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Ga. bill would hide arrest information

So-called “expungement” provision would streamline the way individuals cleared of criminal charges can get their records restricted from public view

By Bill Rankin
The Atlanta Journal-Constitution

Public access to records restricted in certain cases.

A provision in sentencing reform legislation that would restrict public access to arrest records of people later cleared of charges has raised concerns among First Amendment proponents.

House Bill 1176, approved by the House last week, would reduce prison terms for nonviolent drug and property offenders so that the most costly punishment — incarceration in Georgia’s prison system — can be reserved for the most dangerous criminals. The legislation also includes a so-called “expungement” provision that would streamline the way individuals cleared of criminal charges can get their records restricted from public view.

Hollie Manheimer, executive director of the Georgia First Amendment Foundation, said Saturday the provision will “undermine the entire purpose of the Open Records Act, particularly when a citizen is ultimately found not guilty by our criminal justice system. ... The proposed additions tilt the balance dangerously towards secrecy and away from the public’s interest in open government.”

Marissa McCall Dodson, a Georgia Justice Project lawyer who supports the provision, said many people cannot get jobs because initial charges against them that were later dismissed can still be flagged during background checks by prospective employers.

Some also must wait one to two years under current law to go through the process to get their records expunged, she said.

“We’re trying to offer a layer of protection on access to that information because it’s causing so much harm to so many individuals,” she said. “We’re trying to make the process more transparent by allowing the public and the individuals to know which dispositions will qualify for restriction and how they can go about the process.”

The Georgia Justice Project, which handles hundreds of cases a year, has had clients who could not get a job, find housing or participate in school activities with their children because past charges were still on their records, Dodson said.

This included a woman charged with theft in a case rejected by a grand jury and a woman charged with child abuse and later cleared when it was determined her child had an allergic reaction to medication, she said.

Under current law, individuals may file a request to the arresting agency to get their records expunged. The law enforcement agency sends the request to the prosecuting attorney’s office, which reviews the file and decides whether to approve it. If the request is approved, the arresting agency then destroys records of the initial charges, Dodson said.

The individual then pays a $25 fee to get the Georgia Crime Information Center to remove the record of the charges from its database.

HB 1176 no longer would require such a procedure and no longer would give prosecutors the sole discretion to approve or deny expungement applications.

The bill would allow the restriction of law enforcement arrest records and reports from public view, provided a number of conditions are met. Among them: if the case was never referred for further prosecution by the arresting agency; if the case was referred and later dismissed; if the grand jury twice refused to indict the case; or if the individual was acquitted of all charges.

Records would not be restricted if: the charges were dropped as part a plea agreement that leads to a conviction stemming from the same underlying conduct; the prosecution was barred from introducing material evidence on legal grounds; or the conduct that led to the individual’s arrest was part of a pattern of criminal activity prosecuted elsewhere.

The provision also would allow individuals to get their court files sealed by petitioning the court and notifying the prosecution of the request. The file could be sealed if a judge determines that the harm to the individual outweighs the public interest in the information remaining open to inspection.

Rep. Jay Neal, R-LaFayette, a co-sponsor of the bill, noted that current law allows for the destruction of all documents, including fingerprint cards and mug shots. HB 1176 only restricts public access to certain files under specific conditions, he said.

Also important, Neal said, is that prosecutors, law enforcement and court officials would retain access to the information, even when restricted from public view.

Tom Clyde, a lawyer for The Atlanta Journal-Constitution, expressed concern that the legislation automatically seals some criminal records, including routine police reports, when charges are dismissed or when someone is found not guilty.

“One of the things that keeps law enforcement and district attorneys’ offices honest is the sure knowledge that the public can look at their files when a case is over,” he said. “Sealing those files automatically when a case is dismissed or ends in acquittal takes away an important check on the system.”

Attorney General Sam Olens said Saturday he expects a number of facets of HB 1176, including the records restriction provision, to be changed before its final adoption.

“Our office has sought to bring all sides together to forge a consensus on the sentencing reform legislation, including the expungement provision,” Olens said.

Copyright 2012 The Atlanta Journal-Constitution