Tuesday, April 05, 2005

FOIA & Criminal Files

RE: [DearMYRTLE] How do I locate records of a murder victim?
www.dearmyrtle.com/05/0327.htm

From: Rhonda
DearMYRTLE,
Something that should be mentioned pertaining to criminal cases and it's paperwork against a perpetrator should be mentioned. Not just anyone, other than immediate family are actually allowed access to criminal files. One can be given that information if one has given some proof that they are related and why they desire that information. Writing a formal letter is in order which unlocks some doors that a mere phone call to the District Attorney or public defender of the county won't, in which this event took place. This letter should be written as to who you are, and why, the reason you want this information. This is required if one has even an hope of gaining access to any files once you have narrowed down the search to a specific locality.

One wants to give the 'gate keepers' of this private/not public information a good feeling about the individual who wants this information. The more one is able to give the 'gate keeper' about the individual who wants this information, the better the attorney who has these files, will be inclined to share what information he/she has in their files, and in case, if any immediate family is still living, their privacy won't be disturbed. The more you can share about ones' self and reasons you want this information about a criminal/felon and the event that took place, the better the attorney will feel about who he/she is giving this information. The more information one gives to the gatekeeper, the more he/she will have a reason to give and to share more with you, since you are not an immediate family member.

The Freedom of Information Act doesn't kick in until three quarters of a century has passed (75 yrs), so what you may be asking for isn't public record yet and that's why a written letter requesting what you want and some form of identification, the more you give about yourself the better, is necessary if you even hope to be admitted into the attorney's authority space and get him/her to consider you a creditable individual to which he/she can impart this information you want for genealogy.

DearRHONDA,
Thank-you for taking the time to respond at such length. I do believe that documents in an attorney's files are protected by attorney/client privilege, and do not fall under the FOIA (Freedom of Information Act.) It would be unconscionable for an attorney to allow access to a file, no matter how convincing the argument.

Stanford University's Office of the General Counsel describes this online at www.stanford.edu/dept/legal/about/attorney_client.html "The Attorney/Client Privilege is a law that protects communications between attorneys and their clients and keeps them confidential. This privilege encourages openness and honesty between attorneys and their clients because attorneys cannot reveal (and indeed cannot be forced to reveal) attorney/client communications. This privilege becomes especially important in the litigation context because privileged communications, whether written or oral, are not disclosed to the opposing party."

The American Bar Association admits www.abanet.org/buslaw/attorneyclient "The attorney-client privilege is not, however, absolute. It has historically been balanced with competing objectives. Striking the right balance, recognizing the importance of the privilege, continues to be a challenge."

I agree with your suggestion that researchers wait for the 75 year "right to privacy" mark here in the US.

In the original column, my advice was to search for records which happen to be in the public domain:

  • death certificate
  • coroner's report
  • criminal case against the perpetrator
  • newspaper write-ups following the death and during the trial

Perhaps I should have stated "criminal COURT case FILE against the perpetrator."

Those criminal court case files are usually public records, and are located at the courthouse in question. Occasionally we run across a file sealed by court order. It may or may not have to do with a minor child's infringement of the law. Ol' Myrt isn't an attorney and cannot speak beyond her experience with criminal court files.

Happy family tree climbing!
Myrt :)
DearMYRTLE,
6023 26th Street West PMB 352
Bradenton, FL 34207
http://www.DearMYRTLE.com

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