Colorado judge orders Columbine police tapes released

Friday, May 26, 2000

A roundup of recent court cases, legislation and disputes involving public records.

DENVER — A judge has ordered the Jefferson County Sheriff’s Office to turn over tapes of radio communications from the Columbine High School shootings to several families who are suing the agency over its handling of the case. Jefferson County District Judge R. Brooke Jackson on May 23 ordered the release of eight tapes, most of which are 90 minutes long. The tapes contain radio transmissions, car-to-car communications and command-post communications relating to the April 20, 1999, shootings at Columbine. Jackson ruled that the tapes must be edited before they are released to delete references to a named suspect who was later cleared and to remove the addresses of the gunmen’s families. Jefferson County Sheriff’s spokesman Steve Davis said May 23 that authorities were still trying to determine how and when the tapes would be released to the families who requested them and to the public.

The families of shooting victims Dan Rohrbough and Kelly Fleming requested the tapes and other investigative materials from the Jefferson County Sheriff’s Office under the state’s Open Records Act. The families of several other victims joined in the request. Earlier this month, Jackson ordered the sheriff’s office to edit the 911 tapes made during the shootings and release them to families of some of the victims and gunmen. Barry Arrington, an attorney for the Rohrbough and Fleming families, said he was still waiting to receive copies of the edited 911 tapes. Davis said he did not know when those tapes would be available.

Earlier this month, the Jefferson County Sheriff’s Office released its investigative report on the shootings to the public. The report, released on CD-ROM, included video and audio clips as well as a timeline, photos and several reports and documents. Critics said the report lacked background information on witness statements, ballistic reports and an exact timeline. Some said it was a self-serving report by an agency that faces litigation. More than a dozen Columbine families have filed lawsuits over the handling of the school shootings. Columbine seniors Eric Harris and Dylan Klebold killed 12 students and a teacher, and wounded dozens of others, before taking their own lives. Associated Press

Wyoming: Judge orders public disclosure of files in prosecutor’s death
CHEYENNE — A judge has ruled that the state Division of Criminal Investigation must make public most of its files in the death of former Campbell County Attorney Michael Maycock. First District Judge Edward L. Grant specified that several items must be removed from public scrutiny because they mention “references and allegations related to third parties” or “personal family information and graphic photos.” The (Gillette) News-Record sued DCI for release of its files in Maycock’s death. Campbell County Coroner Tom Eekhoff ruled that Maycock died Sept. 11, 1998, at his ranch because of strangulation by sexual asphyxia. While Eekhoff was ordered by another judge to release autopsy and toxicology reports, his file did not include all lab reports and no material from law enforcement agencies that investigated the death.

In a ruling issued on May 16, Grant agreed that much of the material should be released, saying the federal Freedom of Information Act “generally mandates that investigatory files are subject to disclosure.” But, he said, it also allows for exceptions. “In this case, the record contains numerous references to third parties, many of which are accompanied by unsubstantiated allegations of misconduct,” he said. “These third parties and their accusers have a substantial privacy interest in the nondisclosure of the portions of the report which pertain to them.” Grant also said that “while the public records act generally promotes disclosure, it does not do so without a conscience.” He listed 15 instances of material that would remain sealed, including specific paragraphs, pages, reports and photos that show Maycock’s body.

News-Record attorney Bruce Moats said the ruling “confirmed that the exemption to the public-records act is limited and blanket nondisclosure cannot be justified. Custodians (of public records) must demonstrate a clear harm before they can withhold them.” DCI wanted to release nothing from the file, saying to do otherwise would hinder its ability to interview people in future investigations. Associated Press

Ohio: Police union wants say in open-records lawsuit
COLUMBUS — A police union told the Ohio Supreme Court on May 24 that it should have a say in whether a newspaper should get requested police records. The local Fraternal Order of Police asked the court to include it in a lawsuit the Dispatch Printing Co. filed last June against the city over the release of police disciplinary and complaint records. The union wants the chance to argue that the records shouldn’t be available to the public because they would have been shredded if the city had not broken a collective bargaining agreement requiring it to destroy public documents on schedule after a given period of time, said union attorney John Kulewicz. The Dispatch Printing Co., the parent company of The Columbus Dispatch, says that under Ohio’s open-records law, the public is entitled to any record that is kept until it no longer exists, except those the Legislature says are exceptions.

Because the requested documents exist, they should be turned over, Dispatch attorney John Zeiger told the court. The newspaper wants an index of citizen complaints against police and an electronic database of police disciplinary cases, both of which might be related to a U.S. Department of Justice investigation into alleged civil rights violations by police. The state Supreme Court delayed the records’ release until it rules on whether the police union should be included in the lawsuit. The Franklin County Common Pleas Court had ordered the release of the records and did not rule on the union’s request to intervene. The 10th Ohio District Court of Appeals upheld that ruling. Kulewicz told the high court that the union didn’t get an adequate chance to present its case. “If we’d been let in then we could have said that because of our contract with the city, these records should have been gone,” he said.

At the very least, Kulewicz said, the state Supreme Court should require the lower courts to include the union and allow it to argue against releasing the records. “So long as those records are considered public records, in accordance with the bargaining agreement and the city ordinance they should be removed and destroyed on a certain date,” he said. The records were available to the public for six years before they were to be destroyed. Zeiger said that even if the union is included, the issue still will be who decides what constitutes a public record. “They say their collective bargaining agreement trumps the public-records statute, but that is not the case,” Zeiger said. Justice Evelyn Lundberg Stratton asked Kulewicz why these records aren’t an exception to the bargaining agreement, which states that the city doesn’t have to destroy records on schedule if those records are involved in litigation. Kulewicz said the Department of Justice has not said which records are being used in its case against the city and therefore it is not known if these records are involved in a pending case. Associated Press

Wyoming: County argues for dismissal of newspaper’s lawsuit
CHEYENNE — Laramie County has asked a judge to dismiss the Wyoming Tribune-Eagle‘s lawsuit seeking information about inmate suicides at the county jail. The county argued to dismiss the lawsuit seeking access to an independent report on the adequacy of suicide prevention measures at the jail. The paper sued after Sheriff Roger Allsop refused to release the entire report, citing security reasons. On May 19, the county’s attorney, Peter Froelicher, contended the report was exempt from the state open-records law. Publication of the report would jeopardize safety at the jail, he said. The newspaper’s attorney, Bruce Moats, said the exemption applies to criminal investigations but not recommendations for improving the jail. Eighth District Judge Keith Kautz is expected to decide on the county’s motion for summary judgment. Associated Press