Records and Footage of Huntsville Police Officer D’Marius Howard's DUI Arrest on May 27, 2023, by Opelika Police Department
| Tracking # |
23-84 |
| Submitted | June 1, 2023 |
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Communications
From: Jordan Lassiter
To Whom It May Concern:
Pursuant to the Alabama Open Records Law, I hereby request the following records:
MuckRock News
DEPT MR 146407
263 Huntington Ave
Boston, MA 02115
Date: May 31, 2023
Opelika Police Department
501 S 10th St
Opelika, AL 36801
Attn: FOIA Officer
Subject: Freedom of Information Act (FOIA) Request – Arrest and Associated Records of D’Marius Howard on May 27, 2023
Dear FOIA Officer,
Under the provisions of the Freedom of Information Act, 5 U.S.C. § 552, I hereby request access to and copies of all records held by the Opelika Police Department pertaining to the arrest of Huntsville Police Department Officer D’Marius Howard for DUI on May 27, 2023, around 2:20 AM.
For the purpose of this request, the records I seek include, but are not limited to:
- Any written reports, arrest records, citations, or charging documents related to the incident.
- Any dash camera and body-worn camera footage of the incident.
- Any radio transmissions, call logs, or dispatch records related to the incident.
- Any witness statements or interview transcripts associated with the incident.
- Any photos or other evidence collected as part of the investigation.
This request is made in part due to public interest in this matter. The arrest has been widely reported, including an article by WAFF 48 on May 31, 2023 (URL: https://www.waff.com/2023/05/31/huntsville-police-officer-arrested-dui-over-holiday-weekend/?outputType=amp).
While I understand that a 2018 Attorney General's opinion in Alabama suggests that out-of-state residents do not have the same access to public records as in-state residents, I assert that as a journalist working on a matter of clear public interest, this request should be considered. Further, federal case law including Lee v. Minner has upheld the principle that there should be no geographic discrimination in the application of public records law.
Should any portion of the requested records be deemed exempt from disclosure, I request the release of any reasonably segregable non-exempt portions in accordance with 5 U.S.C. § 552(b). If an entire document is exempt, I request a justification, citing specific FOIA exemptions, and provision of an exemption log as per Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973).
Please note your obligation under the law not to destroy any records potentially responsive to this request. Any withholding, redaction, or destruction of responsive records without proper justification constitutes a violation of the FOIA and is subject to litigation, as confirmed in Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 150 (1980).
Enclosed is a letter requesting a fee waiver for the processing of this request. As an independent investigative journalist associated with TransparencyReport.pw, I believe that the information I seek is in the public interest and its disclosure contributes significantly to public understanding of the operations or activities of the government.
If the enclosed waiver is not accepted and there are any potential charges in excess of $200 associated with fulfilling my request, please inform me in advance.
As stipulated by the FOIA, I look forward to your response within twenty business days (5 U.S.C. § 552(a)(6)(A)(i)).
Thank you for your prompt attention to this matter.
Sincerely,
Jordan Lassiter
Independent Investigative Journalist
TransparencyReport.pw
Email: Jordan@Lassiter.eu
Phone: 1-845-748-0329
Enclosure: Fee Waiver
The requested documents will be made available to the general public, and this request is not being made for commercial purposes.
In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.
Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 10 business days.
Sincerely,
André Natta, a citizen of Alabama, in coordination with Jordan Lassiter.
From: Muckrock Staff
To Whom It May Concern:
I wanted to follow up on the following Alabama Open Records Law request, copied below, and originally submitted on June 2, 2023. Please let me know when I can expect to receive a response.
Thanks for your help, and let me know if further clarification is needed.
From: Muckrock Staff
To Whom It May Concern:
I wanted to follow up on the following Alabama Open Records Law request, copied below, and originally submitted on June 2, 2023. Please let me know when I can expect to receive a response.
Thanks for your help, and let me know if further clarification is needed.
From: Muckrock Staff
To Whom It May Concern:
I wanted to follow up on the following Alabama Open Records Law request, copied below, and originally submitted on June 2, 2023. Please let me know when I can expect to receive a response.
Thanks for your help, and let me know if further clarification is needed.
From: Muckrock Staff
To Whom It May Concern:
I wanted to follow up on the following Alabama Open Records Law request, copied below, and originally submitted on June 2, 2023. Please let me know when I can expect to receive a response.
Thanks for your help, and let me know if further clarification is needed.
From: Muckrock Staff
To Whom It May Concern:
I wanted to follow up on the following Alabama Open Records Law request, copied below, and originally submitted on June 2, 2023. Please let me know when I can expect to receive a response.
Thanks for your help, and let me know if further clarification is needed.
From: Muckrock Staff
To Whom It May Concern:
I wanted to follow up on the following Alabama Open Records Law request, copied below, and originally submitted on June 2, 2023. Please let me know when I can expect to receive a response.
Thanks for your help, and let me know if further clarification is needed.
From: Muckrock Staff
To Whom It May Concern:
I wanted to follow up on the following Alabama Open Records Law request, copied below, and originally submitted on June 2, 2023. Please let me know when I can expect to receive a response.
Thanks for your help, and let me know if further clarification is needed.
From: Muckrock Staff
To Whom It May Concern:
I wanted to follow up on the following Alabama Open Records Law request, copied below, and originally submitted on June 2, 2023. Please let me know when I can expect to receive a response.
Thanks for your help, and let me know if further clarification is needed.
From: Muckrock Staff
To Whom It May Concern:
I wanted to follow up on the following Alabama Open Records Law request, copied below, and originally submitted on June 2, 2023. Please let me know when I can expect to receive a response.
Thanks for your help, and let me know if further clarification is needed.
From: Muckrock Staff
To Whom It May Concern:
I wanted to follow up on the following Alabama Open Records Law request, copied below, and originally submitted on June 2, 2023. Please let me know when I can expect to receive a response.
Thanks for your help, and let me know if further clarification is needed.
From: Muckrock Staff
To Whom It May Concern:
I wanted to follow up on the following Alabama Open Records Law request, copied below, and originally submitted on June 2, 2023. Please let me know when I can expect to receive a response.
Thanks for your help, and let me know if further clarification is needed.
From:
We keep receiving faxes for your request. I responded back on 11/8/2023 for the same requests. Please read the below email to help you out on your request.
"From: Grace, Elliott <egrace@opelika-al.gov>
Sent: Wednesday, November 08, 2023 12:07 PM
To: requests@muckrock.com
Cc: Miller, Kenneth <KMiller@opelika-al.gov>
Subject: Public Records Request
To make your records request please got the below listed web link.
https://www.opelika-al.gov/9/How-Do-I
Your request for access to public records is denied because your request indicates that you reside out-of-state. §36-12-40, Code of Alabama, provides citizens of Alabama the right to view public records with some exceptions. The Alabama Public Records Act is available only to Alabama citizens and grants no right of inspection to non-Alabamians. See McBurney v. Young, 133 S. Ct. 1709 (2013) and opinion to Honorable Howard J. Verner, Coffee County Constable, A.G. No 2018-030. Please provide documentation as to your Alabama residency. This may be accomplished by providing a copy of your current driver's license or other documentation showing your Alabama residence.
Lt. Elliott D. Grace
Administrative Division Supervisor
Opelika Police Department
501 South 10th Street
Opelika, AL 36801
334-705-5227
334-749-4831 (FAX)
egrace@opelika-al.gov
This transmission may contain confidential or privileged information, which is intended only for use by the law enforcement entity or individual to whom the transmission is addressed. If you are not the intended recipient, you are hereby notified that any disclosure, dissemination, copying or distribution of this transmission is strictly prohibited. If you received this transmission in error, please notify the sender immediately. Further distribution of this document is restricted. THIS DOCUMENT, OR ANY SEGMENT THEREOF, MAY NOT BE RELEASED TO ANY MEDIA SOURCES OR THE GENERAL PUBLIC."
From: Opelika Police Department
City of Opelika, AL
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Your record request #23-84 has been submitted successfully.
Your request will be answered within a reasonable amount of time/business days.
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From: Opelika Police Department
City of Opelika, AL
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Record request #23-84 has been closed. The closure reason supplied was:
Your request for access to public records is denied because your request indicates that you reside out-of-state. §36-12-40, Code of Alabama, provides citizens of Alabama the right to view public records with some exceptions. The Alabama Public Records Act is available only to Alabama citizens and grants no right of inspection to non-Alabamians. See McBurney v. Young, 133 S. Ct. 1709 (2013) and opinion to Honorable Howard J. Verner, Coffee County Constable, A.G. No 2018-030. Please provide documentation as to your Alabama residency. This may be accomplished by providing a copy of your current driver’s license and/or other documentation showing your Alabama residence.
The City respectfully declines to provide you the requested records because the requested materials (except the first page of an incident report and traffic accident reports) are considered law enforcement investigative reports, notes and statements and are privileged communications protected from disclosure. Alabama Code, §12-21-3.1 creates a statutory exemption for law enforcement investigative materials to the Alabama Open Records Act. In addition, the materials requested contain information regarding law enforcement methods and techniques, as well as officer identities, and the disclosure of such information would be detrimental to the best interests of the public. Stone v. Consolidated Publishing Company, 404 So. 2d 678, 681 (Ala. 1981). The investigative file was compiled as part of a law enforcement investigation of the Opelika Police Department and complete disclosure would be contrary to Alabama Code §12-21-3.1.
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<em>Questions about your request?</em> Reply to this email or sign in to contact staff at City of Opelika, AL.<br><em>Technical support:</em> See our <a href="https://www.nextrequest.civicplus.help/hc/en-us/categories/17720084172567-Requesters">help page</a>
From: Opelika Police Department
City of Opelika, AL
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Record request #23-84 has been published and is now available for public view.
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<em>Questions about your request?</em> Reply to this email or sign in to contact staff at City of Opelika, AL.<br><em>Technical support:</em> See our <a href="https://www.nextrequest.civicplus.help/hc/en-us/categories/17720084172567-Requesters">help page</a>
From: Jordan Lassiter
Subject: Appeal of Public Records Request Denial - Request #23-84
City of Opelika, AL
Attn: FOIA Officer
Opelika Police Department
501 S 10th St
Opelika, AL 36801
Re: Appeal of Public Records Request Denial - Request #23-84
Dear FOIA Officer,
I hope this letter finds you well. I am writing to appeal the denial of my public records request, #23-84, dated November 21, 2023. The closure reason provided stated that my request was denied because it indicates that I reside out-of-state, and the Alabama Public Records Act is available only to Alabama citizens.
I appreciate the City's dedication to following relevant statutes, and I would like to address the concerns raised in the denial. According to the denial letter, the denial is based on §36-12-40, Code of Alabama, which provides citizens of Alabama the right to view public records with some exceptions. The letter also references McBurney v. Young, 133 S. Ct. 1709 (2013) and an opinion to Honorable Howard J. Verner, Coffee County Constable, A.G. No 2018-030.
Firstly, I would like to emphasize that case law, such as McBurney v. Young, primarily addresses the issue of access to public records by out-of-state residents. However, recent federal case law, including Lee v. Minner, has upheld the principle that there should be no geographic discrimination in the application of public records law. It is crucial to consider this broader perspective, especially when the request is made by an investigative journalist working on a matter of clear public interest.
Furthermore, I assert that the denial incorrectly relies on an opinion, stating that "opinion is not law." Opinions do not have the same legal weight as statutes or case law. The denial should be based on the applicable legal framework and established precedents rather than an opinion.
As a journalist working on behalf of public interest and transparency, I kindly request a reevaluation of my request. I am willing to provide documentation as to my Alabama residency, as suggested, by providing a copy of my current driver's license or other suitable documentation.
I believe that the information requested is of significant public interest, especially considering the arrest of Huntsville Police Department Officer D'Marius Howard for DUI. This incident has garnered public attention and media coverage, as evidenced by the article from WAFF 48 on May 31, 2023.
I respectfully request that the City reconsider the denial of my public records request, taking into account the broader legal landscape and the public interest involved. If there are any concerns or additional information required, please do not hesitate to contact me.
Thank you for your attention to this matter. I look forward to your prompt response.
Sincerely,
Jordan Lassiter
From: Opelika Police Department
City of Opelika, AL
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Record request #23-84 has been reopened. You can see it anytime at the link below.
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<em>Questions about your request?</em> Reply to this email or sign in to contact staff at City of Opelika, AL.<br><em>Technical support:</em> See our <a href="https://www.nextrequest.civicplus.help/hc/en-us/categories/17720084172567-Requesters">help page</a>
From: Opelika Police Department
City of Opelika, AL
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A document has been released to you for record request #23-84:
* UTTC and Accident Report.pdf
Document links are valid for one month.
After January 18, you will need to sign in to view the document(s).
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<em>Questions about your request?</em> Reply to this email or sign in to contact staff at City of Opelika, AL.<br><em>Technical support:</em> See our <a href="https://www.nextrequest.civicplus.help/hc/en-us/categories/17720084172567-Requesters">help page</a>
From: Opelika Police Department
City of Opelika, AL
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Record request #23-84 has been closed. The closure reason supplied was:
Documents were redacted and released per process.
Please remember, the Freedom of Information Act, cited in your correspondence applies only to records created by Federal Agencies and does not cover records held by state and local government agencies. Each state has its own public access laws that should be consulted for access to state and local records. The City of Opelika has now responded to your request under Alabama law. The Uniform Traffic Ticket and Complaint and Accident Report have been redacted and released as allowable by Alabama law.
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<em>Questions about your request?</em> Reply to this email or sign in to contact staff at City of Opelika, AL.<br><em>Technical support:</em> See our <a href="https://www.nextrequest.civicplus.help/hc/en-us/categories/17720084172567-Requesters">help page</a>
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