9. Confidential informants

Rule 3.9 of the Alabama Rules of Criminal Procedure protects the identity of confidential informants when sworn testimony is taken to support the issuance of a search warrant.   Something Extra Publ’g, Inc. v. Mack, and Ala. Code § 12-21-3.1 would also presumably close investigative records related to confidential informants. 350 So. 3d 663, 663 (Ala. 2021)

Law enforcement records may be withheld from disclosure under the Public Records Act to the extent that they could reasonably be expected to disclose the identity of a confidential source. AS 40.25.120(6)(D).

“A record of a communication between a person submitting a report of criminal activity to a silent witness, crime stopper or operation game thief program . . . is not a public record.”  A.R.S. § 12-2312.

Statements of confidential informants contained in records for closed investigations are subject to the FOIA. McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989). The Arkansas Supreme Court has also indicated that, absent legislative action, the identities of confidential informants from closed investigations should not be protected. Martin v. Musteen, 303 Ark. 656, 799 S.W.2d 540 (1990). The Attorney General has opined that any information relating to a confidential informant must be disclosed if the investigation is closed. Ark. Op. Att’y Gen. No. 2006-158.

Exempt. The identity of confidential informants and any statements made by them are exempt from disclosure. Cal. Gov’t Code § 7923.605. California Evidence Code Section 1041 also protects the identity of confidential informants upon a proper showing. Cal. Evid. Code § 1041.

Pursuant to Colo. Rev. Stat. § 24-72-204(2)(d), a custodian shall deny the right of inspection of any materials received, made, or kept by a witness protection board, the department of public safety, or a prosecuting attorney that are confidential pursuant to Colo. Rev. Stat. § 24-33.5-106.5. Colo. Rev. Stat. § 24-33.5-106.5(2)(a) provides that any materials received, made, or kept by a witness protection board, the department, or a prosecuting attorney concerning a witness protection matter shall be confidential.

Confidential informants' identities and statements are subject to withholding if their disclosure may harm an ongoing investigation or cause other injury to the public interest. Colo. Rev. Stat. § 24-72-305(5). See Pretash v. City of Leadville, 715 P.2d 1272 (Colo. App. 1985).

See Conn. Gen. Stat. §1-210(b)(3) (law enforcement exemption) in Records Outline at II.A.2.c.

Agencies holding criminal records may redact prior to release information “which would disclose the names of witnesses, intelligence personnel and aids or any other information of a privileged and confidential nature.” 29 Del. C. § 10002(o)(4).

Confidential informants are likely covered by D.C. Code Ann. § 2-534(a)(3)), which exempts information that could “[d]isclose the identity of a confidential source and, in the case of a record compiled by a law-enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source.”

Information revealing the identity of confidential informants or sources is exempt from the provisions of Chapter 119. Fla. Stat. § 119.071(2)(f)) (2020); see City of St. Petersburg v. Rommie ex rel. Dillinger, 719 So. 2d (Fla. 2d. DCA 1998) (after in camera inspection of records and disclosure of informant’s identity in trial court, access to records was granted); Salcines v. Tampa Television, 454 So. 2d 639 (Fla. 2d DCA 1984) (exemption provided by section 119.07(3)(c) protects from disclosure information revealing the identity of confidential informants or sources regardless of whether the informants or sources are no longer active or any have, through other sources, been identified as such); John Doe v. Fla., 901 So. 2d 881 (Fla. 4th DCA 2005) (prohibiting state from releasing unredacted documents that might identify petitioner as source in criminal investigation).

O.C.G.A. § 50-18-72(a)(3) exempts from disclosure law enforcement records that if revealed would be reasonably likely to disclose the identity of a confidential source, confidential investigative or prosecution material which would endanger the life or physical safety of any person or persons, or the existence of a confidential surveillance or investigation.

OIP has determined that the identity of confidential informants should not be disclosed, and if such information is part of investigation records that otherwise are subject to disclosure, information that reveals the identity of confidential informants should be segregated from the records disclosed. Disclosure of Closed Police Investigation Reports, OIP Op. Ltr. No. 95-21 (Aug. 28, 1995).

Information in an investigatory record compiled for law enforcement that would disclose the identity of a confidential source is exempt from disclosure. Idaho Code § 72-124(1)(d).

Closed, pursuant to 5 ILCS 140/7(1)(d)(iv).

Indiana Code Section 4-2-7-8 provides that the identity of any individual who discloses in good faith to the inspector general information alleging a violation of a state or federal statute, rule, regulation, or ordinance is confidential and may not be disclosed to anyone other than the governor, the staff of the office of the inspector general, or an authority to whom the investigation is subsequently referred or certified, unless: (1) the inspector general determines in writing disclosure is in the public interest, or the individual consents to disclosure. Otherwise, confidential informants would be encompassed by Indiana Code Section 5-14-3-4(b)(1), which gives law enforcement agencies discretion to provide or deny access to investigatory records.

See generally Iowa Code § 22.7(5).

The identity of an undercover agent or informant is confidential. K.S.A. 45-221(a)(5). The identity of a confidential informant may be deleted from open records kept by law enforcement personnel. Kan. Att’y Gen. Op. 1982-226.

Records revealing confidential informants may be closed. See Ky. Rev. Stat. 61.878(1)(h).

Exempt. La. Rev. Stat. Ann. § 44:3(A)(2). State of Louisiana v. Ramsey, 60 So.3d 36, 41 (La.App. 5th Cir. 2011) (any record that would tend to reveal the identity of confidential informant is exempt from the Act).

Information on the identity of a confidential source is generally confidential as an intelligence and investigative record.  16 M.R.S.A. § 804(4).  In addition, Maine recognizes an informant identity privilege pursuant to M.R.Evid. 509(a).  “[A]n `informant' is a person who has furnished information relating to or assisting in an investigation of a possible violation of law to . . . [a] law enforcement officer conducting an investigation. . . .” Id.; see also Dubois v. Dept. of Agric., Conservation & Forestry, 2018 ME 68, ¶ 22, 185 A.3d 743.

Inspection of records, even by a person in interest, that would result in the disclosure of the identity of a confidential information is prohibited. § 4-351(b)(4); see also 4-332(d)(4). But, protecting the identity of a confidential source is not based on the purpose of preventing potential harm to the informant. “Rather, the purpose of the exception is to assist law enforcement officials in gathering information by ensuring reluctant sources that their identities would not be disclosed.” Bowen v. Davison, 135 Md. App. 152, 164 (2000). Accordingly, there must be an express or implied assurance of confidentiality to the informant. Id. at 164

Witness statements may be withheld (indefinitely) under exemption (f) if their release would create a grave risk of directly or indirectly identifying a private citizen who volunteers as a witness.  Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983) (defining “identifying details” and “grave risk of indirect identification”).

In Hyson v. Dep’t of Corrs., 205 Mich. App. 422, 521 N.W.2d 841 (1994), the Michigan Court of Appeals held that the identities of confidential informants must be undisclosed because of the security risk posed to the informants.

Data identifying an informant can be withheld if the agency determines that disclosure would threaten the informant’s safety. Minn. Stat. § 13.82, subd. 17(c).

Records that would reveal the identity of informants fall under the definition of “investigative report.” See N.4.a and N.4.b above; § 25-61-3(f)(ii).

Law enforcement agencies are afforded discretion to withhold arrest, incident, or other reports or records if they contain information that is “reasonably likely to pose a clear and present danger to the safety of any victim, witness, undercover officer or other person.” Mo.Rev.Stat. § 610.100.3. See Hyde v. City of Columbia, 637 S.W.2d 251 (Mo.Ct.App. 1982) (judicially created exception permitting withholding of victim’s name while accused was still at large.

Confidential informants are private criminal justice information and not available for public dissemination.

There is no law on point. To the extent information about a confidential informant is part of an investigative record it may be withheld.

See Donrey of Nevada, Inc. v. Bradshaw, 106 Nev. 630 (1990).

Neither the Statute nor case law addresses this issue. Under Murray v. New Hampshire Div. of State Police, 154 N.H. 579 (2006); Lodge v. Knowlton, 118 N.H. 574 (1978), applying the six-prong test under the Freedom of Information Act for evaluating access to investigative files under 5 U.S.C. § 552(b)(7), such records probably would not be disclosed.

The identities of confidential informants are not accessible under OPRA, because they are exempted as part of “criminal investigatory records.”

The identity of such an informant is not available to the public. NMSA 1978 § 14-2-1(D)(2)(b).

An agency may deny access to records or portions thereof that are compiled for law enforcement purposes and which, if disclosed, would identify a confidential source or disclose confidential information relating to criminal investigations. N.Y. Pub. Off. Law § 87(2)(e)(iii) (McKinney 1988).

For cases on confidentiality, see Matter of Exoneration Initiative v New York City Police Dep’t, 114 A.D.3d 436, 980 N.Y.S.2d 73 (1st Dep’t 2014) (holding portions of a record must be disclosed in the absence of any evidence that informant received an express or implied promise of confidentiality); Matter of Gomez v. Fischer, 74 A.D.3d 1399, 902 N.Y.S.2d 212 (3d Dep’t 2010) (“Statements by a witness must be disclosed absent a showing that he or she was a confidential informant or requested or was promised anonymity, or that his or her life or safety would be endangered by disclosure.”); Laureano v. Grimes, 179 A.D.2d 602, 579 N.Y.S.2d 357, (1st Dep’t 1992) (granting access to police memo books of investigation where no assertion of promise of confidentiality and confidentiality, if given, was lost since witnesses later testified); Ennis v. Slade, 179 A.D.2d 558, 579 N.Y.S.2d 59 (1st Dep’t 1992), motion for leave to appeal denied, 79 N.Y.2d 758 (1992) (records of a “buy operation” were compiled for law enforcement purposes and if disclosed would reveal confidential sources and information); Geames v. Henry, 173 A.D.2d 825, 572 N.Y.S.2d 635 (2d Dep’t 1991) (granting access to conviction record); Cornell University v. City of New York Police Dep’t., 153 A.D.2d 515, 544 N.Y.S.2d 356, (1st Dep’t 1989), leave denied, 75 N.Y.2d 707 (1990) (granting disclosure of police investigative file where witnesses were not promised anonymity); Auburn Publisher Inc. v. City of Auburn, 147 A.D.2d 900 (4th Dep’t 1989) (denying access to affidavits in police investigation); Allen v. Strojnowski, 129 A.D.2d 700, 514 N.Y.S.2d 463 (3d Dep’t 1987), motion for leave to appeal denied, 70 N.Y.2d 871, 518 N.E.2d 5, 523 N.Y.S.2d 493 (1987) (denying access to names, addresses and statements of confidential witnesses); Radio City Music Hall Productions v. New York City Police Dep’t, 121 A.D.2d 230, 503 N.Y.S.2d 722 (1st Dep’t 1986) (granting access to police investigation reports after redacting names and statements of confidential witnesses); Hawkins v. Kurlander, 98 A.D.2d 14, 469 N.Y.S.2d 820 (4th Dep’t 1983) (denying access to interviews made under promise of confidentiality in connection with investigation which did not lead to filing of charges); Gannett Co. v. James, 86 A.D.2d 744, 447 N.Y.S.2d 781 (4th Dep’t 1982), appeal dismissed, 56 N.Y.2d 502, 435 N.E.2d 1099, 450 N.Y.S.2d 1023 (1982) (denying access to records of complaints against police officers which might identify a confidential source); State Police v. Boehm, 71 A.D.2d 810, 419 N.Y.S.2d 23 (4th Dep’t 1979) (requiring disclosure of identities of confidential informants was an abuse of discretion); Walker v. City of New York, 64 A.D.2d 980, 408 N.Y.S.2d 811 (2d Dep’t 1978) (denying access to identities of confidential informants as well as confidential information relating to criminal investigation); Ragusa v. New York State Dep’t of Law, 152 Misc.2d 602, 578 N.Y.S.2d 959 (Sup. Ct. 1991) (ordering disclosure of Attorney General’s investigation records where no assurance of confidentiality was made in this case); Matter of Spruils, N.Y.L.J. July 28, 1995 (Sup. Ct. New York Cty., 1995) (denying access to police officer’s memo book which might contain names, addresses and statements of confidential witnesses on personal hardship grounds); Elmira Star-Gazette v. Strojnowski, No. 9924-84 (Sup. Ct., Albany Cty., Nov. 7, 1984) (denying access to state police reports containing identities of confidential sources); Kwoczka v. Cawley, 103 Misc.2d 13, 425 N.Y.S.2d 247 (Sup.Ct. 1980) (denying access to testimony, audio and videotapes of undercover police investigation where such disclosure would identify informants); Petix v. Connelie, 99 Misc.2d 343, 416 N.Y.S.2d 167 (Sup. Ct. 1979) (denying access to state police internal investigation report to protect identities of confidential informants).

Confidential informants are not specifically addressed by statute but likely could be withheld as criminal intelligence or criminal investigative records. G.S. § 132-1.4(b).

Any information that would identify or provide a means of identifying a confidential informant, if the identity of the informant is not otherwise publicly known, is confidential. N.D.C.C. § 44-04-18.3(4).

The identities of confidential informants are not public record, nor is information that, if released, would tend to identify the informant. If releasing a record would endanger the safety of a confidential informant, the record is exempt as a confidential law enforcement investigatory record.  Ohio Rev. Code §§ 149.43(A)(1)(h), 149.43(A)(2)(d).

There is no statutory or case law addressing this issue.

ORS 192.355(4) (formerly ORS 192.502(4)) exempts “[i]Information submitted to a public body in confidence and not otherwise required by law to be submitted, where such information should reasonably be considered confidential, the public body has obliged itself in good faith not to disclose the information, and when the public interest would suffer by the disclosure.”

65 Pa. Stat. Ann. § 67.708(b)(16)(iii) exempts “[a] record that includes the identity of a confidential source.”

Law enforcement agency investigative records which could reasonably be expected to disclose the identity of a confidential source are exempt from disclosure.  R.I. Gen. Laws § 38-2-2(4)(D)(d).

May be withheld if the disclosure would interfere with a law enforcement agency under one of the law enforcement exemptions provided in SC FOIA.  S.C. Code Ann. § 30-4-40(a)(3). One of those exemptions deals directly with confidential informants which allows an exemption for disclosure of information that “would disclose the identity of a confidential source, including a state, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation, by an agency conducting a lawful security intelligence investigation, or information furnished by a confidential source.”  S.C. Code Ann. § 30-4-40(a)(3)(D).

Closed, presumably, in possession of law enforcement. SDCL §1-27-1.5 (5). However, possibly different as court document. Temporary sealing of affidavit in support of search warrant suggests possibility of disclosure. SDCL §23A-35-4.1.

No specific provision, so provisions concerning investigations would seem to cover this.

Generally the identity of confidential informants and his statements are exempt. See id. at 187; see also City of Carrollton v. Paxton, 490 S.W.3d 187, 200–02 (Tex. App.—Austin 2016, pet. denied).

Records that reasonably could be expected to disclose a confidential police informant’s identity are protected from public disclosure. Utah Code § 63G-2-305(10)(d).

Records dealing with the detection and investigation of crime are exempt from disclosure, including records that:

“could reasonably be expected to disclose the identity of a confidential source, including a state, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source.”

1 V.S.A. § 317(c)(5)(a)(iv).

The identity of any individual providing information about a crime or criminal activity under a promise of anonymity shall not be disclosed. Va. Code. Ann. § 2.2-3706.C.

May be exempt pursuant to the Public Records Act’s investigative record exemption, RCW 42.56.240(1).

(This section is blank. See the point above.)

Information that would identify a confidential informant must be deleted from a public record before disclosure. Wis. Stat. § 19.36(8).

No Wyoming cases have discussed this issue.