.D. 1968); F. Pa. Wheeler v. Goodman, 298 F. Supp. (W.D.N.C. 1969); United States v. McLeod, (5th 1967). F.2d Cir. At the time of arrest the cannot, expected consistent with sound law enforcement, degree certainty to meet desig- some above what is now “probable By nated society cause.” the same token, system justice youth of criminal should not brand opprobrium life with the associated with the arrestee status merely because the constable has blundered. theory system underlying our courts upon premise
based through sys- contact with the tem the generally will benefit. See Pound, Juvenile reprinted Court and the Law in 10 Crime Delin- & *8 quency (1964). salutary goal This cannot bе accom- plished seriously if the arrest impedes mechanism occu- pational or opportunities youth educational that are by juvenile to be justice served system. misinterpretation by
Misuse or prospec- of arrest records employers concep- detractor from tive needless
tually juvenile protective nature of the courts. While the jurisdiction not release involved in the case will instant by arrestee, arrest information such without waiver protections meaningless is a condition are when waiver precedent employment. the Re- Poole, Hess & Abuse of Leading & Conviction, Not 13 Crime cord Arrest reports Delinquency literature are The complications examples legion of the harmful with e.g., Gough, may See, arrest. flow from an erroneous Expungement Adjudication Juvenile Records of L.Q. Wash. U. Status, A Problem Adult Offenders: example poignant of the mischief that be 147. A records was the misuse of caused privacy and invasion of a defamation basis successful P.2d 793 Brink v. 65 Wn.2d Griffith, action in relatively prior, ancient, case, In that plaintiff used the town had been arrest record summary mayor justification support dismissal his police. plaintiff employment chief of Unfor- from as the job against prospective tunately, worked the discrimination rarely applicants sta- arrestee so candid as to illuminate Gregory rejection. Litton But tus as basis cf. 1970), (C.D. Systems, Supp. Cal. Inc., 316 F. 1972). (9th Cir. aff’d, F.2d support convincing foregoing for a seems to me most precipitated consequences conclusion that the serious availability prospec- ready the too of arrest information predictive supposed employers outweighs tive far whatever theoretically may thought employment function it as to overwhelming of author- I consensus to serve. note that the e.g., Duncan Re- See, ities has a like conclusion. reached port, supra President’s 23; at Recommendations of and Administration Commission on Law Enforcement Delinquency Report: Task Force Juvenile Justice, Challenge in a (1967); Crime Youth Crime 38-40 Society, supra supra & 18; Hess Miller, Free at 87-88; at H. supra supra Gough, Comment, 9 Poole, 168-74; 502-05; at passim; supra, Comment, Prob., & Social J.L. Colum.
227 44 Miss. L.J. Unconvicted, Branded: Arrest Records of Arrest: The Comment, Removing Stigma 928 (1973); Arrestees, 47 and Unconvicted Courts, Legislatures and Note, Retention 659, passim Wash. L. Rev. (1972); U. 38 Response, Dissemination Arrest Records: Judicial Rev., Cornell L. Note, 861-74 56 (1971); Chi. L. Rev. Police, 478-81; Note, Juvenile supra Delinquents: at Courts, Individualized 79 Harv. L. Rev. Justice, State 6 Civ. Liv. (1966); Note, 799-801 Harv. Rights-Civ. 165, 172 L. Rev.
In accordance with the fundamental fairness principles in our imрlicit juvenile justice, my institutions it is best that information judgment to arrests not relating to leading the conviction of a released juvenile may not be under any circumstances prospective or employers nonrehabili- tative educational institutions.5 Furthermore, in this regard, petitioners are entitled to appropriate protective judicial relief. by
Retention of Arrest Records Law Enforcement Agencies
Petitioners
at
case
bar seek not only to protect
their records from disclosure to prospective employers, but
also the
or
return
expunction of all
police,
arrest-related
confidentiality
by
5The
of arrest
records
maintained
State Bu
Criminal
reau of
Identification
is mandated
RCW 72.50.140. Violation
gives
damages,
including damage
this statute
rise
an action for
reputation under RCW 72.50.170.
It
power
is not within the
of this court
to mandate
the removal
job applicаtions
questions
from
private
employers
relating
prior
employment
applicants.
Rights
records
But
Act
Civil
ef.
2000e,
seq.; Gregory
Inc.,
42
Systems,
U.S.C.
et
Litton
F.
v.
Supp.
(C.D.
1970),
(9th
1972).
aff’d,
Cal.
There expunction provides or for either automatic tions which procedure sealing records, the ar- or which of arrest expunction mаy petition or return of records. See for restee supra Miller, also in H. at 234-50.See of statutes summaries supra Gough, Erasure Criminal Arrest 150-86;Jacobs, (1973); Conn. B.J. 2 Statute, 47 Connecticut Records: n.27. In most coun- L. Rev. Comment, 1971 Utah expunction is no need for there world, the civilized tries of only records of include convic- criminal statutes supra at 500-01. Poole, &Hess tion. provisions Washington include several which laws varying expunction under circum- need
alleviate
fingerprints
photograph
Washington,
stances.
custody may
a minor in
not be
taken without consent
expunge-
court. RCW 13.04.130.Petitioners seek
probation
ment of social records
maintained
officer.
provides
RCW 13.04.230
that destruction of these records
may be had at the discretion of the
Further,
court.
RCW
13.04.250 allows the selective destruction of records of
youths
Depart-
who have been
committed
the care of the
upon
majority.
reaching
ment of Institutions
their
In addi-
penalties
tion, this
has
court
ordered
removal of all
plea
guilty upon
disabilities attendant to a
fulfillment of
probation
pursuant
requirements
to RCW 9.95.240.Matsen
piecemeal
Kaiser,
Wn.2d
The fundamental the was expression by given Supreme the United States Court in Boyd States, United 116U.S. v. L. Ed. 746, 6 S. (1886): Ct. 524 opinion principles [by laid down in this The Lord Carrington, Entick Camden in v. 19 How. Tr. 1020] St. very liberty affect the essence of constitutional and secu- They
rity. the reach farther than concrete form of the court, its case then before the with adventitious circum- they apply part stances; all on to invasions the sanctity government employes and its of the of a man’s privacies breaking home and his life. It is not the rummaging drawers, doors, and the of his that consti- invasion of offence; essence of the but it tutes the his erty personal security, right personal lib- indefeasible right private property, never has and wherе public offence, been forfeited his conviction of some right —it is invasion of this which underlies sacred judgment. and constitutes essence Lord Camden’s Breaking opening a and drawers into house and boxes any aggravation; are circumstances of but forcible testimony compulsory private papers of his of a or extortion man’s own to convict him to be used as evidence goods, crime or to forfeit his is within the condemnation judgment. regard and Fifth In this Fourth almost run Amendments into each other. right intermeddling to free in one’s from officious
personal
originally
concept
affairs as a
of tort law was
proposed
in a landmark article
Sammuel Warren
Right
Privacy, 4
L. Rev. 193
Louis Brandéis in The
Harv.
By
(1890).
sequel
the time of
intellectual
William
its
Privacy,
(1960),
right of
48 Cal. L. Rev. 383
Prosser
privacy
principle
of American
had become
established
jurisprudencе.6
Brink
Wn.2d
Griffith,
civil
(1964).
Miller, The Assault on
See also A.
tenet 510, 85 Ed. 2d S. Ct. 1678 479,484, 14 L. U.S. Legislature Washington has, enactments, 6Through State many zealously guarded privacy. areas, Inter the individual’s recording divulging personal or communi cepting, written electronic gives 9.73, also rise a civil violation of is a criminal RCW cations judge family permits damages. court to 26.12.080 for action RCW privacy public protect part of the individuals. flies close guarding privacy protections proscribed of individ are Similar hearings. and RCW 71.06.170. RCW 71.02.160 uals in mental illness powers data communica branch establish state of the executive *12 pro adequate safeguards system to processing must include tions citizenry, privacy One who submits RCW 43.105.040. of the
tect
drug
of our state’s alcohol and
and treatment
the care
himself
to
not fear that his record of treatment will be
centers need
rehabilitation
brought
69.54.070,
him,
.080. Further
the State
RCW
forth to haunt
required
to maintain strict
RCW 72.50.140
Identification
Bureau
keeping.
confidentiality
in its
of the
Rights
penumbras,
specific guarantees in the Bill of
have
help
guarantees that
formed
emanations from those
give
Ullman,
them life
Poe
367 U. S.
and substance. See
v.
guarantees
(dissenting opinion).
497, 516-522
Various
privacy.
right
create zones of
of association con-
penumbra
one,
in the
tained
of the First Amendment
prohibi-
as we
have seen.
Amendment
The Third
against
quartering
tion
“in
house”
of soldiers
peace
time of
facet
without the consent
owner is another
of the
privacy.
explicitly
The Fourth Amendment
“right
people
affirms the
of the
be secure
their
to
persons,
papers,
against
houses,
effects,
unreasonable
searches and seizurеs.”
Self-Incrimination Clause
in its
The Fifth Amendment
the citizen to create a
enables
privacy
government may
zone of
which
force him to
not
pro-
surrender to his detriment. The Ninth Amendment
vides: “The enumeration in
certain
Constitution,
rights,
deny
disparage
shall
construed to
others
people.”
retained
clearly
Griswold
mar-
established that the
intimacies
riage relationship
pri-
protected
were within
zone
vacy.
recognized
possession
The court soon
ob-
that the
privacy
scene material
was
within
one’s home
protected. Stanley
equally
Georgia,
557,
v.
22 L.
U.S.
privacy
2d 542,
Ed.
protected
Ct.
S.
The marital
equally
in Griswold was extended
to unmarried
individuals in Eisenstadt v. Baird,
438,
405 U.S.
31 L.
2d
Ed.
Ct.
92 S.
Wade,
Roe
U.S.
(1973),
L. Ed. 2d
66A.L.R. 376 The makers of our Constitution undertook to secure con- pursuit happiness. ditions favorable . . . They protect sought to Americans in their beliefs, their thoughts, They their emotions and their sensations. con-
232 right against let he Government, the
ferred, the right rights comprehensive and the alone—the most right, hy protect that valued To most civilized men. every upon unjustifiable hy Government intrusion the privacy em- individual, the the means the whatever ployed, Fourth he must deemed violation of Amendment.
(Italics ours).
right
recently
This court
affirmed
has
privacy
implicit
Rights,
as an
but
emanation
Bill
of the
by
equally
outweighed
not an
funda-
absolute
when
right
people
mental
of the financial
of the
to be informed
relationships
representatives. Fritz v. Gor-
of their elected
Additionally,
(1974).
we
517
ton,
Wn.2d
P.2d 911
right
hаve
to maintain
reaffirmed the
individual
Young
privacy
memberships.
Americans
of his associational
Freedom, Inc.
Arrest records been used in whether story impeach- present allow a his without defendant denying by prior convictions, and as a basis for ment appeal; they may prior con- or an be release trial judge determining sidered the sentence to given a convicted offender.. Dill, Colo. omitted). Davidson also
(Footnotes
record
The unenviable
P.2d
123, 503
collectively
“suspicion”
charges of
upon various
arrests
petitioners
not create
herein do
four
amassed
justice.
system of criminal
guilt
our
within
inference
of a noncon-
arrest records
criminal
retention
recently
victed arrestee was
considered
the Court of
Appeals
Eddy
App.
v. Moore, 5
Wn.
487 P.2d
review denied,
Judge applied compelling Gesell interest test in an expunge action to records to forwarded the FBI Califor- nia authorities. The federal court in Menard found itself jurisdiction expunction without to order of FBI plaintiff’s it arrest, state but was to able rule that solely identification files be to released authorized law agencies, prospective employers. enforcement and not to In its second consideration of the case, Menard Appeals United States Court of ordered the FBI to remove fingerprints Menard’s from criminal identification files. (D.C. 1974). Saxbe, Menard v. F.2d 1017 Cir. In so doing expunction noted, the court that the of such responsibility records is the FBI’s National (NCIC) Crime Information Center or the federal courts, agency enforcement but rests with the law that submitted original Thus, data. the Menard court reasoned that it province expunction by of the state was the courts order agencies enforcement with concomitant local law retrieval system. principles from the NCIC announced in the opinions Supp. prior F.2d 486 Menard at 430 and 328 F. resolutely and reaffirmed affirmed have been federal Murphy, (D.C. e.g., v. 478 F.2d See, Sullivan courts. Cir.), denied, cert. 414 U.S. 38 L. Ed. 2d S. (1973); Dudley, Supp. 945 Ct. 162 Bilick 356 F. v. 1973); Lykken (D. (S.D.N.Y. Supp. v. 366 F. Vavreck, 1973). Minn. expunge
In an action to a nonconvicted arrestee’s recently Supreme record, Court has held that the Colorado necessarily application compelling interest test is applicable properly competing balance the interests society. heavily Relying against those of individual Washington Appeals upon Court of the decision of the Eddy supra, Moore, held the arres- Colorado court v. paramount privacy right demonstrated tee’s P.2d Dill, 123, 503 Davidson v. 180 Colo. interest. societal (1972), Pitt. Rev. 205 noted, 35U. L. acknowledged Supreme has Court States United only rights privacy to fundamental extends concept liberty.” Wade, Roe v. “implicit of ordered in the I supra Slaton, Paris Adult Theatre v. also at 152. See 93 Ct. 2628 As noted Ed. 2d S. 49, 37 L. U.S. Judge Mitchell, Menard 430 F.2d 490-91 Bazelon *15 (D.D.C. part Supp. 1970), (D.C. 328 F. 718 dismissed Cir. supra), police 1971) maintenance of the arrest (quoted, juveniles presumably innocent of of multitudes records continuing sanctions, official and unofficial may to well lead & solely Poole, arrestee status. Hess of their See because right gainsaid supra. that the fundamental of cannot be It depriva- from invidious societal to be secure the individuаl personal into intrusions his unwarranted caused tions deserving higher rigid of the standard of no less life is Countryman, Diminishing Right scrutiny. judicial See Computer, Dossier and the Privacy: Personal 49 of (1971); Comment, Police Records Ar- L. Rev. Tex. of Right Them to Remove Police A rests: from for Brief (1972); Note, L.J. Maintenance and Louis St. Files, 17 Right Arrest Versus the Records Dissemination Wayne Privacy, Rev. L. analysis amply degree foregoing demonstrates the privacy may right infringed by individual’s which inva- Potential retention arrest records. police primar- sions of officials stems by law enforcement privacy ily their name and address. from retention of the arrestee’s contradistinction, information,”7 “criminal identification criminal may which be used detect possible subsequent But behavior does not for abuse. present potential same Moore, see v. P.2d 211 Eddy App. Wn. and ad-
Expunction records of arrestees’ names police har- substantially dresses precludes possibility police assment of an solely individual based former arrest. upon In my the fundamental opinion, consonant with the state should be demonstrate privacy, required interest in retention of of the arrest compelling components record that include or addresses, names petitioners’ other information, similar which lead the from police juvenile.8 arrest file to the Eddy Moore, supra; Mitchell, Menard v. 328 F. Supp. (D.D.C. 1971). trait
Conversely,
cataloging by
or characteristic
criminal
identification information
for the
precludes,
most
part, any invasion
privacy by
misuse of
police
such data.9
7By the term “criminal
identification
information”
I
refer
those
components
fingerprints,
photographs
of the record of arrest
such as
or
operandi
identifying
modus
filеs
are
which
indexed
trait
course,
and not
characteristic
the arrestee’s name and
Of
address.
part
the name and address of the individual
are a
of each criminal
file,
only by
identification
but
access to
name and address
is had
connection with the indexed trait or characteristic.
requirements
8I
do
consider
of article
6 of
section
City
anything
respondent
Seattle
Charter
to mandate
more of the
chief
keep
purposes.
than to
accurate
for statistical
requirement
necessarily
That
does not
include the arrestee’s
identifica
tion.
acutely
commonly expressed
9I am
aware of the
fears
crea
society
“Big
computer digests
tion
an Orwellian
in which a
Brother”
possible
concerning
every aspect
retrieval bits of information
of our
*16
daily
fears,
aspect
privacy
I
livеs.
share some of those
but
this
is
presented
storing
in the
case. If
instant
the
of criminal
identifica
socially undesirable,
problem
legisla
tion information
it is a
for the
(1st
(1974)).
ture.
Senate Bill 3094
Ex. Sess.
See also
Cf.
California
Shultz,
(U.S.
Country
Apr. 1,
Bankers Ass’n v.
1974);
237 Systems, Reg. (1974). proposed Justice Fed. Under regulations required the FBI be and state authorities would to seal all arrest records that do result a conviction disposition Proposed or other adverse to the individual. Regs, Systems supra 20.22(b), § Criminal at Justice for upon adoption regulations, 5637.Moreover, of the individu- als will be allowed access to and federal records state accuracy Proposed Regs, completeness. ensure their and for Systems (d), supra § Criminal Justice In 20.22 at 5637. addi- legislature currently considering tion, the state bill a system comprehensive proce- which would establish a safeguards dural which include the ex- would automatic juvenile punction period adult arrest records after a days. proposed of 120 act bar would nonlaw enforce- records, ment dissemination of all arrest while records open public inspection. conviction would be See, Senate (1st 1974). way By ap- Bill 3094 Ex.Sess. of contrast, the proach suggested only portions herein rеach would those protected by records, i.e., arrest names and addresses, constitutionally guaranteed right privacy. It would portions allow retention of other of the records of criminal supra. 7, arrest. See footnote foregoing
For the
reasons, I
believe
different result
by
majority
than
reached
is dictated
the constitu-
privacy.101,
majori-
tional
therefore, dissent to the
majority opinion
10The
misconceives
of the result
thrust
which
urged
suggested
disturbing,
I
manner,
here.
have not
background
by juvenile authorities,
argue
data maintained
nor do I
expunetion
the total
records.
Moreover,
disagreement separates
majority’s
a fundamental
rea-
soning
opinion
majority
this
dissent. The
asserts that a
sentencing judge.
record of arrest
be of assistance to the
In view
parens patriae
court,
nature of the
this
on its
assertion
beguiling appeal.
however,
examination,
face has a certain
Closer
suggests
fraught
that it is
with constitutional difficulties.
accorded,
minimum,
panoply
must
the full
process guaranties
Gault,
due
accorded
adults.
re
387 U.S.
L.
Ed.
2d