# Was the Release of the Duggar Records Under FOIA Illegal?
**URL:** https://boards.straightdope.com/t/was-the-release-of-the-duggar-records-under-foia-illegal/721638
**Category:** Factual Questions
**Created:** [June 4, 2015, 4:00pm UTC](https://boards.straightdope.com/t/was-the-release-of-the-duggar-records-under-foia-illegal/721638 "2015-06-04T16:00:00Z")
**Posts on this page:** 20
**Page:** 1
### Author:  [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)
#### Post date: [June 4, 2015, 4:00pm UTC](https://boards.straightdope.com/t/was-the-release-of-the-duggar-records-under-foia-illegal/721638/1 "2015-06-04T16:00:00Z")
That’s what [they claim](http://money.cnn.com/2015/06/04/media/duggars-megyn-kelly-scandal/index.html?iid=TL_Popular). What’s the straight dope on this?
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### Author:  [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)
#### Post date: [June 4, 2015, 4:37pm UTC](https://boards.straightdope.com/t/was-the-release-of-the-duggar-records-under-foia-illegal/721638/2 "2015-06-04T16:37:31Z")
The names of the minors were redacted, which is all Arkansas law requires.
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### Author:  [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)
#### Post date: [June 4, 2015, 4:39pm UTC](https://boards.straightdope.com/t/was-the-release-of-the-duggar-records-under-foia-illegal/721638/3 "2015-06-04T16:39:14Z")
My impression is that the basis of the claim is that he himself was a minor at the time and his name was not redacted.
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### Author:  [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)
#### Post date: [June 4, 2015, 4:50pm UTC](https://boards.straightdope.com/t/was-the-release-of-the-duggar-records-under-foia-illegal/721638/4 "2015-06-04T16:50:30Z")
His name [was](http://www.intouchweekly.com/posts/josh-duggar-chilling-molestation-confession-in-new-police-report-59752) redacted.
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### Author:  [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)
#### Post date: [June 4, 2015, 5:06pm UTC](https://boards.straightdope.com/t/was-the-release-of-the-duggar-records-under-foia-illegal/721638/5 "2015-06-04T17:06:08Z")
Depending on the FOIA request, it’s not clear to me whether redacting the name is sufficient. If In Touch asked for “all arrest records of Josh Duggar,” and the police department produced this record as responsive to that request, then obviously the redaction of his name is meaningless.
There may also be an issue if the case was sealed by order of the juvenile court.
It’s a little surprising that In Touch essentially identified one of the victims as well (there’s only one person who would have been a five-year-old Duggar girl when Josh was 15). Most of the time, the news media go to great lengths to refrain from identifying alleged victims of sexual assault, particularly children, but In Touch (and most of the media reporting the story) seem to skate very close to that line.
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### Author:  [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)
#### Post date: [June 4, 2015, 5:11pm UTC](https://boards.straightdope.com/t/was-the-release-of-the-duggar-records-under-foia-illegal/721638/6 "2015-06-04T17:11:10Z")
> [@Really\_Not\_All\_That\_Bright](#):
>
> His name [was](http://www.intouchweekly.com/posts/josh-duggar-chilling-molestation-confession-in-new-police-report-59752) redacted.
Your link is (or jumps to) to an article about Amanda Byrnes. But [this](http://www.dailymail.co.uk/news/article-3109428/New-Duggar-police-report-reveals-Josh-confessed-THREE-times-father-molested-girls-home-Jim-Bob-Michelle-faced-prison-cover-up.html) appears to be the InTouch-obtained police report.
It blanks out the guy’s name, but it names both of his parents and says he had just turned 14 in March of 2002, so there couldn’t possibly be any doubt as to who it is. Does that count?
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### Author:  [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)
#### Post date: [June 4, 2015, 5:19pm UTC](https://boards.straightdope.com/t/was-the-release-of-the-duggar-records-under-foia-illegal/721638/7 "2015-06-04T17:19:33Z")
Weird. Link works properly for me. Anyway, I would have thought his date of birth would also be redacted but apparently it’s not required.
> [@Tom\_Tildrum](#):
>
> There may also be an issue if the case was sealed by order of the juvenile court.
The case never reached the juvenile court, as the police concluded the statute of limitations had already passed on all of the offenses.
I read the Arkansas FOIA and all the exemptions I could locate that appear in other sections of the code, and I can’t find anything to support Kelly’s claim that “it specifically says juvenile records are not subject to Freedom of Information Act requests.”
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### Author:  [@Senegoid](https://boards.straightdope.com/u/Senegoid)
#### Post date: [June 4, 2015, 7:42pm UTC](https://boards.straightdope.com/t/was-the-release-of-the-duggar-records-under-foia-illegal/721638/8 "2015-06-04T19:42:07Z")
> [@Really\_Not\_All\_That\_Bright](#):
>
> The names of the minors were redacted, which is all Arkansas law requires.
This, apparently. From what I’ve seen about it, this was technically proper, BUT… The report clearly included enough details to make it obvious who the perp was, and enough to figure out who at least some of the victims were. So the claim that the release was illegal revolves around that.
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### Author:  [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)
#### Post date: [June 4, 2015, 8:50pm UTC](https://boards.straightdope.com/t/was-the-release-of-the-duggar-records-under-foia-illegal/721638/9 "2015-06-04T20:50:07Z")
I don’t see any affirmative obligation in the Arkansas FOIA law for them to redact the non-name identifying information of a juvenile crime suspect. But, that law contains and incorporates a bunch of different balancing tests for redacting private information, including redactions pursuant to the Arkansas Constitution’s privacy protections. So there’s probably a colorable claim _in virtually every case_ that the failure to redact a given piece of information was incorrect since the tests are so open-ended.
Indeed, I’m not sure redacting his name was proper. What is the authority for the proposition that his name was properly redacted? [Here’s](http://ag.arkansas.gov/opinions/docs/92-237.html) a 1992 FOIA opinion on the subject:
> [@](#):
>
> Thus, the FOIA authorizes the nondisclosure of documents through court order. And in juvenile proceedings under the Juvenile Code, the court may, in its discretion, order the records closed and confidential. In other instances, a definitive answer to your question may require the custodian’s review of the particular court order.\*\* Generally, however, it is my opinion that law enforcement investigative records wherein the defendant is a juvenile are subject to public inspection and copying under the FOIA, as long as the investigation is, as you state, closed, and no protective order has been entered.\*\*[2] As to such records which would generally be open for public inspection, in my opinion, the FOIA makes no provision for removing the names or statements of victims or witnesses from a closed investigation.
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### Author:  [@md2000](https://boards.straightdope.com/u/md2000)
#### Post date: [June 4, 2015, 8:59pm UTC](https://boards.straightdope.com/t/was-the-release-of-the-duggar-records-under-foia-illegal/721638/10 "2015-06-04T20:59:50Z")
Hmmm… In Canada, any details which would identify a juvenile are not published… leading to silly situations where the parents may be charged, and named, but the detail of the child’s relationship is never mentioned - pretty silly in context. Or the sexting harassment cases, such as a recent one, where everyone in the medium-sized town knew who was involved, but the details were not published in the media. Or a case where the defendant asked the judge to ban publication over the protests o the victim, his stepdaughter, hoping to use the media ban to protect his reputation. (Professor of university X with 14-yo stepdaughter - I’m sure it’s not had for the administration there to figure it out.)
Redacting only names when it’s pretty obvious what’s going on and who is involved is pretty stupid - even if it is letter of the law, it is violating the spirit of the law.
(There’s a reason why juvenile crimes are handled differently. A guy barely old enough to be charged himself, “playing doctor” with younger people of the opposite sex? Probably half of AMerica would be open to criminal charges that way)
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### Author:  [@Ranger\_Jeff](https://boards.straightdope.com/u/Ranger_Jeff)
#### Post date: [June 4, 2015, 9:38pm UTC](https://boards.straightdope.com/t/was-the-release-of-the-duggar-records-under-foia-illegal/721638/11 "2015-06-04T21:38:29Z")
I refuse to feel guilty about having lustful thoughts about 13 year old girls. Because I gave that up when I turned 15.
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### Author:  [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)
#### Post date: [June 4, 2015, 9:49pm UTC](https://boards.straightdope.com/t/was-the-release-of-the-duggar-records-under-foia-illegal/721638/12 "2015-06-04T21:49:16Z")
> [@Richard\_Parker](#):
>
> Indeed, I’m not sure redacting his name was proper. What is the authority for the proposition that his name was properly redacted? [Here’s](http://ag.arkansas.gov/opinions/docs/92-237.html) a 1992 FOIA opinion on the subject:
A 2013 amendment to the AR FOIA that required redaction of juvenile names from police reports. I can’t find the portions of the code that were actually changed, though, just news articles. I’m pretty hopeless at researching other states’ statutes.
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### Author:  [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)
#### Post date: [June 4, 2015, 10:42pm UTC](https://boards.straightdope.com/t/was-the-release-of-the-duggar-records-under-foia-illegal/721638/13 "2015-06-04T22:42:49Z")
> [@md2000](#):
>
> A guy barely old enough to be charged himself, “playing doctor” with younger people of the opposite sex? Probably half of AMerica would be open to criminal charges that way)
In America, “playing doctor” is always consensual and mutual, and normally involves two per-pubescent youths, usually two very young children in the very first stages of realizing sexuality. Forced non-consensual touching, fondling, and exploration is a sex crime, especially when the perpetrator is pubescent and awake and the victims are not.
Playing doctor is considered normal and non-harmful behavior. This is not playing doctor by any possible sense or stretching of the term.
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### Author:  [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)
#### Post date: [June 5, 2015, 1:04am UTC](https://boards.straightdope.com/t/was-the-release-of-the-duggar-records-under-foia-illegal/721638/14 "2015-06-05T01:04:15Z")
> [@Really\_Not\_All\_That\_Bright](#):
>
> A 2013 amendment to the AR FOIA that required redaction of juvenile names from police reports. I can’t find the portions of the code that were actually changed, though, just news articles. I’m pretty hopeless at researching other states’ statutes.
I’m looking at a version of Arkansas FOIA that claims to include all changes through 2014 and I don’t see any new exemption applying to juveniles. It also shows all bills passed relevant to FOIA in 2013, and shows three bills unrelated to juveniles. So I’m fairly confident the 2013 amendment wasn’t to FOIA as such.
Perhaps it was an amendment put somewhere in the juvenile code? There was 2009 amendment that forbids disclosure of juvenile arrest records. A.C.A. § 9-27-309. But the document in question was not an arrest record (and if it were, the whole thing would have to be prevented from being disclosed). There are no 2013 amendments to that provision of the code either.
Do you have any further details about the legislation?
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### Author:  [@Honey](https://boards.straightdope.com/u/Honey)
#### Post date: [June 5, 2015, 1:53am UTC](https://boards.straightdope.com/t/was-the-release-of-the-duggar-records-under-foia-illegal/721638/15 "2015-06-05T01:53:52Z")
> [@md2000](#):
>
> (There’s a reason why juvenile crimes are handled differently. A guy barely old enough to be charged himself, “playing doctor” with younger people of the opposite sex? Probably half of AMerica would be open to criminal charges that way)
Do you still consider it “playing doctor” when one participant is 14 years old and the other is 5?
I sure don’t. I consider that sexual abuse.
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### Author:  [@Senegoid](https://boards.straightdope.com/u/Senegoid)
#### Post date: [June 5, 2015, 3:35am UTC](https://boards.straightdope.com/t/was-the-release-of-the-duggar-records-under-foia-illegal/721638/16 "2015-06-05T03:35:17Z")
> [@Honey](#):
>
> Do you still consider it “playing doctor” when one participant is 14 years old and the other is 5?
>
> I sure don’t. I consider that sexual abuse.
He was playing pediatrician.
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### Author:  [@zweisamkeit](https://boards.straightdope.com/u/zweisamkeit)
#### Post date: [June 5, 2015, 5:11am UTC](https://boards.straightdope.com/t/was-the-release-of-the-duggar-records-under-foia-illegal/721638/17 "2015-06-05T05:11:20Z")
The reason it was easy to figure out who was in the report is because the family are reality tv stars. They have had countless interviews, many tv specials and a multiple-season tv show that was TLC’s cash cow. That’s not the fault of the FoIA.
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### Author:  [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)
#### Post date: [June 5, 2015, 1:24pm UTC](https://boards.straightdope.com/t/was-the-release-of-the-duggar-records-under-foia-illegal/721638/18 "2015-06-05T13:24:21Z")
> **[Josh Duggar Molestation Scandal: City Defends Release of Record](https://www.nbcnews.com/news/us-news/josh-duggar-scandal-city-defends-release-record-n370171?cid=sm_tw&hootPostID=65e09238161ec603658c9d822e2667d0)**
>
> The city attorney in Springdale said it acted under the law in releasing a police record, a day after the Duggar family called the release illegal.
> [@zweisamkeit](#):
>
> The reason it was easy to figure out who was in the report is because the family are reality tv stars. They have had countless interviews, many tv specials and a multiple-season tv show that was TLC’s cash cow.
This is incorrect. See post 6 and the link to the police report.
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### Author:  [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)
#### Post date: [June 5, 2015, 2:20pm UTC](https://boards.straightdope.com/t/was-the-release-of-the-duggar-records-under-foia-illegal/721638/19 "2015-06-05T14:20:46Z")
> [@Richard\_Parker](#):
>
> Do you have any further details about the legislation?
It was this act. However, on actually reading the legislation it applies only to traffic crash reports. So I think you are correct, and the names did not even need to be redacted.
I guess we’ll need to ask Megyn Kelly what portion of the AR code she was referring to.
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### Author:  [@Sam\_Lowry](https://boards.straightdope.com/u/Sam_Lowry)
#### Post date: [June 5, 2015, 7:41pm UTC](https://boards.straightdope.com/t/was-the-release-of-the-duggar-records-under-foia-illegal/721638/20 "2015-06-05T19:41:40Z")
> [@Really\_Not\_All\_That\_Bright](#):
>
> It was this act. However, on actually reading the legislation it applies only to traffic crash reports. So I think you are correct, and the names did not even need to be redacted.
>
> I guess we’ll need to ask Megyn Kelly what portion of the AR code she was referring to.
[Buzzfeed](http://www.buzzfeed.com/claudiakoerner/release-of-josh-duggar-police-report-was-legal-under-arkansa#.rhO926yj1) has an article about this, including a link to [case law](https://casetext.com/case/troutt-bros-v-emison) that my computer isn’t showing.
The funny thing is that in Arkansas juvenile court records may not be disclosed, but other records that identify juveniles not charged with crimes remain public records. So if Josh Duggar had been properly reported and charged, the records would be exempt from FOIA. I bet the Duggar’s don’t see the irony there.
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