Maricopa County attorney seeks to usurp police control of records, video

A letter from Maricopa County Attorney Bill Montgomery to the region's police departments spells out, apparently for the first time, a system that puts the prosecutor's office in control of whether police records are released to the public or withheld.

It warns of financial consequences for police departments that don't comply.

The letter, obtained by The Arizona Republic, makes no direct mention that long-standing Arizona law and court rulings hold police records to be presumed public.

It lists reasons Montgomery believes such records might need to be withheld. It spells out a process to limit release of video evidence only for law-enforcement purposes, and describes how prosecutors will pursue protective orders from judges to help keep records private.

State law allows anyone who is denied access to a public record to challenge the decision in court. Montgomery's letter, though, promises police agencies that if they are sued over withholding records, he will "indemnify" them.

Then it warns the departments that if they don't comply, they may be hit with a bill for the County Attorney's Office's legal fees later in the case.

"The desires of the public and media to view firsthand evidence of criminal conduct, particularly video evidence, will remain unabated," Montgomery writes in the letter. "Equally so is our continuing duty to protect the rights of the accused, any victim, and the integrity of a criminal investigation and prosecution. Our criminal justice system deserves no less to maintain our community's trust and confidence."

The Republic reviewed the letter with attorneys, law-enforcement officials and academics. Some agreed with Montgomery's stated goal to protect the integrity of a criminal prosecution. Others were shocked by the idea that a county prosecutor — who does not supervise or represent city police departments — would attempt to control their records. They warned that the system outlined in the letter would have a chilling effect and referred to it as "not authorized" or "a big mess."

"The public at large should be worried," said Tom Irvine, a longtime private attorney who has previously represented the Maricopa County Board of Supervisors, after reviewing the letter. "If you can't get information about what's happening on criminal matters in your community, or know if police are acting improperly, then you have a big problem."

"There's a carrot and a stick," said David Bodney, an attorney who represents The Republic and other local media outlets. "Withhold records when we tell you to withhold them and we'll indemnify you if you are sued. But produce documents that create a change of venue and we may look to you for costs. That's unprecedented."

It's unclear whether police agencies consistently follow the steps Montgomery outlines. The letter, dated May 8, says the process "has been in effect, though not having been reduced to writing, for at least the last three years."

Representatives of police departments in Phoenix, Tempe, Mesa, Scottsdale, Goodyear, Buckeye and Surprise, along with the Maricopa County Sheriff's Office, declined to comment about the letter, saying only that they were reviewing it.

Glendale Police Chief Rick St. John said he could see how some might read the letter as a threat. But he said he believes Montgomery was only explaining that his office wouldn't pay for costs incurred based on another law-enforcement agency's decision if it was in violation of the policy.

"I think Mr. Montgomery knows that at the end of the day, chiefs of police have the right to release information to the public that we're not bound to protect under rules of the court," St. John said. "He has a different set of rules that he's playing by.”

What the letter says

Montgomery's letter states that police agencies in the county should confer with the Maricopa County Attorney's Office after receiving a public-records request in an ongoing criminal investigation — whether the request comes from a news-media outlet or private individual.

A "fair and full review" of the request could show the evidence cannot be released, and the media outlet would be notified its request was denied, the letter says. If a media outlet challenges the decision in court, the County Attorney's Office — and thus, taxpayers — will cover the law-enforcement agency for fees and costs awarded by the court, the letter says.

If police records are released outside of this process and litigation arises over a possible change in venue for a trial, the county attorney will seek reimbursement of any costs from the police agency involved, the letter says.

The letter says evidence could be released without a public-records request "to further a legitimate law enforcement purpose," and the County Attorney's Office will work with the law-enforcement agency to decide what records may be released and in what manner, the letter said.

Records could be released to "prevent imminent civil unrest" or "clarify or correct false or misleading information that has been broadcast through traditional media or social media platforms."

The letter does not describe a scenario in which police would release full video evidence. It does describe steps to limit release of video. Transcripts or selected details could be shared, it says, or "a select group of community representatives" could review a specific portion of a video.

Romley: 'I'm not even sure you have the authority'

Rick Romley, who served as the Maricopa County attorney from 1989 to 2004 and in 2010 on an interim basis, said Montgomery's tone in the letter could strain relations between the prosecutor's office and police departments.

From a legal point of view, Romley questioned if Montgomery could determine what public-records requests could be fulfilled.

"I'm not even sure you have the authority to do that," he said after being told about the letter. "Or the authority to demand to pay for the costs in change of venue."

Overall, Romley said, if Montgomery had sought out his legal advice, Romley would have suggested he not send out the letter.

"I don't think it's the wisest thing," he said.

Romley said that any prosecutor would want to preserve the integrity of a criminal investigation. However, he said, it seems unlikely the release of records would force a court case to be moved to another jurisdiction. He said during his time as a prosecutor he can't remember a case that had to be moved to another county.

Police departments ultimately have the final decision on what records should be released in a request, he said. If police departments are not sure if a record can be released, their cities have attorneys who can answer those questions for them, Romley said.

"You have to trust the legal advice the agencies are getting from their own attorneys," he said. "It's almost as if you don't trust the police department to do a good job."

Amanda Jacinto, spokeswoman for the County Attorney's Office, denied the letter suggests that in any way.

The letter was not spurred by any specific incident, she said in a statement to The Republic. Rather, it was sent to outline unwritten rules "before any particular situation came up."

Montgomery has moved to restrict the release of information in other areas as well.

The Maricopa County Medical Examiner’s Office now automatically defers to the County Attorney’s Office before releasing autopsy reports for homicides, reports with an unknown cause of death, and deaths that occurred in law-enforcement custody. That is contrary to current policy in other Arizona counties, and contrary to what it has done in the past.

Supporters: It's a balancing act

Others supported Montgomery's position in his letter to police.

Paul Charlton, a defense attorney and former U.S. attorney for the District of Arizona, agreed with Montgomery's policy, noting that much of the language mirrors existing rules of procedure for ongoing cases.

"I think this is a reasonable and appropriate letter," Charlton said in an email. "He is setting a rule that meets due process and ethical requirements, applying it uniformly, and promising to indemnify law enforcement agencies who follow his letter's dictate."

Paul Bender, an Arizona State University law professor and dean emeritus for the Sandra Day O’Connor College of Law, said, "Such a policy will inevitably reduce transparency, since it will hide some things from view that can be relevant to the public. But the public's interest has to be balanced against privacy and law-enforcement considerations."

Michael Scott, a former police officer who teaches criminal justice at ASU, said he has never heard of a stringent policy such as Montgomery's. Still, he said it is something that needs to be done in order to balance the public's interest in a criminal case while avoiding potentially jeopardizing the legal process.

"While there might be a need to fine-tune this policy on the basis of experience with its application, it seems to me that it is a move in a positive direction, trying to balance competing interests over access to information about criminal investigations," he said.

Who has the right?

Bodney, the attorney for The Republic and other media outlets, said the letter — and the letter's blurring of lines between public records and evidence — challenged precedent about the presumption of public access to public records in Arizona.

"A prosecutor has no business dictating the police's duties under the public-records request law," he said Friday.

"Democracy depends on an informed electorate, and important information essential to our self-government can be found in these public records," he added. "Citizens shouldn’t be required to sue and fight for information that tells us what our government's up to."

David Derickson, a defense attorney and a former presiding criminal judge at Maricopa County Superior Court, pointed out that the Maricopa County Attorney's Office does not yet have jurisdiction over criminal investigations carried out by municipal police departments before they are referred for prosecution.

"How is it that the Maricopa County Attorney's Office has the right, duty and obligation to be directing the local law-enforcement agencies?" he asked.

Derickson likened the case to former Sheriff Joe Arpaio taking it upon himself to enforce federal immigration law, which cost county taxpayers millions of dollars in judgments. Montgomery's letter threatens financial sanctions against the municipalities and offers to indemnify those departments for legal costs. But it's not clear how he could, from a legal standpoint, be counsel to the municipalities without an agreement by elected boards.

"Bill Montgomery is not authorized by the county or any state laws to say the county is on the hook for this," Derickson said. "He doesn't have the authority over any chartered municipality. Period!"

Irvine, the private attorney, said he, too, was struck by Montgomery's apparent effort to "unilaterally amend the state's public-records request law."

The letter does not recognize that cities or towns’ lawyers are public officers in charge of their own records and they make the ultimate decision on what should be released, Irvine said. It also fails to address how the Arizona Legislature has dealt with Montgomery's concerns about public-records law by protecting information for some victims, such as minors, and the redaction of some identifying information that could harm a person if it was made public.

The letter could create a chilling effect for police agencies and their attorneys, Irvine said.

"If you are a city or a town attorney, and you look at the records-request law and you look at what the county attorney tells you to do," he said, "do you follow the law or the county attorney?"

Transparency in other counties, states

The Flagstaff Police Department has one of the state's most transparent policies when it comes to releasing body-worn camera footage. The agency has its rules posted on a separate department website, pdtransparency.com.

Within hours of a police shooting, officials publish video of the incident online, often with limited to no redaction. They also post 911 calls and dispatcher audio about such critical incidents "in an effort to ensure the public has as much information as possible."

They operate independently of the Coconino County Attorney's Office when it comes to the release of video. Prosecutors have suggested they would prefer certain things not be posted publicly so quickly, said Cory Runge, police spokesman. But the police policy has not created any extensive legal consternation.

The two entities recognize they work together on cases but must act independently — especially when it comes to the release of police records and body-mounted camera footage.

"We view it as any other public record," Runge said.

The Coconino County Attorney's Office did not immediately return a call seeking comment about working with Flagstaff's records-release policy.

Law-enforcement agencies are known to communicate with, but operate apart from, county attorneys when it comes to releasing body-worn camera videos, said Cory Christensen, a Colorado police chief heavily involved in crafting national body-worn camera policies.

Though it occasionally spurs conflict, that autonomy and distinction between police and prosecutors is an important check and balance, especially when it comes to releasing records, Christensen told The Republic on Friday.

"It does feel like this attorney is frustrated with the different release policies and would like to see some consistency," Christensen said Friday. "There is a balance. I’m a fan of protecting investigations. But I'm also a fan of transparency as quick as you can have it."

RELATED: Phoenix PD rules about release of body-cam videos, reports upheld

Broader public-records law concerns

David Cuillier, a former Society of Professional Journalists president who teaches at the University of Arizona, said he understood the need to protect defendants' privacy, but argued that leaving the authority to a prosecutor's office and police departments was not in the public's best interest.

"Essentially, when you make everything go through the county and a bunch of attorneys sit around and try to decide what to release (and what not to release), it's essentially going to be closing off information to the public," Cuillier said. "It's going to be more secretive police, a more secretive judicial system in Arizona, and I don't think that serves the public better."

"I just think it's a big mess," he said, referring to the letter. "I mean, they need to stick to their own lanes. There's no reason for the county attorney to be taking on that liability or the authority of telling police departments what to do. It just doesn't make sense to me."

Dan Pochoda, a former legal director for the American Civil Liberties Union of Arizona, said Montgomery's letter could be viewed as an effort to make government more opaque. It would have been fine if the letter simply offered legal services to law-enforcement agencies with questions about a records request. Instead, he said, it was an attempt to gain veto power over a record's release.

"It's so general and so unnecessarily broad that it's clearly an attempt to stifle the public's valid right to know," he said.

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