Robert H. Dudley, Justice.
The primary issue in this case is whether the constitutional right to privacy should bar disclosure of public records which would otherwise be available for public inspection under the Arkansas Freedom of Information Act.
I. FACTS
Richard Lawrence, an attorney, testified at trial that he received a telephone call from his client, John Markle, at four o’clock on the morning of November 16, 1987. Lawrence disclosed to the police what Markle had said, but, asserting the attorney-client privilege at trial, refused to testify to more than that Markle asked him to come to his residence at 1820 Main Street in Little Rock. After Markle hung up, Lawrence tried to call him back, but was unsuccessful. Although we do not know from the trial testimony what Markle told Lawrence, it must have been alarming for it caused Lawrence to call the police to request that a patrol unit meet him at the Markle residence. Markle was in serious financial trouble and possibly faced criminal charges. When Lawrence arrived at the house, he found no policemen, so he circled the block and then noticed two patrol cars at a Safeway store at 17th and Main Streets. Lawrence described his plight to the officers, and Patrolman Armstrong agreed to go with Lawrence to the Markle house. They approached the house together. An outer storm door was unlocked. The main door was ajar about half an inch. Lights were on inside the house. Lawrence could see a black briefcase inside the house, and taped to it was a piece of paper bearing Lawrence’s name and address in red ink. Patrolman Armstrong went in and saw Markle’s body in an office which was just off the front hallway to the house. Markle had been shot. Patrolman Armstrong radioed for assistance and asked Lawrence to go back to the front porch. Another policeman came quickly, and they carefully began to search the house. They found the bullet-riddled bodies of Markle’s wife, Christine, and their young daughters, Amy and Suzanne. The two policemen secured the crime scene and called for detectives.
In conducting the crime scene search the detectives seized items they thought might constitute evidence in a criminal trial. This included guns found inside the house, and the black briefcase. In addition, crime scene and pathologist photographs were taken.
The detectives found a note from Markle stating that he had murdered his wife and daughters and committed suicide. The detectives photocopied the contents of the black briefcase and returned the briefcase and its original contents to Lawrence. Those photocopies are now in the Little Rock Police Department’s official files and include copies of:
1. two handwritten letters from Markle to his attorney, appellant Lawrence;
2. a diary containing Markle’s notes;
3. a handwritten letter from Markle to his mother, appellant McCambridge; and
4. miscellaneous notes.
Subsequent scientific tests proved that Markle had fired a gun, or guns, just before his death, and that the guns found at the scene were the ones that fired the bullets which killed the victims. The Little Rock Police Department considers the matter a closed case.
Appellants Lawrence and McCambridge filed suit against both the City of Little Rock and the Little Rock Police Department seeking to restrain the department from releasing the items listed above and the photographs from the department’s official files. Appellant McCambridge, Markle’s mother, is an Academy Award winning actress, and as such she is a public figure. The Little Rock Police Department asked the trial court to rule that it did not have to release information gained from informants. The trial court ruled that all of the items mentioned must be disclosed under the Arkansas Freedom of Information Act. We granted a temporary stay which prevented disclosure of any of the items. We dissolve that stay. For clarity, we discuss separately the points of appeal asserted by Lawrence, McCambridge, and the police department.
II. LAWRENCE’S POINTS OF APPEAL
Both of Lawrence’s points involve state law only. First, he argues that the police and pathologist photos are not public records under the act. The argument is without merit. As originally enacted, the act applied only to “records made, maintained or kept by any public or governmental body.” Act 93 of 1967, Section 3. The definition of “public records” has now been broadened to provide that public records are those “required by law to be kept” or “otherwise kept and which constitute a record of the performance or lack of performance of official functions. . . .” Ark. Code Ann. § 25-19-103(1) (1987).
Police crime scene photographs and pathologist photographs are obviously “otherwise kept” for evidence in criminal cases as an “official function” of a police department. A citizen could examine crime scene photographs and pathologist photographs and, to some extent, evaluate the performance of a police department. The photos are public records and subject to the act. City of Fayetteville v. Rose, 294 Ark. 468, 743 S.W.2d 817 (1988).
Second, appellant Lawrence argues that the attorney-client privilege precludes disclosure of the two letters written to him by his client, Markle, and left in the briefcase. This argument is also without merit.
Appellant is attempting to create an exemption to the act other than those listed in Ark. Code Ann. §• 25-19- 105(b) (Supp. 1987). Twice previously, we have rejected such arguments. Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968); Scott v. Smith, 292 Ark. 174, 728 S.W.2d 515 (1987).
There are two reasons for the rejection" of the argument. First, the Freedom of Information Act should be broadly construed in favor of disclosure, and exceptions construed narrowly in order to counterbalance the self-protective instincts of the governmental bureaucracy. Second, the attorney-client privilege, A.R.E. Rule 502, is an evidentiary rule limited to court proceedings. A.R.E. Rule 101. It has no application outside of court proceedings and, therefore, cannot create an exception to a substantive act. Scott v. Smith, 292 Ark. at 176.
III. McCAMBRIDGE’S POINTS OF APPEAL
McCambridge asserts nine (9) points which in turn contain twenty-eight (28) subpoints based upon both state and federal law. She seeks to prevent release of Markle’s two letters to Lawrence, Markle’s letter to her, Markle’s diary, and the photographs. Many of the subpoints are so wholly without merit that we treat them summarily.
Appellant McCambridge contends that the Arkansas Freedom of Information Act is unconstitutional (a) on its face, and (b) as applied in this case. She contends that the act violates the Constitution of Arkansas, Article 2, Sections 2,3,6,8,15,18,21, 22, and 29. She also contends that the act violates the first, fourth, fifth, ninth and fourteenth amendments to the Constitution of the United States.
Free access — add to your briefcase to read the full text and ask questions with AI
Robert H. Dudley, Justice.
The primary issue in this case is whether the constitutional right to privacy should bar disclosure of public records which would otherwise be available for public inspection under the Arkansas Freedom of Information Act.
I. FACTS
Richard Lawrence, an attorney, testified at trial that he received a telephone call from his client, John Markle, at four o’clock on the morning of November 16, 1987. Lawrence disclosed to the police what Markle had said, but, asserting the attorney-client privilege at trial, refused to testify to more than that Markle asked him to come to his residence at 1820 Main Street in Little Rock. After Markle hung up, Lawrence tried to call him back, but was unsuccessful. Although we do not know from the trial testimony what Markle told Lawrence, it must have been alarming for it caused Lawrence to call the police to request that a patrol unit meet him at the Markle residence. Markle was in serious financial trouble and possibly faced criminal charges. When Lawrence arrived at the house, he found no policemen, so he circled the block and then noticed two patrol cars at a Safeway store at 17th and Main Streets. Lawrence described his plight to the officers, and Patrolman Armstrong agreed to go with Lawrence to the Markle house. They approached the house together. An outer storm door was unlocked. The main door was ajar about half an inch. Lights were on inside the house. Lawrence could see a black briefcase inside the house, and taped to it was a piece of paper bearing Lawrence’s name and address in red ink. Patrolman Armstrong went in and saw Markle’s body in an office which was just off the front hallway to the house. Markle had been shot. Patrolman Armstrong radioed for assistance and asked Lawrence to go back to the front porch. Another policeman came quickly, and they carefully began to search the house. They found the bullet-riddled bodies of Markle’s wife, Christine, and their young daughters, Amy and Suzanne. The two policemen secured the crime scene and called for detectives.
In conducting the crime scene search the detectives seized items they thought might constitute evidence in a criminal trial. This included guns found inside the house, and the black briefcase. In addition, crime scene and pathologist photographs were taken.
The detectives found a note from Markle stating that he had murdered his wife and daughters and committed suicide. The detectives photocopied the contents of the black briefcase and returned the briefcase and its original contents to Lawrence. Those photocopies are now in the Little Rock Police Department’s official files and include copies of:
1. two handwritten letters from Markle to his attorney, appellant Lawrence;
2. a diary containing Markle’s notes;
3. a handwritten letter from Markle to his mother, appellant McCambridge; and
4. miscellaneous notes.
Subsequent scientific tests proved that Markle had fired a gun, or guns, just before his death, and that the guns found at the scene were the ones that fired the bullets which killed the victims. The Little Rock Police Department considers the matter a closed case.
Appellants Lawrence and McCambridge filed suit against both the City of Little Rock and the Little Rock Police Department seeking to restrain the department from releasing the items listed above and the photographs from the department’s official files. Appellant McCambridge, Markle’s mother, is an Academy Award winning actress, and as such she is a public figure. The Little Rock Police Department asked the trial court to rule that it did not have to release information gained from informants. The trial court ruled that all of the items mentioned must be disclosed under the Arkansas Freedom of Information Act. We granted a temporary stay which prevented disclosure of any of the items. We dissolve that stay. For clarity, we discuss separately the points of appeal asserted by Lawrence, McCambridge, and the police department.
II. LAWRENCE’S POINTS OF APPEAL
Both of Lawrence’s points involve state law only. First, he argues that the police and pathologist photos are not public records under the act. The argument is without merit. As originally enacted, the act applied only to “records made, maintained or kept by any public or governmental body.” Act 93 of 1967, Section 3. The definition of “public records” has now been broadened to provide that public records are those “required by law to be kept” or “otherwise kept and which constitute a record of the performance or lack of performance of official functions. . . .” Ark. Code Ann. § 25-19-103(1) (1987).
Police crime scene photographs and pathologist photographs are obviously “otherwise kept” for evidence in criminal cases as an “official function” of a police department. A citizen could examine crime scene photographs and pathologist photographs and, to some extent, evaluate the performance of a police department. The photos are public records and subject to the act. City of Fayetteville v. Rose, 294 Ark. 468, 743 S.W.2d 817 (1988).
Second, appellant Lawrence argues that the attorney-client privilege precludes disclosure of the two letters written to him by his client, Markle, and left in the briefcase. This argument is also without merit.
Appellant is attempting to create an exemption to the act other than those listed in Ark. Code Ann. §• 25-19- 105(b) (Supp. 1987). Twice previously, we have rejected such arguments. Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968); Scott v. Smith, 292 Ark. 174, 728 S.W.2d 515 (1987).
There are two reasons for the rejection" of the argument. First, the Freedom of Information Act should be broadly construed in favor of disclosure, and exceptions construed narrowly in order to counterbalance the self-protective instincts of the governmental bureaucracy. Second, the attorney-client privilege, A.R.E. Rule 502, is an evidentiary rule limited to court proceedings. A.R.E. Rule 101. It has no application outside of court proceedings and, therefore, cannot create an exception to a substantive act. Scott v. Smith, 292 Ark. at 176.
III. McCAMBRIDGE’S POINTS OF APPEAL
McCambridge asserts nine (9) points which in turn contain twenty-eight (28) subpoints based upon both state and federal law. She seeks to prevent release of Markle’s two letters to Lawrence, Markle’s letter to her, Markle’s diary, and the photographs. Many of the subpoints are so wholly without merit that we treat them summarily.
Appellant McCambridge contends that the Arkansas Freedom of Information Act is unconstitutional (a) on its face, and (b) as applied in this case. She contends that the act violates the Constitution of Arkansas, Article 2, Sections 2,3,6,8,15,18,21, 22, and 29. She also contends that the act violates the first, fourth, fifth, ninth and fourteenth amendments to the Constitution of the United States.
Her constitutional arguments can be reduced to five basic assertions. They are: (A) the Arkansas Freedom of Information Act provides for a warrantless search and seizure without probable cause; (B) it provides for a taking of property without due process; (C) it violates the doctrine of equal protection; (D) it unduly chills free speech; and (E) it violated her constitutionally protected right to privacy.
A.
First, McCambridge lacks standing to raise the search and seizure issue, for fourth amendment search and seizure rights are personal and may not be vicariously asserted. Rakas v. Illinois, 439 U.S. 128 (1978). She had no expectation of privacy in the place searched, which was not her house, or the things seized, which did not belong to her. Second, the act, on its face, simply does not provide for searches or seizures. Third, the search and seizure did not violate either the federal or state constitutions.
An emergency or dangerous situation, described in our cases as “exigent circumstances,” will justify a warrantless entry into a house for the purpose of either arrest or search. Here, Markle’s personal attorney invited the patrolman to accompany him into his client’s house because he stated some danger or harm may have come to the family based upon the call from Markle. Once inside, the patrolman found Markle in a pool of blood. It was reasonable for the patrolman to see if the killer was still on the premises, and if the other family members were safe or needed help. The United States Supreme Court has held:
[W]hen the police come upon the scene of a homicide they may make a prompt warrantless search of the area to see if there are other victims or if a killer is still on the premises. . . . And the police may seize any evidence that is in plain view during the course of their legitimate emergency activities.
Mincey v. Arizona, 437 U.S. 385, 392-93 (1978). The briefcase was in plain view and its seizure as evidence was not unlawful. Therefore, the act, as applied, did not amount to an unconstitutional seizure.
B.
The Freedom of Information Act, on its face, does not provide for the taking of property without due process. Further, there is no taking under the act, as applied. A “seizure” of evidence by the police does not constitute a “taking” in the constitutional sense. Porter v. United States, 473 F.2d 1329, 1337 (5th Cir. 1973). Neither does the release of information pursuant to the Freedom of Information Act. There was no denial of due process in this case.
C.
The Freedom of Information Act provides for ten (10) exemptions from disclosure. Appellant McCambridge complains about number seven (7) which is for: “Unpublished memoranda, working papers, and correspondence of the Governor, Legislators, Supreme Court Justices, and the Attorney General;” Ark. Code Ann. § 25-19-105(b)(7) (Supp. 1987). She argues that it violates equal protection. No “suspect class” or “fundamental right” is involved in the exception to the act. Hence, the proper test is whether a rational basis exists for the legislation. Clements v. Fashing, 457 U.S. 957 (1982). Certainly, there is a rational basis for protecting the working papers of the Governor, the legislators, and the Supreme Court Justices from public disclosure. Such protection promotes and encourages free exchange of thought in each of the three branches of government.
D.
Appellant McCambridge alleges that the act chills free speech because citizens refuse to give statements to the police for fear that their statements will be made public under the act. However, she has no standing to challenge the act on free speech grounds as she does not assert that her speech has been chilled.
E.
McCambridge does, however, have a valid privacy argument. The Little Rock Police Department has completed its investigation of the crimes and now considers the case closed. The department is now ready to release the photographs and copies of items which were in the briefcase. Appellant McCambridge contends that the photographs and copies of writings are personal to her and are potentially embarrassing and harmful if disclosed. She argues that their release will violate her constitutional right of privacy.
In Paul v. Davis, 424 U.S. 693 (1976), the Supreme Court held that the constitutional right to privacy does not prevent disclosure of “a record of an official act such as an arrest.” Id. at 713. The holding does not extend to information off the public record. Fadjo v. Coon, 633 F.2d 1172 (5th Cir. 1981). In Whalen v. Roe, 429 U.S. 589, 598-600 (1977), the Court recognized a right to nondisclosure of personal matters: “Appellees contend that the statute invades a constitutionally protected ‘zone of privacy.’ The cases sometimes characterized as protecting ‘privacy’ have in fact involved at least two different kinds of interests. One is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions.” (Emphasis supplied.) In a footnote to the above quote the Court cited with approval an article by Professor Philip Kurland which identifies one facet of constitutional privacy as “the right of an individual not to have his private affairs made public by the government.” The Court further expressed sensitivity to the need for nondisclosure privacy protection:
We are not unaware of the threat to privacy implicit in the accumulation of vast amounts of personal information in computerized data banks or other massive government files. The collection of taxes, the distribution of welfare and social security benefits, the supervision of public health, the direction of our Armed Forces, and the enforcement of the criminal laws all require the orderly preservation of great quantities of information, much of which is personal in character and potentially embarrassing or harmful if disclosed.
Id. at 605 (emphasis supplied).
Since then, the majority of the federal courts have interpreted Whalen v. Roe, id., as recognizing a constitutional right to nondisclosure of personal matters. Comment, A Constitutional Right to Avoid Disclosure of Personal Matter: Perfecting Privacy Analysis in J.P. vs. DeSanti, 653 F.2d 1080 (6th Cir. 1981), 71 Geo. L.J. 219 (1981).
In Nixon v. Administrator of Gen. Serv., 433 U.S. 425, 455 (1977), the Court expressly discussed the topic under the heading “Privacy,” and said even the President of the United States was entitled to at least a limited right of privacy:
One element of privacy has been characterized as “the individual interest in avoiding disclosure of personal matters. . . .” Whalen v. Roe, 429 U.S. 589, 599 (1977). We may agree with appellant that, at least when Government intervention is at stake, public officials, including the President, are not wholly without constitutionally protected privacy rights in matters of personal life unrelated to any acts done by them in their public capacity.
Id. at 457.
In Paul v. Davis, 424 U.S. 693, 713 (1976), the Court expressly stated that fundamental privacy interests include family relationships. In addition, the right to nondisclosure by the government is “independent of the question of ownership of the materials. . . '' Nixon v. Administrator of Gen. Serv., 433 U.S. at 458. In summary, appellant McCambridge has a right to avoid disclosure by the government of some personal matters.
The obvious next question is, do the items at issue in the instant case involve personal matters? In that part of Whalen v. Roe, quoted previously, the Court indicated that a personal matter was a matter “personal in character and potentially embarrassing or harmful if disclosed.” Falby, in his Georgetown Law Journal comment, writes that a “personal matter” ought to be information: (1) that the individual wants to and has kept private or confidential, (2) that, except for the challenged government action, can be kept private or confidential, and (3) that to a reasonable person would be harmful or embarrassing if disclosed. 71 Geo. L.J. at 240. Falby’s test for determining “personal matters” is a fair standard. The first part of the test encompasses information the individual wants to keep and has kept private. One should not expect to keep private information he has indiscriminately exposed in public. The items in the case at bar satisfy this part of the test as appellant McCambridge has not disclosed anything, and, in fact, has filed this lawsuit to prevent disclosure.
The second part of the test excludes matter which is already on the public record. The items at issue here were not already a part of the public record.
The third part of the test involves an objective test, whether the matter would be highly offensive to a reasonable person. This third part of the test is satisfied with respect to: (1) the two letters from Markle to his attorney; (2) the diary containing' Markle’s notes; (3) the letter from Markle to his mother; and (4) the photographs. The reasons therefore will be apparent in the discussion of balancing of interests below. Accordingly, we hold that those items are personal matters. The third part of the test, however, is not met with respect to the six pages of miscellaneous notes written by Markle. We can summarily say that appellant has no privacy interests in them as they cause her no harm or embarrassment.
Having determined the items that involve personal matters, the final question is whether the governmental interest in disclosure under the Freedom of Information Act outweighs the appellant’s privacy interest in the nondisclosure of the personal matters. Nixon v. Administrator of Gen. Serv., 433 U.S. 425, 458 (1977).
The strength of appellant McCambridge’s individual privacy interest in nondisclosure varies among the items. The police crime scene photographs and pathologist photographs are horrible and sickening, as are all such multiple murder photographs. Appellant will naturally be sensitive to the pictures, but balanced against the appellant’s interest in preventing dissemination of the photographs are the government’s strong interests in depicting how the multiple murders occurred, why the police consider the case closed as a triple murder-suicide matter, and why no further action should be taken. This is a highly valued governmental interest. Accordingly, we hold that the photographs should be released under the Freedom of Information Act.
Similarly, appellant will be sensitive to the matters revealed in her son’s diary because the diary reflects Markle’s serious financial troubles, possible criminal charges against him, and his thoughts of suicide. However, these are probative and relevant to the nature and course of the crime. Again, this is a highly valued governmental interest, and it outweighs McCambridge’s interest in nondisclosure.
In the briefcase, Markle left two letters to his lawyer, appellant Lawrence. Again, McCambridge’s sensitivity to some of the information contained in these letters is understandable, but the State’s interest in disclosure is very strong. The first paragraph of the first letter is a “Review of Conversation” of the telephone call to Lawrence at four o’clock on the morning of November 16. It states, “I murdered my wife, and 2 children and committed suicide.” Further, the letters direct Lawrence about how to close Markle’s personal and business affairs. The information confirms the conclusions reached by the police. The public has a strong interest in the announced solutions to crimes.
The last item in the briefcase is the letter from Markle to appellant McCambridge. The letter is from an angry son to his mother. For the most part it deals with their lives and relationships and is most sensitive. While public figures cannot expect the same degree of privacy as private citizens, they can reasonably expect privacy in personal letters to or from their children. Even the President of the United States has a privacy interest. Accordingly, McCambridge’s interest in nondisclosure of this letter is very high.
However, the letter also discloses Markle had traded McCambridge’s stock market account on a discretionary basis and apparently did the same for Stephens, Inc., an investment banking company. In the letter Markle admits, “I added funds to your account; I added losses to the Stephens’ account.” The letter does not disclose the exact amount Markle shorted Stephens, but the figures given indicate it was well over a million dollars. It reveals that he had been caught “so now I and my whole family are dead — so you can have the money. . . .” The information bears on the suicide-murders and is relevant in determining a solution to the homicides. The public has a very strong interest in announced solutions to crime, and, here, the public’s interest outweighs McCambridge’s privacy interest.
Aside from her five constitutional arguments, appellant McCambridge asks us to construe the act under state law in such a way that police records are exempt from disclosure. We summarily reject the request because the appellant does not present a convincing argument nor authority, and the merits of the argument are not readily apparent. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).
IV. LITTLE ROCK POLICE DEPARTMENTS POINTS OF APPEAL
The Arkansas Freedom of Information Act contains a “law enforcement” exemption. Ark. Code Ann. § 25-19-105(b)(6) provides that “undisclosed investigations by law enforcement agencies of suspected criminal activity” are not subject to public inspection. See J. Watkins, The Arkansas Freedom of Information Act 67 (1988) for discussion.
The police file in this case included statements from confidential informants. The department does not want to release those statements and argues that such disclosure will detract from effective law enforcement to such a degree that it will operate in derogation, and not in support, of the public interest. Included among the reasons for providing this exemption by interpretation are the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative so that police officers might be completely candid in recording their observations, hypotheses, and interim conclusions. The argument could be well addressed to the General Assembly. We can only interpret the exemption as it is written.
The only purpose of the exemption, as written, is to prevent interference with ongoing investigations. When a case is closed by administrative action, as this one was, the reason for the exemption no longer exists, and the trial court correctly ordered the statements released. Accordingly, we affirm the ruling of the trial court that the police reports are to be released.
Hickman, Hays, and Newbern, JJ., concur. Purtle and Glaze, JJ., concur in part and dissent in part.