The Washington PostDemocracy Dies in Darkness

Here’s why releasing Josh Duggar’s records was probably not illegal

Josh Duggar speaks at the Family Leadership Summit in Ames, Iowa, on Aug. 9, 2014. (Brian Frank/Reuters/file)
Placeholder while article actions load

The Duggar family took to the offensive on Wednesday when they claimed on Fox News that Springdale, Ark., city officials released protected police records related to a sexual molestation investigation involving their son, Josh.

And Friday night, in the second part of the Fox interview, two of the Duggar sisters, Jessa and Jill, are expected to further criticize authorities for releasing the files.

But does the family have a valid legal claim against the city?

The answer is a resounding no, according to several experts on the Arkansas Freedom of Information Act (FOIA).

“I don’t think they have a leg to stand on,” said John E. Tull III, a lawyer for the Arkansas Press Association who frequently represents newspapers in cases related to FOIA. “I don’t see any basis for any sort of lawsuit. I guess there could be some sort of privacy claim, but good luck with that.”

[‘Most of the stuff out there is lies,’ Josh Duggar’s sister says]

In a response to the Duggar family’s claims on Fox News, Springdale city attorney Ernest Cate released a statement defending the release of the report to In Touch magazine.

“The requested record was not sealed or expunged, and at the time the report was filed, the person listed in the report was an adult,” he wrote. “Any names of minors included in the report, as well as pronouns, were redacted from the report by the Springdale Police Department in compliance with Arkansas law prior to release.”

Jim Bob and Michelle Duggar, stars of "19 Kids and Counting," tell Megyn Kelly they were "devastated" following sexual misconduct allegations about their son, Joshua Duggar. The couple appeared in an interview on Fox News's "The Kelly File" on June 3. (Video: The Kelly File)

Tull and other lawyers told The Washington Post that officials in Springdale simply followed FOIA by disclosing the records, which were redacted to protect the victims’ names and gender.

“It’s not a case I would ever take, including if they paid me,” said attorney Tré Kitchens, of the Brad Hendricks Law Firm of Little Rock. “They don’t have a viable claim based on the facts as I know them.”

Much of the discussion about the Duggar family’s possible legal claim has centered on one main question: Aren’t juvenile records kept private?

In most cases, they are. In 2009, Arkansas lawmakers revised the state code to provide additional protection for juvenile records. The law very clearly states that “all records are closed and confidential,” except for a handful of narrowly tailored exceptions. And most records are expunged by the time the juvenile turns 21, according to the code.

[Josh Duggar molested four of his sisters and a babysitter, parents tell Fox News]

But the Duggar case never made it into the juvenile court system, or any court system, for that matter. The alleged crimes occurred in 2002 and 2003, but the police investigation did not occur until 2006. By that time, Josh Duggar was already an adult at age 18, so the state code covering the confidentiality of juvenile records would not apply to this case, legal experts have said.

If the Duggars were to pursue legal action, they’d have an uphill battle, experts say. Journalists and advocates for public information consider Arkansas’s open records law to be one of the nation’s best.  The Arkansas state attorney general even describes it as one of “the most comprehensive and strongest” public records laws in the United States.

That means that there are very few legal exemptions for public officials to withhold documents. And if officials don’t comply with the law, they can face misdemeanor charges and fines. Just Thursday, for instance, the director of a Little Rock housing authority was found guilty of failing to comply with FOIA.

The Reporters Committee for Freedom of the Press provides a comprehensive guide on state-by-state open records laws for disclosing police records. In Arkansas, one of the most common exemptions for the release of law enforcement records concerns those related to ongoing criminal investigations. But that exemption would not be applicable in the Duggar case, as the investigation ended in 2006 after authorities determined the statute of limitations had expired for any possible crimes.

In 1997, Arkansas passed a Victim Rights Law that prohibits the release of a victim’s address or telephone number under FOIA. But since the victims’ names and gender were scrubbed from the police report, there appears to be no violation of that law, attorneys say.

(This piece has been updated to reflect the date of the alleged crime.)

Want more stories about faith? Follow Acts of Faith on Twitter or sign up for our newsletter.

How do evangelicals view the Duggars? It’s complicated.

Josh Duggar ‘found forgiveness and cleansing from Jesus Christ,’ in-law says

In a Duggar world, the real victims take a back seat to their parents