Charles Edward Lincoln III 1215 Prytania Street, #333 New Orleans, Louisiana 70130
June 22, 2017
Re: Calendar Number 31,899
Proposed Ordinance to amend City Code
“to clarify that certain records of the New Orleans Police Department are exempt from disclosure to the public if being utilized in an ongoing criminal investigation or prosecution”
To the Honorable Members of the New Orleans City Council:
I strenuously object to the proposed ordinance on the grounds both that it appears to allow a discretionary exemption from the requirements of Article 12, Section 3, of the Louisiana Constitution far broader than currently allowed under La. R.S. 44:1 et seq..
3 Page Excerpt from In Re Matter Under Investigation 15 So.3d 972 (Supreme Court of Louisiana 1 July 2009)
I submit that even the exemption allowed under current Louisiana Law is too broad, and note that it exceeds the breadth of the Federal Exemption to Disclosure under the Freedom of Information Act, Title 5 U.S.C. §552(b)(7), a copy of which I am attaching for the Council’s convenience.
Exemptions to FOIA—5 USC Section 552(b)(7) FOIA–Public information agency rules opinions orders records and proceedings
At best, the proposed ordinance is vague and imprecise and allows malicious and improper investigations to be hidden forever. At worst, we are creating an atmosphere favorable to secret prosecutions and secret systems of injustice for political gain and private aggression.
It is a sham to say that secret investigations protect the innocent. Secret investigations only permit the Police to maximize their power to engage in improper surveillance and illegally terrorize the people who can never know where they stand. In America, people SHOULD have a right to know immediately when they are suspected or accused of any crime. We don’t need to perpetuate the heritage of “secret dossiers” inherited from J. Edgar Hoover or the KGB/NKVD.
The United States of America suffers today from too much governmental secrecy, too many privileges and too much immunity for government officials. I was a teenager during the Watergate Era and its aftermath, and I learned to abhor all aspects of government secrecy, at home and abroad. When I was turning thirty, I spent the year of 1989-1990 in the Federal Republic of Germany and not only watched the Berlin wall come down but helped tear it down with my own hands. I ask the members of this City Council to remember the secret investigations of the East German STASI and whether we really need secret police investigations in the United States at all.
If criminal conduct is suspected, both the public and the people who might be accused have a right to know. Maybe the best way to prevent crime is to expose it during the planning stage, did you ever think of that? Don’t let the prosecutor who knows of a possible murder for hire allow the crime to get organized and take place before he makes it public and makes headlines with a big arrest.
Either scare or shame potential defendants who’re out “casing joints” for potential burglaries by letting them know they’re being watched or maybe LET THEM EXPLAIN that they had some innocent purpose in mind. Why should we ever have to wait until crimes are complete to expose the possibility that crimes will be committed to the public?
I submit that secret investigations are anathema to the genuine pursuit of truth, justice and the American Way of Life. Public investigations offer the potential to stop inchoate crimes from being completed, for potential “criminals” to mend their ways and walk the straight-and-narrow. Or again, if people are wrongfully accused or suspected of an inchoate or incomplete crime, the cost of correcting an inaccurate suspicion is much less devastating to the individual than trying to defend against a false and malicious prosecution. And don’t tell me we don’t have any of those in our system, because we do.
Furthermore, the proposed Ordinance is too broad and too easily misapplied to protect the guilty INSIDE the system who use surveillance for completely illegal and illegitimate purposes. I submit that the proposed ordinance is illegal, unconstitutional, and I for one plan on filing a complaint for declaratory judgment against it if it is enacted. New Orleans deserves better than this. The visitors whose tourism dollars are this cities’ lifeblood do not need to feel like they’re entering a police state where they are constantly under secret police surveillance. The residents of this city need to know exactly where they stand with their government, and if the Police legitimately think something is wrong, the potential suspects have a right to know.
It is simply reprehensible that this City Council would even consider an ordinance that would allow records to remain sealed, effectively, FOREVER, on thze grounds that a completely groundless and frivolous murder investigation was opened…. And never brought to trial…. But it might be since there’s no statute of limitations on murder… when the REAL purpose of such an investigation was to compile politically useful blackmail material on one or more targets.
Are we so naïve to think that such abuses do not happen? I certainly hope not…
The proposed ordinance’s phrase “until after such original records have been used in open court or the criminal charge or investigation has been finally disposed of” is simply TOO vague and indefinite and clearly invites abuse.
I propose and submit that there should be NO special New Orleans Ordinance for secrecy from public information disclosure requests in any police work—NONE WHATSOEVER, but if there must be secrecy, it should be no broader than that authorized by Federal FOIA, Title 5 U.S.C. §552(b)(7).