HB 1176: CRIMINAL JUSTICE REFORM AND RESTRICTION ON ACCESS TO CRIMINAL CASE RECORDS
This bill is a major rewrite of many provisions of the Georgia Criminal Code. It is designed to make prudent changes in the severity of sentences, and to provide alternative means of handling certain criminal offenders. All of that is well and good.
The bill also makes provisions to allow an individual to have erroneous criminal records corrected both at the local level and with the Georgia Crime Information Center (Center). Those are very worthwhile provisions as well.
The concern for the press and the public stems from provisions in the bill that will severely restrict access to public documents.
1. At Lines 1366-1553, public access to documents can be severely limited. The mechanism for doing so is that a list of situations is included in the bill where crime history information held by the Center is restricted, and then the Center gives notice to local criminal law authorities who must then restrict the information also. Examples of what can be restricted are the following:
• Arrest records where the case is not prosecuted (Line 1370). This occurs after two years if the case is a misdemeanor (Line 1382), and after four or seven years depending on the severity for a felony (Lines 1384, 1387).
• A case was dismissed by the prosecuting attorney.
• A grand jury returned two no bills on the charge.
• Charges were dismissed after an indictment or accusation (Line 1395).
• A narcotic drug offense sentenced under the first offender statute and probation is successfully completed (Line 1398).
• The offender was sentenced under and completed a drug court program and has not been arrested for five years (Line 1401).
• A person was acquitted by a jury and the prosecutor did not petition the court within ten days of the verdict that there is a public interest in having the criminal history information remain public (Line 1405).
2. Provisions are made that criminal history information shall not be restricted if charges were dismissed and there was a plea agreement to another crime in the same transaction; if the prosecuting attorney was barred from introducing material evidence; there was a pattern of criminal activity that was prosecuted in another court; the arrested individual had immunity; not all charges resulted in acquittal; or it was determined there was jury tampering or judicial misconduct (Lines 1417-1431).
3. Additional provisions are provided where persons who have been arrested may petition the Superior Court in the county of an arrest to have access to records restricted (Lines 1432-1482). However, restrictions shall not be allowed by petition to the Superior Court for individuals convicted of a series of serious crimes (Lines 1483-1500).
4. When the Center restricts criminal history information, it is required to notify the arresting law enforcement agency which shall in turn restrict that criminal history information about an individual (Lines 1503-1509). Also an individual may petition jails and detention centers to have the records similarly restricted after they have been restricted at the Center (Lines 1510-1516). Likewise, an individual who has criminal history information restricted at the Center may petition the court to have the same information restricted in the offices of the clerk of court where the offense occurred.
5. Furthermore, the law provides that access to arrest records, including photographs, for arrests prior to July 1, 2013, can be restricted.
Analysis: Records of what takes place in public law enforcement and public courts should never be restricted. While an individual is entitled to explain how or why he or she was exonerated, or completed probation, the fact that arrests were made and cases were processed in the criminal justice system are historical facts. The best remedy for information that it outdated or ambiguous is more information - not secrecy. These portions of the legislation attempt to make it as if certain events never occurred.
Furthermore, the restricting of access to arrest records is tantamount to repeal of a long-standing provision of the Open Records Act, O.C.G.A. § 50-18-72(a)(4), that police arrest records and incident reports shall always be open for public inspection. No law should be passed that allows arrest activities to take place in secret. Secret arrests would be an invitation for uncontrolled mischief or worse.
