FROM THE PULASKI COUNTY CIRCUIT COURT [NO. 60CV-13-4682]
HONORABLE MACKIE M. PIERCE, JUDGE
Rutledge, Att'y Gen., by: Jennifer L. Merritt, Ass't
Att'y Gen., for appellant.
Law Firm, P.A., by: Kevin P. Keech, for appellee.
K. WOOD, Associate Justice
1963, Ruby Lowery Stapleton was murdered. Her murder remains
unsolved, and her family has sought access to the Department
of Arkansas State Police (ASP) case file. The dispute over
whether the records met an exemption under the Arkansas
Freedom of Information Act (FOIA) culminated in a lawsuit.
Following an in camera review of the case file, the circuit
court ordered ASP to release the records. ASP has appealed.
We hold that the circuit court did not clearly err when it
found that the investigation into the Stapleton murder was
not open and ongoing. We accordingly affirm the circuit
court's order to release the records.
Lowery Stapleton was murdered on or about October 8, 1963.
Her body was discovered in White County, Arkansas. ASP's
Criminal Investigation Division, in conjunction with the
White County Sheriff's Office, conducted the
investigation. No charges have been filed against any
suspects. In 1993, Stapleton's daughter asked to see the
case file. ASP arranged for her and other family members to
view it. In November of 2013, the Keech Law Firm made a
formal written request, under FOIA, to ASP for a copy of the
case file and other materials relating to ASP's
investigation into Stapleton's murder. ASP denied the
request, maintaining that the investigation was ongoing and
that the information was exempt from FOIA.
December 2013, Keech filed a complaint against ASP in circuit
court asking the court to compel disclosure under FOIA. ASP
once again maintained the material was exempt under FOIA
because it was the subject of an open and ongoing
investigation into Stapleton's murder. Some time passed
wherein both parties filed various pleadings and affidavits.
Eventually, based on an agreement by the parties, the court
conducted an in camera inspection of the case file in January
2016. After this review, the court found "that the case
is not an 'open and ongoing' law enforcement
investigation." The court found that the claimed
exemption did not apply and accordingly ordered ASP to turn
over the file. ASP appealed, and a stay was granted pending
review a circuit court's interpretation of a statute de
novo as it is for this court to determine the meaning of a
statute. Fox v. Perroni, 358 Ark. 251, 188 S.W.3d
881 (2004) (explaining that we give no deference to the
circuit court when reviewing its conclusions of law and
interpretation of FOIA). The Arkansas Freedom of Information
Act provides that all public records are open to inspection
by Arkansas citizens. Ark. Code Ann. §
25-19-105(a)(1)(A) (Supp. 2015). This court interprets FOIA
liberally to accomplish the purpose of promoting free access
to public information. See Johninson v. Stodola, 316
Ark. 423, 425, 872 S.W.2d 374, 375 (1994). FOIA does contain
exemptions, but we interpret those exemptions narrowly.
Id. "If the intention is doubtful, openness is
the result." Ragland v. Yeargan, 288 Ark. 81,
86, 702 S.W.2d 23, 25 (1986).
claims its case file is free from public disclosure under the
exemption for materials related to "undisclosed
investigations by law enforcement agencies of suspected
criminal activity." Ark. Code Ann. §
25-19-105(b)(6). For almost twenty-eight years, this court
has held that the purpose of this statutory exemption is to
protect "ongoing investigations." McCambridge
v. City of Little Rock, 298 Ark. 219, 233, 766 S.W.2d
909, 916 (1989); Martin v. Musteen, 303 Ark. 656,
659, 799 S.W.2d 540, 542 (1990). In Martin, we
further explained that "if a law enforcement
investigation remains open and ongoing it is one meant to be
protected as 'undisclosed' under the
act." Id. at 660, 799 S.W.2d at 542.
an investigation is open and ongoing is question of fact for
the circuit court to decide. Martin, 303 Ark. at
660, 799 S.W.2d at 542. Indeed, we have held that the circuit
court should conduct an in camera review of the files before
determining whether the exemption applies.
Johninson, 316 Ark. at 427, 872 S.W.2d at 376. We
review findings of fact under a clearly erroneous standard of
review. Ligon v. Stewart, 369 Ark. 380, 255 S.W.3d
435 (2007). A finding is clearly erroneous when the appellate
court is left with a definite and firm conviction that a
mistake has been committed. See Covenant Presbytery v.
First Baptist Church, 2016 Ark. 138, 489 S.W.3d 153.
Applying these principles to the present case, we hold that
the circuit court correctly interpreted the exemption from
section 25-19-105(b)(6) as requiring an investigation to be
"open and ongoing" to qualify for nondisclosure
under FOIA. Whether an investigation is open and ongoing is
by necessity a question of fact to be determined on a
case-by-case basis. The circuit court's finding of fact
on this point was not clearly erroneous.
was murdered in 1963. The record on review reveals sparse
activity by ASP from 1965 until 2014. In challenging the
circuit court's ruling, ASP directs us to various
documents in the case file that, according to it, show an
active and ongoing investigation. Yet every action that ASP
highlights as evidence of an "ongoing"
investigation took place after Keech filed the
lawsuit in this case. Certainly an investigation could grow
stagnant over a period of years and new information could
reignite it. However, the circuit court reviewed the entire
case file from 1963 through and including the renewed efforts
by ASP in 2014 and concluded that these efforts were not
sufficient to make this investigation "open and
ongoing." We hold that this finding was not clearly
this case falls squarely within the purpose of FOIA, which,
according to the statute, is to provide for "electors .
. . [to] be advised of the performance of public officials
and the decisions that are reached in public activity . . .
making it possible for them . . . to learn and to report
fully the activities of their public officials." Ark.
Code Ann. § 25-19-102 (Repl. 2014). While ASP complains
that disclosure could detract from its ability to bring the
person responsible for Stapleton's death to justice, the
leading treatise on FOIA has noted that this exemption needs
Police and prosecutors should not be permitted to apply this
exemption as a matter of course until conviction or
acquittal, or indefinitely until a charge is brought, if
there is no genuine interest in enduring secrecy. To do so
would excessively insulate the government against legitimate
probes by the public and media into the performance of
law-enforcement functions, even apart from the disadvantage
to criminal defendants.
See John J. Watkins, Richard Peltz-Steele, and
Robert Steinbuch, The Arkansas Freedom ofInformation Act, 148 (6th ed. 2017). This is a
54-year-old murder case. No charges have been brought or
appear to be imminent. The victim's family and the public
are entitled to know how the officials in ...