Meinken v. Burgess

426 S.E.2d 876, 262 Ga. 863, 93 Fulton County D. Rep. 1165, 1993 Ga. LEXIS 314

• Court: Supreme Court of Georgia
• Decided: March 15, 1993
• Docket: S92G1252
• Status: Published

Opinions

Sears-Collins, Justice.

We granted certiorari in this case to determine whether the Court of Appeals correctly held that a person with an incomplete arrest record can never have his arrest record expunged under OCGA § 35-3-37 (c) but instead can only have his arrest record supplemented. Burgess v. Meinken, 204 Ga. App. 600, 601-602 (420 SE2d 329) (1992). For the reasons that follow, we reverse.

In this case, Meinken was arrested for the molestation of his three-year-old daughter. The basis for the arrest was a police videotape interview with Meinken’s daughter. Meinken subsequently filed a demand for speedy trial, which the state was unable to comply with because the child would not talk about the alleged molestation. Meinken was thus acquitted by operation of law. OCGA § 17-7-170 (b). Meinken then requested the DeKalb County Police Department and the Chief of Police of DeKalb County to expunge his arrest record. After they declined to do so, Meinken appealed to superior court. OCGA § 35-3-37 (c). The trial court found that Meinken’s arrest record was “inaccurate and misleading in that it does not reflect the disposition with this case,” and therefore ordered that Meinken’s arrest record be expunged. OCGA § 35-3-37 (c). Moreover, at a hearing on a motion to supplement the record on appeal, the trial court stated that in issuing its order it gave special consideration to the videotape. The court added that it had “grave concerns” about the videotape because it was “leading . . . and very suggestive.”

The DeKalb County Police Department appealed to the Court of Appeals, which reversed. The Court held that Meinken’s arrest record was not inaccurate because the record accurately reflected his arrest. Instead, the Court concluded that Meinken’s record was merely incomplete, in that it did not reflect that he was subsequently acquitted by operation of law. The Court reversed on the ground that the remedy of expungement is only available when an arrest record is inaccurate. Burgess, supra, 204 Ga. App. at 601-602. We then granted certiorari to determine whether that holding is correct. We conclude that it is not.

1. OCGA § 35-3-37 (c) provides that

[i]f an individual believes his criminal records to be inaccurate or incomplete, he may request the original agency having custody or control of the detail records to purge, modify, or supplement them and to notify the [Georgia Crime Information Center] of such changes. Should the agency decline to act or should the individual believe the agency’s decision to be unsatisfactory, the individual or his attorney may, within 30 days of such decision, enter an appeal to the superior court ... to acquire an order by the court that the subject information be expunged, modified, or supplemented by the agency of record. The court shall conduct a de novo hearing and may order such relief as it finds to be required by law. . . . Should the record in question be found to be inaccurate, incomplete, or misleading, the court shall order it to be appropriately expunged, modified, or supplemented by an explanatory notation.

(Emphasis supplied.)

We conclude that, under the plain language of the statute, if a criminal record is inaccurate or incomplete or misleading, a superior court has three available remedies — expungement, modification, or supplementation — so long as the court finds the remedy to be “required by law” and “appropriate.”¹ See Mansfield v. Pannell, 261 Ga. 243, 244 (404 SE2d 104) (1991) (plain language of statute controls unless it produces absurdity). Similarly, the Attorney General has concluded that expungement is an available remedy when a superior court finds that a record is “inaccurate, incomplete, or misleading.” 1982 Op. Atty. Gen. 82-8. No language in the statute limits the remedy of expungement to criminal records that are inaccurate, and the Court of Appeals erred by so holding. The only limitation on the superior court’s ability to choose a remedy is that the remedy must be “appropriate” and “required by law.”

2. Although the plain language of the statute grants a superior court the authority to consider the remedy of expungement for inaccurate, incomplete, or misleading records, the court’s authority to choose that remedy is limited to cases in which it is “appropriate” and “required by law.” We must, then, determine what constraints these words place on a superior court’s ability to choose the remedy of expungement.

In interpreting this language, we must try to effectuate the intent of the legislature as discerned from the act as a whole. City of Roswell v. City of Atlanta, 261 Ga. 657 (410 SE2d 28) (1991); Ford Motor Co. v. Carter, 239 Ga. 657 (238 SE2d 361) (1977). In doing so, we conclude that expungement should be reserved for exceptional cases. Through the creation of the Georgia Crime Information Center (the “GCIC”) for the purpose of maintaining and disseminating information on criminal records, OCGA §§ 35-3-30 to 35-3-40, the General Assembly has expressed a public policy favoring the maintenance and dissemination of such records. If a superior court could expunge a record in every case in which a record was inaccurate, incomplete, or misleading, many arrest records that the state has a vital interest in maintaining would be subject to expungement, thereby risking the defeat of the very purpose for which the General Assembly created the GCIC. Moreover, because expungement is the most drastic of the three available remedies, logically it should be the appropriate remedy only in the exceptional cases in which the remedies of modification or supplementation are inadequate to protect the interests of the individual. Finally, limiting expungement to such exceptional cases is consistent with the law regarding expungement in other jurisdictions. See Police Commr. of Boston v. Municipal Ct., 374 NE2d 272, 280-286 (1978); City of Pepper Pike v. Doe, 421 NE2d 1303, 1306 (Ohio 1981); United States v. Smith, 940 F2d 395 (9th Cir. 1991); 97 ALR Fed 652 (1990), Expunction of Federal Arrest Records in Absence of Conviction.

The question then is what is an exceptional case warranting ex-pungement. We conclude, as have courts in other jurisdictions, that in making this determination a superior court should balance the competing interests involved, namely those of the state in maintaining extensive arrest records to aid in effective law enforcement and those of the individual in being free from the harm that may be caused from the existence of those records. Only when this balancing test weighs in the individual’s favor may a court expunge an arrest record. See Police Commr., supra, 374 NE2d at 280-286; City of Pepper Pike, supra, 421 NE2d at 1306; Smith, supra, 940 F2d; 97 ALR Fed 652 (1990). Moreover, because potential harm to individuals is the natural consequence of the maintenance and dissemination of criminal records by the GCIC, the balancing test should not be tipped in the defendant’s favor solely on the basis of the potential harm that could accrue to a defendant in any given case. Instead, special factors must exist that either diminish the state’s interest in maintaining the records or heighten the impact of the existence of those records on the defendant and thus warrant expungement. See Police Commr., supra, 374 NE2d at 280-285; Smith, supra, 940 F2d at 396; City of Pepper Pike, supra, 421 NE2d at 1306. For instance, if an arrest results from any illegality or misconduct on the part of the police, Police Commr., supra, 374 NE2d at 281-282, the arrest record may not be indicative of the individual’s criminal propensity and the maintenance of that record may therefore be of little value to law enforcement, id. at 282. Accord City of Pepper Pike, 421 NE2d at 1306. Furthermore, as the

apparent utility of the records decreases, there is a concomitant increase in the [defendant’s] interest in being insulated from the possible adverse consequences of the existence and dissemination of the records.

Police Commr., supra, 374 NE2d at 284. This test is essentially the type of balancing of equities that a superior court performs on a daily basis, and a superior court’s decision on expungement will not be disturbed on appeal unless there has been an abuse of discretion, United States v. Friesen, 853 F2d 816, 818 (10th Cir. 1988).

3. We will now examine whether expungement was appropriate in this case. Meinken contends, first, that expungement was an appropriate remedy solely because his record was incomplete and misleading due to the fact that it did not reflect the final disposition of his case. We disagree. The fact that the arrest record did not reflect that Meinken was acquitted by operation of law does not constitute an exceptional circumstance warranting the remedy of expungement instead of modification or supplementation.

Meinken also contends that his arrest record should be expunged because the police videotape amounts to a violation of justice, involving the police literally telling his three-year-old daughter that her father molested her. Meinken further notes that, at the hearing on the motion to supplement the record on appeal, the trial court stated that it had considered the suggestive and leading nature of the videotape in issuing the order of expungement. This concern about the videotape raises the type of special circumstance that might warrant ex-pungement, in that it places in doubt whether there was any foundation whatsoever for Meinken’s arrest and thereby may tend to diminish the interest of the state in maintaining the arrest record and to heighten Meinken’s interest in having the record expunged.

However, because the trial court’s order specified that it ordered expungement solely on the ground that Meinken’s record did not reflect the final disposition of his case, and because the record does not show that the trial court adequately considered the allegations concerning the videotape in the context of the balancing test we set forth today, we conclude that this case must be remanded to the trial court for it to apply that test to the facts of this case.

Judgment reversed. Clarke,

C. J., Benham and Fletcher, JJ., concur; Hunt, P. J., concurs in the judgment only; Hunstein, J., and Judge Frank C. Mills III dissent.

1 We interpret an “appropriate” remedy to be one “required by law,” and accordingly use the terms “appropriate” and “required by law” interchangeably in this opinion.